Tax Analysts v. Indiana Economic Development Corporation

• Court: Indiana Court of Appeals
• Decided: December 31, 2020
• Docket: 20A-PL-1141
• Status: Published

Opinion

FILED Dec 31 2020, 8:49 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE David T. Vlink Phillip J. Fowler William R. Groth Amanda Jane Gallagher Macey Swanson LLP Indiana Economic Development Indianapolis, Indiana Corporation Indianapolis, Indiana Cornish F. Hitchcock Hitchcock Law Firm PLLC Bryan H. Babb Washington, District of Columbia Bradley M. Dick Bose McKinney & Evans LLP ATTORNEYS FOR AMICUS CURIAE Indianapolis, Indiana Daniel P. Byron Margaret M. Christensen S. Katie Dickey Dentons Bingham Greenebaum LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tax Analysts, et al., December 31, 2020 Appellants-Plaintiffs, Court of Appeals Case No. 20A-PL-1141 v. Appeal from the Marion Superior Court Indiana Economic Development The Honorable John M.T. Chavis, II, Corporation, Judge Appellee-Defendant. Trial Court Cause No. 49D05-1905-PL-21582

Bailey, Judge.

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 1 of 20 Case Summary [1] Tax Analysts is a non-profit publisher of periodicals relating to taxation, and

Lauren Loricchio is a reporter for Tax Analysts. Tax Analysts and Lauren

Loricchio (collectively, “TA”) submitted to the Indiana Economic

Development Corporation (“the IEDC”) an Access to Public Records Act (“the

APRA”) request for records of the City of Indianapolis’s response to Amazon’s

Request for Proposals (“RFP”) related to the location of Amazon’s future

second headquarters. The IEDC denied that request on the grounds that the

records were statutorily exempt from disclosure because they were created

during negotiations with Amazon. TA sued the IEDC, asserting that the

requested records must be disclosed as the “terms of the final offer of public

financial resources” to Amazon, per Indiana Code Section 5-14-3-4(b)(5)(B).

The trial court agreed with the IEDC and granted it summary judgment. The

only issue on appeal is whether the trial court erred when it ruled that the

records sought were exempt from disclosure under the APRA, Indiana Code

Section 5-14-3-4(b)(5), because they were created during negotiations and did

not include terms of a final offer of public financial resources.

[2] We affirm.

Facts and Procedural History [3] In September of 2017, Amazon announced, in an RFP, plans to build a new

headquarters known as HQ2. The RFP required that confidential responses be

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 2 of 20 submitted to Amazon by October 19, 2017, and noted Amazon would make a

final site selection and announcement in 2018. The RFP stated that Amazon

would be hiring as many as 50,000 new full-time employees with an average

annual total compensation exceeding one hundred thousand dollars over the

next ten to fifteen years, following the commencement of operations. The RFP

stated that the actual average wage rate may vary from the projected wage rate

depending upon prevailing rates at the final location, and it noted that “[a]ll job

numbers, categories, and salaries contained herein are estimates/projections

and are subject to change.” Appellant’s App. v. II at 153.

[4] One of Amazon’s key preferences and decision drivers required responders to

“[i]dentify incentive programs available for the Project at the state/province

and local levels [and o]utline the type of incentive (i.e. land, site preparation,

tax credits/exemptions, relocation grants, workforce grants, utility

incentives/grants, permitting, and fee reductions) and the amount.” Id. at 156.

The RFP also stated:

2. Please provide a summary of total incentives offered for the Project by the state/province and local community. In this summary, please provide a brief description of the incentive item, the timing of incentive payment/realization, and a calculation of the incentive amount.… We acknowledge a Project of this magnitude may require special incentive legislation in order for the state/province to achieve a competitive incentive proposal. As such, please indicate if any incentives or programs will require legislation or other approval methods. Ideally, your submittal includes a total value of incentives, including the specified benefit time period.

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 3 of 20 3. If any of the programs or incentives described in the summary of total incentives are uncertain or not guaranteed, please explain the factors that contribute to such uncertainty and estimate the approximate level of certainty. …

4. Please provide a timetable for incentive approvals at the state/province and local levels, including any legislative approvals that may be required.

Id. at 157.

