Tennessee agrees to release $1.5 million taxpayer-funded McKinsey & Co. report following lawsuit

·3 min read

After months of shielding a $1.5 million taxpayer-funded report from the public, Tennessee has agreed to release the public record rather than fight a lawsuit from a state employee.

The decision came days before state attorneys were due in Davidson County Chancery Court on Tuesday for a show cause hearing in the lawsuit, filed by Thomas Wesley against the Tennessee Department of Human Resources in December.

Wesley requested a copy of the report, prepared by McKinsey & Co., but was denied the records, which included recommendations on improving "government efficiency" and Tennessee's response to the COVID-19 pandemic.

In a late Friday order, Chancellor Patricia Head Moskal cancelled the hearing after the Tennessee Attorney General's office informed Wesley's attorney it planned to "grant public access" to the record.

More: Tennessee sued for not releasing COVID report by contractor McKinsey & Co.

Samantha Fisher, communications director at the Attorney General's office, confirmed Tennessee has "decided to make the McKinsey Efficiencies Report public."

“The State had no legal basis to withhold the McKinsey report," said Wendy Liu, attorney with the Public Citizen Litigation Group that helped represent Wesley in the lawsuit. "We’re glad to see that the State is granting public access to the report.”

The Tennessean first requested the McKinsey report in February 2021, but the state denied the request. Tennessee officials initially refused to even provide a description of the report's purpose, despite paying out $1,592,012 to McKinsey, which delivered the completed report in September 2020.

Wesley later filed his own public records request for the document and Lee administration officials also cited "deliberative process" when shielding the taxpayer-funded report, an exemption to public records laws that experts say is widely overused and not specified within state law. Lt. Gov. Randy McNally, R-Oak Ridge, later called for Lee to release the report, saying it should be made available to the public and the legislature.

The Lee administration cited deliberative process in 2019 when it refused to release recommendations state agencies submitted on improving rural Tennessee.

More: Exclusive: How one state agency recommends Gov. Bill Lee address the health issues facing rural Tennessee

Kevin Goldberg, a First Amendment specialist at the nonprofit Freedom Forum, said the deliberative process exemption was intended to "allow people in government to speak freely amongst themselves, brainstorm, bounce ideas off of each other without it coming back to haunt them."

There is no actual mention in state law of the deliberative process exemption, which is specifically outlined in federal law. The few times Tennessee judges have weighed in on the issue have involved private discussions, such as meeting notes or staff communications.

Private discussions are not equal to a completed report, Goldberg said.

"This is not deliberative because government money was spent to produce this report," Goldberg said. "This was something that was budgeted, paid for and produced. People need to know about it. The second part of the problem here is the way in which it was a applied, as an all or nothing approach. Open records laws at the state level say you are supposed to redact rather than withhold."

Lee's office last year defended its decision to shield the report under deliberative process, with communications director Laine Arnold saying outside analysis like the McKinsey report is meant "to inform a potential decision but does not represent the position of the administration."

Goldberg said even if Tennessee officials chose not to follow recommendations in the report, it is still a public record funded by taxpayers.

"It’s a record. It’s a document," Goldberg said. "Even if it wasn’t the answer that was reached, this report was specific enough that it still has value for the public to see what alternatives were considered and were rejected."

More: Gov. Bill Lee's administration won't release McKinsey & Co. report on employee buyouts, 'government efficiency'

Moskal on Friday ordered both parties to submit a joint report within two weeks about any lingering issues in the case.

The Nashville Post also sued earlier this month over multiple reports compiled under McKinsey's contract with the state in 2020, a broader scope than Wesley's lawsuit. The Attorney General's office on Monday said a copy of the efficiencies report had been provided to Post lawyers, but a show cause hearing in the lawsuit is still set for Tuesday afternoon.

Reach Melissa Brown at mabrown@tennessean.com.

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This article originally appeared on Nashville Tennessean: Tennessee agrees to release public record report after lawsuit

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