A not-for-profit tax policy organization will make its case in court next month that the public is entitled to know the public financial incentives that were offered to Amazon in Indianapolis’ unsuccessful bid to lure the online retail giant’s secondary multibillion-dollar headquarters.
Tax Analysts, which publishes the Tax Notes website, tracks issues regarding tax policy, administration and transparency. It sued the Indiana Economic Development Corp. in May after it was denied details of financial incentives it requested about Indianapolis’ unsuccessful offer to lure Amazon’s HQ2.
Indianapolis was among more than 200 cities that competed for the Amazon mega-project with incentives-laden proposals. The Circle City was among finalists Seattle-based Amazon selected before ultimately choosing sites near New York and Washington, D.C.
“Gary also made an offer, which it provided,” attorney Bill Groth, who represents Tax Analysts, said in an email. “Indianapolis, on the other hand, has refused to hand over any of the documents our client requested even though negotiations are concluded and the (Access to Public Records Act) requires that a ‘final offer’ of financial incentives must be disclosed on request.”
The definition of “final offer” is central to the case. Tax Analysts insists its proposal to Amazon could be nothing but that, while IEDC says its response to Amazon’s request for proposals was a “precommit” and that disclosure of the package could jeopardize trade secrets or future economic development efforts.
IEDC is represented in the litigation by Bose McKinney & Evans LLP partners Bryan Babb and Bradley Dick. In response to messages to the attorneys seeking comment, IEDC director of media relations Erin Sweitzer responded in an email, “As with all prospects considering Indiana for growth, the IEDC evaluates each project on a case-by-case basis and works to determine whether an incentive package is needed, and if so, works to outline an appropriate incentive package utilizing the various tools (tax credits, grants) at our disposal. Despite the very public nature of Amazon’s HQ2 search, the IEDC worked with the company in the same confidential manner it works with all prospects.
“And, as is the case with all economic development projects, those confidential discussions must, unless and until an incentive package is agreed to, remain confidential in order to protect trade secrets, ensure our competitive advantage for current and future efforts to encourage and attract new Indiana jobs and investments, and to uphold our ability to negotiate fiscally responsible incentive packages in the future, protecting Hoosier taxpayer dollars in the process,” Sweitzer wrote.
According to court filings in the case, Tax Analysts says Gary 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.
While Indianapolis’ offer has not been disclosed, Tax Analysts asserts in a court filing that it may be reasonable to infer the city placed more incentives on the table.
“We do not know IEDC’s ‘offering’ on behalf of Indianapolis. That is the aim of this litigation. We do know, however, that Amazon viewed the Indianapolis ‘offering’ as superior to the Gary proposal, given that Indianapolis succeeded where Gary and 217 other municipalities failed, namely, in making the shortlist of 20 finalists,” Tax Analysts asserts in a Jan. 6 court pleading.
IEDC argues in its motion for summary judgment that its response to Amazon’s request for proposals was not a “final offer of financial public resources” and therefore does not require disclosure under the Access to Public Records Act.
IEDC last January denied Tax Analysts’ request for copies of Indianapolis’ proposal for Amazon HQ2, saying records relating to negotiations between the corporation and its prospects are exempt from disclosure under the public records law.
Tax Analysts appealed to Indiana Public Access Counselor Luke Britt, who in May issued an advisory opinion that found he could not say IEDC violated the Access to Public Records Act, but largely sidestepped the question of whether the incentives offered to Amazon should be disclosed.
“This Ofﬁce universally encourages as much government transparency as possible, but acknowledges that concept is not absolute,” Britt wrote. “… Without judicial precedent or interpretation, enough contextual ambiguity in the statute exists to defer on this Ofﬁce’s drawing of a deﬁnitive conclusion or even making a recommendation in this instance.
“… Although the proposal that IEDC submitted on behalf of the City of Indianapolis arguably communicates the terms of an offer of public ﬁnancial resources, this ofﬁce is not privy to the contents of the proposal and there is no authority deﬁning ﬁnality; and thus, declines to conclude, without more, that a violation occurred.”
Both Tax Analysts and the IEDC have moved for summary judgment in the litigation. Marion Superior Civil Division 5 Judge John M.T. Chavis has set a hearing on those potentially dispositive motions for 10 a.m. Feb. 18.