Indianapolis’ Amazon offer can remain secret, COA affirms

Indianapolis’ offer of taxpayer money and financial incentives in an unsuccessful attempt to lure a coveted second Amazon headquarters can remain secret, the Indiana Court of Appeals has ruled, rejecting an appeal by a tax trade publication that argued the offer must be disclosed as a public record.

Indianapolis was among some 200 cities and regions nationwide that submitted proposals competing to attract Amazon’s HQ2. The online retail giant ultimately decided to locate its massive $5 billion complex in northern Virginia.

The publisher Tax Analysts sought to gather comparative details of what cities had offered to lure Amazon, including from Indianapolis and the Indiana Economic Development Corporation. Many cities agreed, including Gary, which disclosed that the IEDC offered Amazon more than $1.5 billion in incentives to locate in the Lake County community, as well as the potential of $792 million from the city and another $2.75 billion in potential further incentives if approved by the General Assembly.

But Indianapolis and the IEDC refused to disclose their offers, leading Tax Analysts to sue, claiming the incentives were subject to disclosure under the Access to Public Records Act. The Marion Superior Court ruled against Tax Analysts, holding that the records were exempt from disclosure under APRA because they were created during negotiations and did not include terms of a final offer of public financial resources.

The Indiana Court of Appeals agreed Thursday, parsing the meaning of the word “final” from the Merriam-Webster Dictionary as “not to be altered or undone”.

“(R)ecords relating to negotiations are not disclosable under (APRA) unless they contain the terms of an offer that, if accepted, would commit public financial resources; that is, the offer must be final in the sense that it is not intended to be altered or undone in future negotiations,” Judge L. Mark Bailey wrote for the panel in Tax Analysts, et al. v. Indiana Economic Development Corporation, 20A-PL-1141.

The COA noted Indianapolis was a finalist invited to compete in a second round for HQ2, and the city proposed two sites rather than one. “Moreover, the language used in each site proposal also contained a lack of finality. For each site, the IEDC provided estimates of various costs, and it noted that the final costs would be dependent upon facts existing in the future, such as the size of the HQ2 building. The IEDC Response also discussed potential future agreements, 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. Such conditional language is evidence that the two site offers in the IEDC Response were to be altered — and one of them ‘undone’ — in the future if Amazon chose Indianapolis for its HQ2,” Bailey wrote.

“We hold that the IEDC’s responses to both Amazon’s initial (request for proposal) and its subsequent (request for information) and questionnaire were parts of on-going negotiations with Amazon that had not developed yet into ‘terms of the final offer of public financial resources.’ … As such, the IEDC had discretion to deny TA’s request for copies of those records.”

Indianapolis attorney William Groth, who represented Tax Analysts, said TA is considering its options for appeal. He said in an email Thursday that the appeals court ruled on the ambiguity of whether the offer was final, and that under APRA, ambiguities “are to be interpreted in favor of disclosure wherever possible.”

“It’s disappointing the COA opted for an interpretation that has kept the public in the dark on a matter of such vital public importance and interest,” he said.

The Hoosier State Press Association joined the case as amicus in favor of Tax Analysts.

IL reached out to an attorney representing the city of Indianapolis in the case.

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