An Indiana economic development agency won’t be required to disclose Indianapolis's Amazon HQ2 proposal under an advisory opinion issued in response to a complaint filed on behalf of Tax Notes.
In an April 11 opinion, Indiana Public Access Counselor Luke Britt determined that the Indiana Economic Development Corp. (IEDC) did not violate the state Access to Public Records Act when it denied Tax Notes’ January 16 public records request for records and emails related to the city’s bid.
Indianapolis was among 238 localities that submitted proposals for Amazon.com Inc.’s second headquarters, a project that promised up to 50,000 high-paying jobs and an investment of $5 billion. The city was one of 20 locations included in the company’s shortlist. On November 13, 2018, the online retailer announced a decision to split the headquarters between locations in Northern Virginia and in the New York City neighborhood of Long Island City. The company has since pulled out of New York City because of political opposition to the project, announcing in February that it does not intend to reopen the HQ2 search.
The IEDC denied Tax Notes' request January 23, citing an exemption under Indiana Code section 5-14-3-4(b)(5)(A)(i), which allows the agency discretion to withhold records relating to negotiations between the IEDC and an industrial, research, or commercial prospect if the records are created while negotiations are in progress.
The complaint argued that the records should be disclosed under section 5-14-3-4(b)(5)(B), which requires the IEDC to release the terms of a financial offer of public resources “after negotiations with that prospect have terminated.”
In a March 4 letter addressed to Britt, IEDC Chief Operating Officer Chris Cotterill argued that disclosure is not required under the provision because “there has never been a final offer.”
“Forcing the IEDC to release its initial proposals and other documents related to its negotiations would place Indiana at a significant competitive disadvantage because other states, prospects, and their advisors would know critical aspects of Indiana’s negotiating strategies and then use that information against Indiana in the future,” Cotterill said.
He added that the agency “must and will vigorously protect the IEDC’s confidential negotiations with Amazon and Amazon’s confidential information to protect and enhance a relationship that has helped enable Amazon to employ more than 9,000 Hoosiers and to protect and enhance the IEDC’s ability to help bring economic gains to all Hoosiers.”
Britt determined that although the proposal submitted by the IEDC on behalf of Indianapolis “arguably communicates the terms of an offer of public financial resources,” the public access counselor’s office is “not privy to the contents of the proposal and there is no authority defining finality.” Without the information, Britt declined to conclude that a violation occurred.
Britt did not seek to review the contents of the proposal. He told Tax Notes April 11 that he “doesn’t ask [to review it] unless it’s offered per our policy." In this case, it wasn’t.
In contrast, the city of Gary released its HQ2 proposal in August 2018, in response to a complaint filed by Tax Notes with the public access counselor. The proposal revealed that the state was willing to offer up to $2.75 billion in incentives to lure the HQ2 project to Gary.