Open records lawsuit seeks documents on failed Fall Creek Falls State Park privatization effort

The Nashville Post and Nashville Scene, sister publications with the same ownership, have filed a lawsuit in Davidson County Chancery Court against the state Department of General Services under Tennessee’s Open Records Act, contending officials wrongfully refused to release documents related to a failed attempt at outsourcing operation of the Fall Creek Falls State Park Inn.

From the Nashville Post report:

Despite a lengthy and involved RFP process, with meetings and site visits, no one submitted a formal proposal to bid on the project by the deadline earlier this month, possibly because of the cost of asbestos removal when demolishing the inn.

However, there’s no way to know why the project fell apart, because the state won’t release the emails and documents created during the six-month procurement process. The Post alleges this is in violation of the law and has sued accordingly.

(A quoted statute says documents related to contract bids “shall be available for public inspection only after the completion of evaluation of same by the state.”)

…The state contends that, as no proposals were submitted, there was nothing to evaluate, and thus they do not need to release any records relating to the incomplete proposal process.

“A procurement file is not considered a public record until such time as all proposals have been evaluated,” said DGS spokesperson David Roberson in a May 11 email. “I’ve confirmed with our attorneys this morning that correspondence with potential bidders would also be part of the file, and thus would not become public record until the entire file did. This has been the consistent position of the State.”

“My understanding from the attorneys is that there are good public policy reasons for the files not becoming public — if there is a similar subsequent RFP, knowledge of contents of the file from the previous RFP could compromise the procurement,” Roberson added in a subsequent email.

Further discussions between the Post’s legal counsel, John Williams, and DGS’s attorney, Thad Watkins, resulted in no change in the state’s position.

The article goes on to quote sections the lawsuit (a full copy is posted HERE) that, basically, say the department is looking at things the wrong way, legally speaking: The plaintiffs agree that, because no proposals were submitted, there was nothing to evaluate. But the lawsuit argues that means the process was covered by general open records law, not the statute dealing with completion of an evaulation.  “Thus, all records associated with this RFP must be made available for public inspection now. They are “public records” within the meaning of Tenn. Code Ann. § 10-7-503(a)(1), and there is no exception which shields them from disclosure…. Petitioners respectfully contend that the respondent has no legitimate interest in concealing from the public the discourse that occurred between possible proposers and the Department regarding this important topic of privatization of state services.

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