[5] Regarding confidentiality, the RFP stated: “While the existence of the Project

is not confidential, certain aspects of the Project and details regarding the

company are confidential, proprietary, and constitute trade secrets. Amazon

will deliver a Confidentiality and Non-Disclosure Agreement for execution at

the appropriate time.” Id. at 158. The RFP concluded as follows: “This RFP

is only an invitation for proposals, the substance of which may be memorialized

in a binding definitive agreement or agreements if any proposal is selected.

Amazon may select one or more proposals and negotiate with the parties

submitting such proposals before making an award decision, or it may select no

proposals and enter into no agreement.” Id.

[6] Amazon received more than 200 proposals in response to the RFP, including

one from the City of Indianapolis (“the City”). The IEDC and the City

contributed portions of the response (collectively, “the First Response”), and

the IEDC has the portion of the First Response to which it contributed. The

Indy Chamber of Commerce coordinated the submission of the full First

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 4 of 20 Response to Amazon. The First Response indicated1 dollar amounts to which

the City and the State of Indiana would commit to bring Amazon’s HQ2 to the

region but provided only general overviews and estimates of financial

incentives. The First Response briefly described the estimated total amount of

Economic Development for a Growing Economy (“EDGE”) tax credits to

which the State would commit and informed Amazon that the tax credits are

certified on an annual basis and can last for a period up to ten years for each

phase of the project. The First Response provided that the State would commit

to providing a Skills Enhancement Fund for talent development programs

whereby Amazon would have up to five years to use the training funds. The

First Response also provided that the State would commit to providing an

Industrial Development Grant to use for infrastructure improvements to

support the project. The First Response detailed legislative initiatives that could

be pursued for the project “if Amazon committed to a minimum capital

investment and jobs number.” App. v. II at 219. COO Cotterill stated by

affidavit that, “[b]efore IEDC could have made an offer of economic incentives,

it would have needed to know the scope of Amazon’s commitment to Indiana,

including jobs numbers, salaries, and capital investment.” Id. at 220.

1 TA has not objected to, offered evidence contradicting, or otherwise disagreed with the statements made in IEDC Chief Operating Officer Chris Cotterill’s (“Cotterill”) affidavit designated by IEDC in its cross motion for summary judgment. That affidavit summarized portions of the First Response to Amazon’s RFP, App. v. II at 217-22, and the trial court found the statements made in that affidavit were undisputed facts, id. at 15-18.

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 5 of 20 [7] In January 2018, Amazon announced Indianapolis was one of twenty finalist

cities for its HQ2, and in March 2018 Amazon representatives visited

Indianapolis to gather more information. Amazon also sent Indianapolis a

Request for Information (“RFI”) that included a detailed, confidential

questionnaire in which Amazon sought further information about the city. The

RFI stated that Indianapolis was a “candidate community” to host Amazon’s

HQ2. (In camera documents, RFI, p. 2).

[8] IEDC’s portion of the response to the questionnaire (“the IEDC Response”)

addressed only the “Real Estate” section of the Amazon questionnaire. IEDC

provided two proposed sites for Amazon’s HQ2 and provided some

information about each of those sites. Some of the information IEDC provided

was estimated costs of various fees and permits, brief discussions of planned

future projects, and anticipated developments—including conditional costs and

timelines—should Indianapolis be selected by Amazon. The IEDC Response

also referenced an opportunity to discuss proposed future agreements that

would be required regarding utilities options, including potential improvements

to existing utilities. And it contained “propos[als] to offer” additional

transportation. (In camera documents, the IEDC Response, Transportation

sections).

[9] The City and the IEDC did not hear from Amazon again after Amazon’s visit

to Indianapolis. On November 13, 2018, Amazon announced its decision to

split the HQ2 project between two locations: Queens, New York and Arlington,

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 6 of 20 Virginia. Amazon also selected Nashville, Tennessee as a new logistics and

transportation hub.

[10] On January 16, 2019, TA submitted to the IEDC a written public records

request in which it sought the following information: (1) access to and copies of

Indianapolis’s proposal for Amazon’s HQ2 project; (2) all records related to the

cost of the proposal, including receipts and memos; and (3) emails between

Holly Sullivan of Amazon and representatives of the IEDC between the dates

of October 19, 2017 and November 13, 2018. On January 23, the IEDC sent to

TA a written response in which it denied the request for the records on the

grounds that they were exempt from disclosure as negotiation documents,

pursuant to state law.

