Nashville Post Stephen Elliott and his employer FW Publishing is suing the state for access to a consultant’s report related to government efficiency and COVID-19 recovery.
In the second public records lawsuit against Gov. Bill Lee’s administration in a matter of weeks, Nashville Post journalist Stephen Elliott says that the administration’s claim of a “deliberative process privilege” to keep secret a consultant’s reports during the COVID-19 pandemic has no basis in state law.
The lawsuit aims to gain access to reports to the administration by consultant firm McKinsey & Co. concerning the “re-opening of Tennessee,” “government operations” and “support to the Unified Command Group.” The state paid McKinsey $3.8 million for the reports, which were completed between April and October 2020.
Significant public interest in McKinsey reports
“There is significant public interest in the requested public records, which all relate to the three-million-dollar no-bid contract awarded to McKinsey,” the lawsuit states. “The public has a right to know what the State received for the millions spent on the McKinsey Contract.”
“The public has an equal interest in knowing the entirety of the information provided to Governor Lee and the UCG/ERG (Unified Command Group/Economic Recovery Group) to assist them in responding to the COVID-19 pandemic…” the lawsuit says. “Similarly, the McKinsey Efficiency Records, which involve the restructuring of the executive branch of the Tennessee State Government and relates to the impact the COVID-19 Pandemic has had on the provision of State government services to the public, is also a matter of significant public interest.”
Paul McAdoo with the Reporters Committee for Freedom of the Press is representing Elliott and his employer, FW Publishing LLC. McAdoo is part of RCFP’s Local Legal Initiative which provides legal services to journalists in five states including Tennessee.
In December, Nashville citizen and state employee Thomas Wesley filed a public records lawsuit against the state to try to gain access to the government efficiency reports that were part of the overall McKinsey work. Thomas also was denied access, with the state claiming the documents were confidential under a “deliberative process privilege.”
Suit: ‘Deliberative process privilege’ not an exception to public records law
Elliott’s lawsuit claims that the “asserted deliberate process privilege has not been established by statute, binding case law, or other state law and is not an exception to the Tennessee Public Records Act.” And even if the court finds that the deliberative process privilege has been established in Tennessee as an exception, the privilege would not apply because some or all of the information in the records sought was prepared by an outside consulting firm, is factual, not deliberative in nature, and is “postdecisional” not “predecisional.”
Both lawsuits refer to the contract and statements of work with McKinsey as evidence that the reports were not policy advice. Elliott’s lawsuit states that “McKinsey explicitly disclaimed any agreement to provide policy advice and instead made clear that the relationship between the State and McKinsey was not the same as a close advisor who serves on the Governor’s staff or in his cabinet.”
The reports, by contract, were to include data, case studies, possible scenarios, analysis and fact-based options.
The two lawsuits are the first to challenge the Lee administration on a purported “deliberative process” privilege to withhold public records. But the administration has liberally cited deliberative process before in denying access to records. In 2019, the administration refused The Tennessean’s request for recommendations from the 22 executive branch departments on how to improve services in rural parts of the state. A report from one of the agencies, the Department of Health, was leaked to The Tennessean anyway. It contained recommendations such as bolstering tobacco-prevention initiatives and improving access to specialty health services.
First mention of ‘deliberative process’ involved death row inmate case
The memorandum of law filed with the Elliott lawsuit observes that the first mention of deliberative process privilege in Tennessee appellate courts was in a 2004 ruling involving a federal public defender who sought a district attorney’s files about potential new evidence in a death row inmate case. The appeals court in Swift v. Campbell found that the requested records were protected from disclosure under discovery rules because a federal proceeding challenging the state was still pending, but not because of a “deliberative process privilege.”
The court assumed that such a privilege might apply in some instances, but warned that a “deliberative process privilege must be applied cautiously because it could become the exception that swallows up the rule favoring governmental openness and accountability.”
Elliott argues that a deliberative process privilege should not be adopted as an exception to the Public Records Act for the records he is seeking. “The General Assembly sets the public policy of Tennessee, and the Tennessee Supreme Court has held that it is the General Assembly, not the courts, that should decide whether a privilege, like a deliberative process privilege, should be adopted as an exception to disclosure under the TPRA.”
