What did city, state offer for Amazon HQ2? A judge is deciding whether the public should know

A Marion County judge will privately review the five-page Indianapolis Amazon "HQ2" proposal in the coming weeks to determine whether the document should be made public, the latest in an ongoing lawsuit between a tax publication and the Indiana Economic Development Corporation.

The lawsuit, brought by the Washington, D.C.-based nonprofit Tax Analysts, centers around public access to the Indianapolis proposal for Amazon's "HQ2" headquarters.

The city was one of 238 that vied for Amazon's second headquarters in 2017, a competition in which cities and states offered billions in tax breaks or other incentives to entice the tech giant. The Indiana Economic Development Corporation worked on the proposal with the Indy Chamber, an effort that garnered support from Mayor Joe Hogsett and Fishers Mayor Scott Fadness.

The IEDC has declined to release the details of the proposal — which in other states has revealed hefty taxpayer-funded incentives for the company.

Tax Analysts, which requested the proposal from the IEDC after Indianapolis lost the bid in 2018, claims in its lawsuit that the proposal is public since negotiations with Amazon have ceased.

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At issue is whether the proposal constitutes a "final offer" from the city and state.

Public records law notes that while negotiations involving the IEDC or an economic development commission are exempt from disclosure, the terms of a final offer with those agencies must be made public after negotiations have ended.

In court filings, the IEDC argues that its proposal was not a final offer — particularly because the details of Amazon's request for proposals were vague.

A 'five-page marketing flyer'

Attorney Bryan Babb, who represents the agency on the case, argued before Judge John Chavis on Tuesday that the proposal was essentially a "five-page marketing flyer" that was not even at the initial "pre-commit" level of negotiations with the agency.

The agency still needed more information to determine tax credits and grant funds the company may have qualified for, he argued, and certain items would have required legislative approval.

"We're just basically saying, 'Here's what we're willing to do, but oh by the way, we have to go back and get authority," he said. "That's a common negotiation."

But Tax Analysts believes otherwise, arguing that Amazon's request for proposals was "far from vague."

"There is a lot of interest in the use of economic incentives. They are not free," attorney Cornish Hitchcock told the judge Tuesday. "There is a public interest in finding out how agencies are doing business and whether it makes sense for them to do it the way they are doing it."

The city of Gary, which also worked on its Amazon proposal with the IEDC, shared its details after Tax Analysts also filed a public records request and complaint in 2018.

Gary and the state of Indiana offered two incentive packages that were each worth more than $2.3 billion, the nonprofit later reported. One "high certainty" option featured roughly $1.5 billion in incentives from the state and about $793 million in incentives from Gary. Another option offered about $2.8 billion in state incentives and roughly $463 million in Gary incentives.

Tax Analysts initially filed a complaint last year after the IEDC withheld the Indianapolis proposal. A public records access counselor later concluded the agency did not violate the public records act by withholding documents related to negotiations with Amazon — but also noted that the act does not provide an exact definition of "final offer."

Judge Chavis plans to review the Amazon proposal and make a decision within 60 days, or in mid-April.

Call IndyStar reporter Amelia Pak-Harvey at 317-444-6175 or email her at apakharvey@indystar.com. Follow her on Twitter @AmeliaPakHarvey.