[11] On February 6, 2019, TA filed a complaint with the Indiana Public Access

Counselor (“PAC”), and the IEDC filed a response. In April 2019, the PAC

issued an Opinion in which it upheld the IEDC’S decision to withhold the

records on the grounds that they were created during negotiations with

Amazon. With respect to the proposal and the “final offer” statutory language,

the PAC stated:

Therefore in regard to finality, it is unclear whether the General Assembly intended the bid/proposal/offer in sub-section (b)(5) to be an offer in an imminent deal—something closer to a best and final offer, inferring an element of relative permanence—or if “final offer” was intended to include any and all “last” offers as in a sequential order. As there is no case law on the matter, it is equally unclear how a court would define the term.

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 7 of 20 ***

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 [O]ffice is not privy to the contents of the proposal and there is no authority defining finality; and thus, [this Office] declines to conclude, without more, that a violation [of APRA] occurred.

Appellant’s App. v. II at 125-27.

[12] On May 29, 2019, TA filed with the Marion County Superior Court a

complaint in which it alleged that the IEDC violated the APRA by declining to

produce the requested records. The parties filed cross-motions for summary

judgment. The IEDC’s motion included Cotterill’s affidavit, which purported

to summarize the IEDC’s portion of the initial response to Amazon’s RFP but

did not summarize the IEDC’s response to Amazon’s questionnaire.

[13] On February 18, 2020, the trial court heard arguments on the cross-motions. In

an order dated April 24, 2020, the trial court denied TA’s motion for summary

judgment and granted the IEDC’s cross-motion for summary judgment on the

grounds that the requested documents were negotiation documents and not a

disclosable final offer under the APRA. The court also ordered the IEDC to Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 8 of 20 tender to it the detailed, confidential questionnaire from Amazon and the

IEDC’s response so those documents could be reviewed in camera. Following

in camera review, the trial court issued an Entry of Judgment on June 8, 2020,

in which it noted that it had reviewed the relevant documents in camera, and

they were “protected documents created while negotiations were in progress.”

Id. at 11. The trial court entered judgment for the IEDC. This appeal ensued.

[14] On appeal, TA requested that this Court review in camera the same documents

that the trial court reviewed in camera, i.e., the RFI and the questionnaire from

Amazon and the IEDC’s response. We granted that motion and have reviewed

the documents in camera.

Discussion and Decision [15] TA appeals from a decision granting summary judgment to the IEDC on TA’s

claim that the IEDC’s denial of the requested records violated the APRA. A

trial court reviews such a denial de novo, “with the burden of proof on the

public agency to sustain its denial” of the APRA request. Ind. Code § 5-14-3-

9(f). Summary judgment is appropriate where the designated evidence “shows

that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We review

the trial court’s decision on summary judgment de novo, and we may affirm it

on any basis supported by the designated evidence. See e.g., Cruz v. New Centaur,

LLC, 150 N.E.3d 1051, 1055 (Ind. Ct. App. 2020). We also apply a de novo

standard of review to the trial court’s interpretation of the APRA. See, e.g.,

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 9 of 20 Hammond Dev. Corp. v. McDermott, 783 N.E.2d 727, 729 (Ind. Ct. App. 2003),

trans. denied.

[16] TA requested from the IEDC records of Indianapolis’s response to Amazon’s

RFP regarding the future location of its HQ2 project.2 The APRA provides that

“[a]ny person may inspect and copy the public records of any public agency.”

I.C. § 5-14-3-3. The policy behind the APRA is that “all persons are entitled to

full and complete information regarding the affairs of government and the

official acts of those who represent them as public officials and employees.”

I.C. § 5-14-3-1. The APRA is to be construed liberally to further that policy,

and the “burden of proof for the nondisclosure of a public record [is] on the

public agency that would deny access to the record and not on the person

seeking to inspect and copy the record.” Id.

[17] However, the APRA specifically exempts certain public records from the

disclosure requirements. At issue here is the discretionary3 exemption for the

disclosure of public records relating to negotiations. Indiana Code Section 5-

14-3-4(b)(5) states, in relevant part:

(b) Except as otherwise provided by subsection (a), the following public records shall be excepted from section 3 of this chapter at the discretion of a public agency:

2 The trial court noted—and the parties do not dispute—that the records requested by TA included both the First Response to the RFP and the IEDC’s subsequent response to the confidential questionnaire. 3 Certain records—not at issue here—are mandatorily exempt from disclosure. I.C. § 5-14-3-4(a).

