State employee files public records suit over denial of COVID consultant report

By: - December 23, 2021 5:00 am
(Photo by Joe Raedle/Getty Images)

(Photo by Joe Raedle/Getty Images)

A state employee has filed suit against the Tennessee Department of Human Resources after being refused a copy of a tax-payer funded report prepared by McKinsey & Co, a global consulting firm hired to help guide the state’s response to the COVID-19 pandemic.

Thomas Wesley — described by his attorney as a state employee acting in his capacity as a Tennessee citizen entitled to access government documents under the state’s public records law — is asking a Davidson County Chancery Court judge to order state officials to appear in court to justify withholding the report, and to order its public release.

The report Wesley is seeking was commissioned by the state in April 2020 just as the pandemic was beginning. McKinsey is a Washington, DC-based international consulting firm that has been hired by the state to provide advice on a variety of public policy issues for more than a decade. The company has earned $43 million from its work with Tennessee government since 2013, according to a state contractor database that does not provide access to earlier payment information.

The state’s COVID contract with McKinsey outlines a series of “deliverables” in its work advising Gov. Bill Lee and state officials on pandemic response.

Among them, a “government efficiency assessment and review to identify potential performance improvements and assist the state’s response to the COVID-19 pandemic;” “data and best practices to inform the choices that the state will need to make as it re-opens Tennessee’s economy while still working to minimize further spread of COVID-19,” and “fact-based options to facilitate (Unified-Command Group) decision making.” The Unified-Command group consists of high-level state officials responsible for coordinating the Tennessee’s COVID response.

Attorneys for Thomas Wesley, a state employee seeking the McKinsey report, include William “Jay”  Harbison, II and Ronald Harris of Neal and Harwell.

Wesley submitted a public records request to the Department of Human Resources on Sept. 26 seeking a copy of the “government efficiency assessment” cited in the contract.

The next day, he was denied the records by Andrew Puryear, the department’s associate general counsel, according to copies of the email exchange filed in court.

“The documents requested are subject to the deliberative process privilege and contain confidential information that is subject to the exception for information regarding operational vulnerabilities,” Puryear wrote in his email denying Wesley the records.

Wesley’s attorneys say Puryear had no legal basis for withholding the records.

“Deliberative privilege extends only to communications among high-level government officials,” Wendy Liu, an attorney with the Washington D.C. based Public Citizen Litigation Group, said in a telephone interview Tuesday. Liu along with Nashville attorneys William Harbison II and Ronald Harris are representing Wesley. “We don’t have that here. Operational vulnerabilities is plainly about computers and technical infrastructure security.”

Tennessee’s public records law broadly allows residents to access state, county and municipal government documents in order to ensure accountability and transparency. The law includes specific exemptions to safeguard an array of confidential information kept by the public officials — information such as employee and voter social security numbers, records that identify children in state custody and trade secrets revealed in submissions from companies seeking economic incentives.

Altogether there are 538 exceptions to public records spelled out in Tennessee law, but “deliberative process” isn’t one of them, although it has been recognized in some instances by the state’s courts. The lawsuit argues that, should there be any confidential information contained in the McKinsey report, the state should instead redact that portion of the report instead of withholding it entirely.

Sen. Todd Gardenhire, R-Chattanooga, is questioning Gov. Bill Lee's no-bid contracts. (Photo: John Partipilo)
Sen. Todd Gardenhire, R-Chattanooga. (Photo: John Partipilo)

Wesley is not alone in seeking access to the taxpayer-funded work by the global consulting firm.

The Tennessean reported in March the Lee Administration refused to publicly release the report prepared by McKinsey. The newspaper said the refusal also cited “deliberative process” and “operational vulnerability.”

Tennessee Republican Sen. Todd Gardenhire told the Lookout this week he sought a copy of the report about a month and a half ago. Instead of the report, Gardenhire said he was sent the original contract and a summary PDF of the report. Gardenhire said he is still awaiting the full report.

“I wouldn’t say they denied it, they just have not given me a copy,” he said. “They only gave me part of what I asked.”

As Chairman of the Fiscal Review Committee, Gardenhire said his request is part of a broader mission to dig into no-bid or sole-source state contracts.

The McKinsey consulting firm has separately been at odds with state and county officials over its role as a paid advisor to opioid manufacturer Purdue Pharma as it ramped up distribution of the highly addictive drug, OxyContin, in Tennessee and across the nation.

Attorney General Herbert Slatery III in April announced Tennessee will receive a $15.2 million share of a $573 million, multi-state settlement with McKinsey, which admitted no wrong-doing as a Purdue consultant.

In early December, 12 Tennessee counties and the city of Lexington, Tenn. joined in two separate lawsuit seeking to hold McKinsey accountable over its involvement in the opioid crisis.

 

 

 

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Anita Wadhwani
Anita Wadhwani

Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee. She is a graduate of Columbia University in New York and the University of California at Berkeley School of Journalism. Wadhwani lives in Nashville with her partner and two children.

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