Pima May be Skirting Laws with Amazon NDAs

Credit: KVOA News 4 Tucson

By Roland Murphy for Arizona Builder’s Exchange

When we broke the news last week that Project Wildcat, the hush-hush 2.3MSF project in initial planning for the Century Research Park/Port of Tucson was, in fact, for an Amazon fulfillment and distribution center, we knew a lot of other reporters were going to jump on the story and turn up new and interesting things beyond what we pulled out of the preliminary development documents. (AZBEX, March 20)

We have already seen unusual things, and they promise to get stranger.

First, another outlet picked up our story and did a rewrite, which we always love to see. What we don’t like to see is when they spell AZBEX wrong, but these things happen.

Another, much more concerning, story broke Wednesday night. Matthew Schwartz with KVOA, Tucson’s NBC TV affiliate, had been looking into the story and tracked down 24 pages of official development plans. Unlike the couple thousand pages AZBEX got from a confidential source, those 24 pages don’t name Amazon, just the ownership LLC, developer and civil engineer.

For his story, Schwartz reached out to multiple parties involved with the project. Just as ours were, most of his inquiries were met with silence. According to the article, County Administrator Chuck Huckelberry emailed and said, “No one will talk about it.”

We emailed officials at Sun Corridor, the non-governmental organization that works to facilitate economic development in the area. We got no response. Schwartz, however, got an email saying, “Due to non-disclosure agreements and board policy on confidentiality, we are not able to share project information.”

That wasn’t surprising since private parties involved in development projects have NDAs in place as a matter of course.

Where Things Get Weird

When we were reaching our story, we submitted a public records request about the project to Pima County. As of 11 a.m. Thursday, we have received no response to our last submittal.

Schwartz also submitted a public records request to Pima County. His got a response that was nothing short of bewildering: “Pima County has entered into a non-disclosure agreement with the developer of these properties and are in the process of notifying the company of the public records request. The company has 10 days from the date of notification to provide a court order protecting the information per the NDA.”

Schwartz said the statement did not name the company, but if they were using the same nomenclature as the development plans, that would be Seefried Industrial Properties, Inc.

We have reached out to several attorneys and public officials for comment, explanation and clarification, but have heard nothing back as of press time.

Schwartz, however, said in his piece that KVOA spoke with attorneys who believe an NDA is likely a violation of Arizona’s Public Records laws. He quoted Jon Riches, the Goldwater Institute’s director of national litigation, who said, “A government agency or entity can’t contract away the public’s right to know by entering into a non-disclosure agreement with a private corporation. You can’t keep secret the public’s business and the company, in this case, Amazon, should very well know that. If they’re seeking to business with a government entity.”

Maybe, Maybe Not

Before I jump into the pool of speculation let me state that I am not an attorney and am making no allegations of misconduct.

The Arizona Ombudsman’s Citizens’ Aide is an independent agency of the Arizona Legislature tasked with making government more responsive to citizens. It has multiple publications on its Public Records page covering the ins and outs of records access.

The group’s 50-page guide to public records doesn’t make a reference to non-disclosure agreements or the ability of public officials to enter into them where records documents are concerned.

It can be assumed for the purposes of negotiations, such as discussions about incentive packages, lease terms, etc., a degree of confidentiality may be justified, even warranted. After all, if the deal isn’t finalized, you don’t want the terms you’re discussing showing up in print.

It’s possible, even likely, such agreements exist since this deal will be extremely complex and is in the preliminary stages. Nothing I could find in the regulatory guides, though, appears to exempt the plans and development documents, and it would be quite a stretch to suggest sites, map plans, the identities of the organizations involved, elevations/renderings, etc., would have bearing on the content or outcome of negotiations.

If those materials have been filed with the county, and – given the language of the statement the county made to Schwartz – it would appear they have, they should be available for review in a timely manner after the request is made. Otherwise, a denial and a legally valid reason under one of the roughly 300 statutory exemptions would have to be issued.

No legal notation I was able to find allowed for a private firm with an NDA to determine grounds for denial or a court gag order.

This isn’t just a matter of my journalistic nose getting out of joint over some sacred First Amendment argument. Our mission is to help our readers find opportunities. That means finding out about and reporting on projects as early in their timeline as possible, and public records are the best source for that.

As excellent as our relationships are with developers and other firms in the A/E/C world, we understand and respect their ability to do their jobs often depends on keeping projects under wraps until they are ready to announce. However, once materials are filed, they’re fair game. If we call a project manager about a project, they are always free to say, “There’s an NDA. I can’t talk about it,” just as we’re free to report from the documentation.

People in the industry have a need to know, and, if the estimates are right that this one facility will be responsible for more than 1,500 jobs in the Tucson area, the public has a right to know.

We will keep following developments closely.

NOTE: Paid subscribers receive additional project details in our twice-weekly PDF publication, including project stakeholder information and valuable project bidding leads. Find out more about AZBEX subscriptions or contact Rebekah Morris at rmorris@azbex.com or (480) 709-4190.

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