Case Number: 22-0011-I
Court: Chancery Court of Davidson County, Tennessee, for the Twentieth Judicial District at Nashville
Clients: FW Publishing, Stephen Elliott
Petition for Access to Public Records Filed: Jan. 4, 2022
Background: In April 2020, shortly after the COVID-19 pandemic began, the state of Tennessee entered into a $3 million no-bid contract with McKinsey & Company, a global management consulting firm, to assist the state’s coronavirus response and to work on a government efficiency report.
Starting a month later, Stephen Elliott, interim editor of the Nashville Post and reporter for the Nashville Scene, submitted the first of three requests for public records related to the McKinsey contract. While the government eventually handed over some redacted records in response to Elliott’s requests, officials withheld many others, primarily arguing that they are exempt under the “deliberative process privilege.”
That privilege exists under the federal Freedom of Information Act, but it is often abused. However, the deliberative process privilege is not among the more than 500 statutory exemptions included in the Tennessee Public Records Act.
On behalf of Elliott and FW Publishing, Reporters Committee attorneys filed a lawsuit with the Davidson County Chancery Court seeking access to the records requested by the reporter, arguing that the government should not be able to withhold information based on a public records exemption that has not been established in Tennessee law by statute, rule or binding case law.
Reporters Committee attorneys also argue that the government should not be allowed to refuse to disclose government efficiency reports produced by McKinsey based on a TPRA exemption that is narrowly focused on computer information system security and applies minimally, if at all, to the records at issue.
The lawsuit asks the court to find that the requested records are not exempt from disclosure and order that they be released.
Quote: “These records are important to understand the State’s response to the COVID-19 pandemic, the State’s current buyout program for State employees, and the State’s spending of more than $3 million taxpayer dollars on private consultants,” RCFP Local Legal Initiative Attorney Paul McAdoo, who is representing Elliott and FW Publishing in this case, told Nashville Scene. “In addition to seeking access to these records, this lawsuit offers the Court an opportunity to decide whether Tennessee law recognizes the deliberative process privilege, including as an exception to the Tennessee Public Records Act. Where the privilege is recognized, including at the federal level, we regularly see it abused and broadly asserted to withhold information that should be public. If recognized in Tennessee, the deliberative process privilege would be a significant impediment to fully understanding how our government operates.”
Update: On Jan. 3, 2023, Davidson County Chancellor Patricia Head Moskal ruled in favor of Elliott and FW Publishing, concluding that “the deliberative process privilege does not extend to and protect the withheld and redacted documents in this case.”
“While we continue to believe that the common law deliberative process privilege should not be recognized by courts in Tennessee, we are pleased with the court’s finding that the McKinsey records would not be covered by such a privilege and must be disclosed,” McAdoo told the Nashville Post. “The release of this information is important to providing Tennesseans with a more complete understanding of the state’s response to the COVID-19 pandemic.”
2022-01-04: Petition for access to public records
2022-01-04: Petition Exhibit A
2022-01-04: Petition Exhibit B
2022-01-04: Memorandum Exhibit A
2022-01-04: Memorandum Exhibit B
2023-01-03: Memorandum and final order