In January of last year, Stephen Elliott and Nashville Scene parent company FW Publishing filed a public records lawsuit against the state. This week, almost precisely a year later, the Davidson County Chancery Court ruled on behalf of Elliott and FWP, ordering that Gov. Bill Lee’s office release withheld documents pertaining to a no-bid contract.
Elliott is a reporter for the Scene and acting editor for our sister publication the Nashville Post. He and FW Publishing — represented by Paul McAdoo with the Reporters Committee for Freedom of the Press — named Gov. Lee and Tennessee Department of Human Resources Commissioner Juan Williams in the lawsuit in order to gain access to reports by consulting firm McKinsey & Co. The firm was awarded a $3 million no-bid contract to issue reports regarding the state’s reopening as well as “government operations” and “support to the Unified Command Group.”
The reports were completed in 2020, and the Lee administration claimed “deliberative process privilege” in keeping the findings secret. "Deliberative process” privilege protects “information that would identify those areas of structural or operational vulnerability [of the state]."
Chancellor Patricia Head Moskal ruled this week that "the withheld and redacted records are public records under the Tennessee Public Records Act, the withheld and redacted records are not excepted from disclosure by the deliberative process privilege, and the petition should be granted." "Deliberative process" is not one of the hundreds of stated exemptions allowed under the Tennessee Public Records Act, and, the judge ruled, "even assuming the deliberative process privilege were deemed to be an exception to the TPRA, the Court concludes the deliberative process privilege does not extend to and protect the withheld and redacted documents in this case."
Tennessee Deputy Attorney General Janet Kleinfelter claimed during the proceedings that Elliott — a longtime Nashville resident — is not a “citizen” of the state, and thus not entitled to file a public records request in Tennessee. Moskal also determined that this was incorrect.
"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 says. "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."
The state has until Feb. 2 to appeal the court’s ruling. Moskal also ruled that the state does not have to pay legal costs for the plaintiffs. See a PDF of Chancellor Moskal's memorandum and order below.