Tennessee Man Sues State for Denying Public Records Request for COVID-19 Response Report

A Tennessee state employee filed a lawsuit against the state after his public records request for the state's COVID-19 response report was denied.

Thomas Wesley, a state employee, filed a public records request to gain access to a government report that showed a recommendation on how the state should respond to the COVID-19 pandemic but his request was denied.

The Public Citizen Litigation Group helped Wesley file a lawsuit against the state's Department of Human Services for its decision to deny his request, said Wendy Liu, an attorney with the group.

According to court documents, an attorney for the Department of Human Resources denied the request because the records are "subject to the deliberative process privilege and contain confidential information that is subject to the exception for information regarding operational vulnerabilities."

Wesley's attorneys argued the report doesn't meet the exemption requirements because it's a final report and "does not reflect conversations or deliberations among high government."

Even if the COVID-19 report contained "operational vulnerabilities," the state would still be required to redact the sensitive information and hand over the report, according to the lawsuit.

"The information in the report—which contains information about Tennessee's COVID-19 response in connection with the State's operations as a public employer—is directly relevant to public employees and all Tennessee citizens," said Liu in a statement. "There is no basis for Tennessee to withhold the McKinsey report from public access."

The report was prepared by McKinsey & Co at the request of Governor Bill Lee's administration.

The consulting firm was required to provide a "government efficiency assessment and review to identify potential performance improvements and assist the state's response to the COVID-19 pandemic including but not limited to cost efficiency, citizen and state employee experience, overall government effectiveness, state government department review, and fiscal benchmarking and forecasting."

The lawsuit counters that the report does not fall under a deliberative process exemption, which the attorneys note isn't in state law or rules but was described in a 2004 intermediate appeals court decision. Under that ruling, the court determined that certain documents could remain secret if officials deem them part of their decision-making process.

Additionally, the lawsuit says the "operational vulnerabilities" exception is meant to apply to the state's computer systems or technical networks.

Lee's office regularly cites deliberative process to exclude certain documents when producing records requested by the Associated Press, often when it comes to communications of members of his team.

"It is important to protect conversations between the governor and his closest advisers so they can have frank conversations," said Deborah Fisher, executive director of the Tennessee Coalition for Open Government. "There is a reason for that, but it seems this exemption has been expanded to any advice that the governor's administration may receive."

"In my view, this particular governor's admin has used this exemption more aggressively than other administrations," Fisher added.

Early in his administration, Lee's office also cited "executive privilege" more than a dozen times as a reason to withhold some records, though his team argued they were using the term interchangeably with deliberative process. Tennessee statutes, including the state's open records laws, do not define executive privilege. The Tennessee Constitution does not mention it.

Lee has since faced criticism from Democratic lawmakers and public health advocates over his handling of coronavirus outbreak in Tennessee. At times when Tennessee had among the worst virus rates in the country, the governor refused calls to issue a statewide mandate and instead stressed the importance of personal responsibility. Most recently, he's joined legal challenges seeking to block the implementation of federal COVID-19 vaccine requirements.

At the same time, he's also faced criticism from Republicans who are unhappy the governor issued any sort of restrictions early on in the pandemic.

McKinsey's work has been at the center of debate over the Lee administration's no-bid contracting during the COVID-19 pandemic.

McKinsey's services have drawn additional scrutiny because of the state's legal action against the firm over claims about its role in the opioid epidemic. Last April, Attorney General Herbert Slatery announced that Tennessee will receive $15.2 million from a larger $573 million settlement with McKinsey, targeted for its role in helping opioid companies promote their drugs.

Lee, a first-time politician, vowed to make government more transparent when he took over the top elected office in 2019.

However, the governor has not yet followed through on a promise to overhaul Tennessee's public records and open meeting laws that he initially promised during his transition.

The Associated Press contributed to this report.