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 10 of 20 ***

(5) The following:

(A) Records relating to negotiations between:

(i) the Indiana economic development corporation;…

with industrial, research, or commercial prospects, if the records are created while negotiations are in progress….

(B) Notwithstanding clause (A), the terms of the final offer of public financial resources communicated by the Indiana economic development corporation,… to an industrial, a research, or a commercial prospect shall be available for inspection and copying under section 3 of this chapter after negotiations with that prospect have terminated.

(C) When disclosing a final offer under clause (B), the Indiana economic development corporation shall certify that the information being disclosed accurately and completely represents the terms of the final offer.

(D) Notwithstanding clause (A), an incentive agreement with an incentive recipient shall be available for inspection and copying under section 3 of this chapter after the date the incentive recipient and the Indiana economic development corporation execute the incentive agreement regardless of

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 11 of 20 whether negotiations are in progress with the recipient after that date regarding a modification or extension of the incentive agreement.

[18] The IEDC asserts that it has discretion not to disclose the records TA requested

because, pursuant to (b)(5)(A), those records were “created while negotiations

were in progress” between it and Amazon, a “commercial prospect.” However,

TA maintains that the records must be disclosed under (b)(5)(B) because they

contain the “terms of the final offer of public financial resources”

communicated by the IEDC to Amazon. There is no dispute that the records

were created during negotiations between the IEDC and Amazon. The issue

on appeal is whether the records were a final offer and therefore subject to

disclosure under subsection (b)(5)(B) despite the fact that they were created

during negotiations.

[19] When we interpret a statute, “the first step is to determine whether the

Legislature has spoken clearly and unambiguously on the point in question.

When a statute is clear and unambiguous, we apply words and phrases in their

plain, ordinary, and usual sense.” Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind.

2015). Unfortunately, the APRA does not define the term “final offer.” And,

as the PAC4 noted, the statute is ambiguous regarding the meaning of that term

in subsection (b)(5)(B). That is, the statute does not clearly state whether “an

4 PAC decisions are not binding; rather, they are “advisory opinions to interpret the public access laws” at the request of a person or public agency. I.C. § 5-14-4-10(6). However, upon conducting our own de novo review of the statute, we agree with the PAC that the term “final” in the statute is ambiguous.

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 12 of 20 offer is ‘final’ when it is an offer in an imminent deal—something closer to a

best and final offer, inferring an element of relative permanence—or if ‘final

offer’ was intended to include any and all ‘last’ offers as in a sequential order.”

Appellant’s App. v. II at 125.

[20] When we are faced with an ambiguous statute, “our primary goal is to

determine, give effect to, and implement the intent of the Legislature with well-

established rules of statutory construction.” Anderson, 42 N.E.3d at 85.

We avoid interpretations that depend on [a] selective reading of individual words that lead to irrational and disharmonizing results. As we interpret the statute, we are mindful of both what it does say and what it does not say. To the extent there is an ambiguity, we determine and give effect to the intent of the legislature as best it can be ascertained. We do not presume that the [l]egislature intended language used in a statute to be applied illogically or to bring about an unjust or absurd result.

ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016)

(quotations and citations omitted). In addition, the legislative intent behind a

statute “may be identified and effectuated by examining the act as a whole, the

law existing before its passage, changes made to the law since enactment and

the reasons for those changes.” Miller Brewing Co. v. Bartholomew Cnty. Beverage

Co., Inc., 674 N.E.2d 193, 205 (Ind. Ct. App. 1996), trans. denied; see also Von

Tobel Corp. v. Chi-Tec Const. & Remodeling, Inc., 994 N.E.2d 1215, 1218 (Ind. Ct.

App. 2013) (citations omitted) (noting, where meaning is uncertain, “the courts

will look also to the situation and circumstances under which [the statute] was

enacted”).

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 13 of 20 [21] In interpreting the APRA specifically, we apply a presumption in favor of

disclosure, given the Act’s public purpose of promoting government

transparency. Evansville Courier & Press v. Vanderburgh Cnty. Health Dep’t, 17

N.E.2d 922, 929 (Ind. 2014). However, the APRA’s disclosure requirements

“do[] not mean that expressed exceptions specified by the legislature are to be

contravened.” Robinson v. Ind. Univ., 659 N.E.2d 153, 156 (Ind. Ct. App. 1995)

(quotation and citation omitted), trans. denied.

