The Indiana Publisher

January 2021 Page 6 Andrea Muse Tax Analysts The Indiana Court of Appeals has ruled that a state economic development agency is not required to disclose records relating to Indianapolis's Amazon HQ2 pro- posal under the state's Access to Public Records Act (APRA). The court held December 31, 2020, in Tax Analysts v. Indiana Economic Development Corp. that the records were created during negotiations and were not a final offer of public resources, agreeing with the trial court that the Indiana Economic Development Corp. (IEDC) did not have to disclose the records under the APRA. Cornish Hitchcock of Hitchcock Law Firm PLLC, counsel for Tax Analysts, told Tax Notes December 31, 2020, that the court concluded that the records at issue did not con- stitute a "final offer" under the stat- ute but did not specify what a final offer looks like. He added that the law requires fully executed incentive agreements to be public but said it remains unclear what other records must be disclosed under the statute. Hitchcock also noted that the city of Gary released its HQ2 pro- posal in August 2018, in response to a complaint filed by Tax Analysts with the public access coun- selor. Stating that the Gary records showed that the IEDC authorized roughly $1.5 billion in incentives, Hitchcock said that there is a public interest in seeing how much the IEDC was willing to spend to bring the headquarters to Indianapolis. The IEDC declined to comment. Indianapolis was among 238 localities that submitted proposals for Amazon.com Inc.'s second head- quarters and was one of 20 to make the company's shortlist. The project promised up to 50,000 high-paying jobs and an investment of $5 billion, though the company announced in November 2018 that it would split the headquarters between locations in Northern Virginia and New York City. The company has since pulled out of New York City because of political opposition. Tax Analysts submitted a public records request in January 2019 for records relating to Indianapolis's proposal, which the IEDC denied. The IEDC asserted that the records were exempt under Indiana Code section 5-14-3-4(b)(5)(A)(i), which allows the agency the discretion to withhold records created while negotiations are in progress between the agency and an industrial, research, or commercial prospect. Tax Analysts filed a complaint with the Indiana Public Access Counselor, arguing that the records should be disclosed under section 5-14-3-4(b)(5)(B), which requires disclosure of the terms of a final offer of public financial resources after negotiations have been termi- nated. Hitchcock said the court con- cluded that the records at issue did not constitute a 'final offer' under the statute but did not specify what a final offer looks like. But Public Access Counselor Luke Britt determined that the IEDC did not violate the APRA in an April 2019 opinion, stating that it was unclear whether the General Assembly intended a "final offer" to be "something closer to a best and final offer" or "intended to include any and all 'last' offers as in a sequential order." Tax Analysts filed a complaint with the Marion County Superior Court alleging that the IEDC violated the APRA by refusing to disclose the records, but the trial court agreed with the IEDC that the records were negotiation documents and were not a final offer that was required to be disclosed. According to the appellate court, the IEDC and Indianapolis collectively contributed to the response to Amazon's request for a proposal, and the response "indi- cated dollar amounts to which the City and the State of Indiana would commit to bring Amazon's HQ2 to the region but provided only general overviews and estimates of financial incentives." Citing documents the court reviewed in camera, the court stated that Amazon sent the city a request for information that included a detailed, confidential questionnaire when it announced the city had made the shortlist, adding that the IEDC portion of the questionnaire's response "provided two proposed sites for Amazon's HQ2 and pro- vided some information about each of those sites." The court continued that the documents "referenced an oppor- tunity to discuss proposed future agreements that would be required regarding utilities options, includ- ing potential improvements to existing utilities" and "contained 'propos[als] to offer' additional transportation." The court noted that the APRA does not define a "final offer," con- cluding that the statute is ambigu- ous. The court looked to the legisla- tive history to narrow the definition of the term "final offer," finding that the history indicated an intent to keep these types of negotiations private despite the APRA. The court stated that the legis- lature amended the law to exempt records created while negotiations were in progress, after an attorney general opinion concluded that records were only exempt while negotiations were in progress and became available to the public once negotiations were terminated. The court continued that it "can logically infer from those statutory changes that the legislature envi- sioned that there would be some situations in which negotiations did not result in a disclosable 'final offer' or incentive agreement" and that "therefore, 'final offer' must mean something more than simply the last offer in a sequence of negotiations." Concluding that the Merriam- Webster dictionary's definition of "final" to mean "not to be altered or undone" is consistent with the statu- tory language and its legislative his- tory, the court held that the language in the records was evidence that the offer was to be altered or changed at some point and was not final. The court stated that Amazon's request for proposal set out that it was mere- ly an invitation for proposals and the job numbers and salaries were esti- mates and subject to change. "The IEDC Response also discussed potential future agree- ments, projects, developments, and timelines that would be dependent upon which Indianapolis location Amazon chose for its site and/or what the HQ2 would look like," the court added. The plaintiffs in Tax Analysts v. Indiana Economic Development Corp. (Case No. 20A-PL-1141) were represented by attorneys from Vlink Law Firm LLC, Macey Swanson Hicks & Sauer LLP, and Hitchcock Law Firm PLLC. Court: EDA not required to disclose Amazon bid records Tax Analysts filed a complaint with the Indiana Public Access Counselor, arguing that the records should be disclosed ... Looking for an employee? Post your open positions at www.hspa.com/jobs/post-a-job/ or email info to sgoldsby@hspa.com. 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