[22] We begin by examining the language of the statute itself, as that is the best

evidence of the legislature’s intent, and all words must be given their plain and

ordinary meaning unless otherwise indicated by the statute. E.g., Hendrix v.

State, 759 N.E.2d 1045, 1047 (Ind. 2001). Although the statute does not define

the term “final offer,” the dictionary definition of “final” is: (1) not to be

altered or undone; (2) coming at the end: being the last in a series, process, or

progress; (3) of or relating to the ultimate purpose or result of a process. Final,

Merriam-Webster.com, https://www.merriam-webster.com/dictionary/final.

The relevant dictionary definition of “offer” as a noun is: (1) a presenting of

something for acceptance; (2) an undertaking to do an act or give something on

condition that the party to whom the proposal is made do some specified act or

make a return promise.” Offer, Merriam-Webster.com, https://www.merriam-

webster.com/dictionary/offer.

[23] We can narrow the definition of “final offer” further by examining the history

of Indiana Code Section 5-14-3-4(b)(5). That history indicates a legislative

concern for keeping private the negotiations between public agencies and

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 14 of 20 industrial, research, and commercial prospects, despite the overarching purpose

of the APRA. Until 1991, subsection (b)(5) did not contain clauses (A) through

(D). Rather, it defined exempt negotiation records as: “(5) Records relating to

negotiations between the department of commerce, … with industrial, research,

or commercial prospects while negotiations are in progress.” I.C. § 5-14-3-4(b)(5)

(2019) (emphasis added). Sometime in 1990 or early 1991, State Representative

Patrick Kiely asked the Indiana Attorney General (“AG”) to issue an opinion

regarding “whether a financial incentive package offered by the Indiana

Department of Commerce [now IEDC] becomes available for public inspection

after the termination of negotiations between the Department and a commercial

prospect.” 1991 Op.Atty.Gen. No. 91-4, 1991 WL 495534, *1 (March 6, 1991).

The AG concluded: “Indiana Code Section 5-14-3-4(b)(5) makes it clear that

the exception from disclosure authorized by that provision only exists ‘while

negotiations are in progress.’ When negotiations with a prospect have been

completed, the records relating to the negotiations become available for public

inspection unless another exception applies.” Id. at *2.

[24] In the next legislative session following the issuance of the AG’s opinion, the

legislature amended subsection (b)(5) by adding clauses (A) through (C).

Clause (A) was the same as the former statute except that it added that records

were exempt not just “while negotiations are in progress” but “if the records are

created while negotiations are in progress.” 1991 Ind. Legis. Serv. P.L. 50-1991

(H.E.A. 1982) (Approved May 12, 1991). That change indicates that the

legislature no longer wished for all records of negotiations between the IEDC

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 15 of 20 and commercial prospects to be available to the public after negotiations had

concluded, as the former statute provided. Id. Rather, under the new language

of clause (A), records could be excluded from disclosure, at the agency’s

discretion, when those records were created during negotiations. Id. However,

the 1991 amendment adding clause (B) also evinces the legislature’s clear intent

that those same records protected under subparagraph (A) must be disclosed

when they are comprised of “the terms of a final offer of public financial

resources.”5

[25] Thus, the legislature purposely changed the statute from requiring disclosure of

all records of negotiations after negotiations concluded to only requiring

disclosure under the limited circumstances where negotiations resulted in the

terms of final offers (or, later, incentive agreements). We can logically infer

from those statutory changes that the legislature envisioned that there would be

some situations in which negotiations did not result in a disclosable “final offer”

or incentive agreement, and that records of those negotiations could be

withheld by the public agency under clause (A).6 Therefore, “final offer” must

mean something more than simply the last offer in a sequence of negotiations,

5 The legislature subsequently added clause (D), which requires disclosure of an “incentive agreement.” I.C. § 5-14-3-4(b)(5)(D). No one contends that the records at issue in this case are an incentive agreement that must be disclosed under clause (D). For that reason, we note that the IEDC’s discussion of terms statutorily required for an incentive agreement are irrelevant. See, e.g., Appellee’s Br. at 33-34 (citing I.C. 6-3.1-13-19, which requires the IEDC to enter into an “agreement” with specified terms when an applicant “is awarded” tax credits). 6 We further note that, if the legislature meant simply the “last” offer in the negotiations, it could have easily said “last” instead of “final” in subparagraph (b)(5)(B). See ESPN, Inc., 62 N.E.3d at 1195 (noting we must be mindful of both what a statute does say and what it does not say).

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 16 of 20 or “coming at the end: being the last in a series, process, or progress.”7 Final,

Merriam-Webster.com, https://www.merriam-webster.com/dictionary/final.

For the same reasons, “final offer” must also mean something more than “of or

relating to the ultimate purpose or result of a process” as that frequently, if not

always, would include all negotiations. Id.

[26] We are left with the “not to be altered or undone” dictionary definition of

“final.” Final, Merriam-Webster.com, https://www.merriam-

webster.com/dictionary/final. That definition is consistent with the language

of Indiana Code Section 5-14-3-4(b)(5) and its history, as noted above.8 It is

also consistent with the public policies behind clauses (A) and (B) and the

purpose of the APRA. That is, clause (A) recognizes that economic

development negotiation records must be protected to enable Indiana to

compete for jobs and investments without tipping off Indiana’s competition or

future prospects and thereby giving either an advantage. See also I.C. § 5-28-1-1

(noting that the purpose of the IEDC is to maximize Indiana’s economic

development efforts and providing that IEDC has broad powers to do so). On

the other hand, clause (B) recognizes that citizens have a right to know how the

7 The trial court concluded that records constitute a “final offer” only when they are certified under clause (C). We disagree. Clause (B) presupposes that there may be such a thing as a “final offer of public financial resources” and, when there is, it must be disclosed. Clause (C) only relates to the requirements the public agency must meet when it discloses an already-existing final offer; that is, “when disclosing a final offer,” it must certify its accuracy and completeness. I.C. § 5-14-3-4(b)(5)(C) (emphasis added). Under the plain language of the statute, the certification comes after the existence of the final offer; it does not create the final offer. 8 Thus, we need not consider how “final offer” is used in other statutes or in contract law, as the IEDC suggests.

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 17 of 20 government ultimately has committed to using their taxpayer dollars. See also

I.C. § 5-14-3-1 (stating the public policy behind APRA). Thus, records relating

to negotiations are not disclosable under Indiana Code Section 5-14-3-4(b)(5)(B)

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.

[27] To determine if an offer is intended to be altered or undone in the future, we

consider the language used in the offer. Logically, language that is conditional,

tentative, indefinite, provisionary, or conjectural would be evidence that the

offer is to be altered or changed at some point and, therefore, not final.

Amazon’s RFP, RFI, and questionnaire and the IEDC’s Responses contain

such language. The RFP specifically stated that it was merely an “invitation for

proposals, the substance of which may be memorialized in a binding definitive

agreement or agreements if any proposal is selected.” Appellant’s App. v. II at

158. It also stated that the jobs and salaries it contained were

“estimates/projections” that were “subject to change.” Id. at 153. The First

Response to that RFP provided “only general overviews of incentives” it could

provide to Amazon if Indianapolis were chosen for its HQ2. Id. at 16.

[28] Amazon’s subsequent RFI to Indianapolis stated that it was “invit[ing]”

Indianapolis, as a “candidate community to host HQ2,” to respond to the

attached questionnaire. (In Camera documents, RFI, p. 2). The RFI did not

specify job numbers, salaries, or capital investments in any more detail than the

RFP had—a condition Cotterill said must be met before Indianapolis could

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 18 of 20 offer a final proposal. And the IEDC’s response to the questionnaire proposed

two different project sites, not one final site. 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.

[29] We hold that the IEDC’s responses to both Amazon’s initial RFP and its

subsequent RFI 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.” I.C. § 5-14-3-4(b)(5)(A), (B). As such, the IEDC had

discretion to deny TA’s request for copies of those records. Id.

Conclusion [30] Because the IEDC Response to Amazon consisted of records of negotiations

and not a final offer of public financial resources, the APRA did not require the

IEDC to disclose it to the public. The trial court’s orders denying summary

judgment to TA and granting IEDC’s cross-motion for summary judgment

were not erroneous.

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 19 of 20 [31] Affirmed.

Robb, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Opinion 20A-PL-1141 | December 31, 2020 Page 20 of 20