Tucson approved a new non-disclosure agreement framework Tuesday that would offer a template to any companies wishing to do business with the city.
That policy, which includes information about how long an NDA would last, and provisions for how to respond to public records requests, would be a step toward more transparency and public trust following the furor over how local officials shared information around the Project Blue data center.
“Confidentiality is a narrow exception, not a blank check,” Mayor Regina Romero said Tuesday. “NDAs are a tool, not a default.”
Elected officials for both the city of Tucson and Pima County said they wished they had more information about Project Blue, a massive data center initially proposed for Tucson and now moving ahead in Pima County, and could have shared more with the public
But, they said, non-disclosure agreements limited what they could say.
That dynamic echoes one seen in various developments across the region, from the aluminum plant proposed for Benson to the immigration detention center slated for Marana, where residents say they wanted more transparency over how big projects move ahead in their communities.
Pima County voted on a similar agreement in the fall. One key difference is that under the county agreement, NDAs have a shorter initial time frame: they last 180 days and can then be extended. The city agreement is three years.
Here is what is in Tucson’s proposed policy, which was unanimously approved and adopted by council members at Tuesday’s study session:
What is in an NDA, and when can they be used?
City departments may enter into non-disclosure agreements to explore economic initiatives, new technologies or possible business relationships, say city documents.
Among the information considered confidential could be: trade secrets, designs, computer programs, contracts, financial projections and customer lists, among others. Not covered: already known information, independently developed information by the city or information obtained from a third party.
To change the standard agreement template voted on Tuesday, a company will have to request a review by the city attorney’s office and the city manager’s office. “The City does not commit to use of outside NDA templates or to modifications of the current standard NDA template,” the policy states.
How long will an NDA last?
The template says an agreement shall last for three years unless ended by either party with 30 days of written notice.
If a public hearing is scheduled on a subject related to the non-disclosure agreement, the obligation to confidentiality will be dropped by both parties at least 90 days before the scheduled hearing date.
Who knows about the NDA?
All NDAs will be reviewed by the city attorney’s office, and executed by the city manager.
Once the agreement is approved, the city manager’s office will provide a copy of the enacted agreement to the city clerk, who will provide a quarterly memo to the mayor and council on the status of active and new NDAs.
Mayor and Council will be provided notice of new NDAs within 90 days of when they start.
Council member Nikki Lee, who initially spurred the conversation around revising the city’s non-disclosure agreement policy, encouraged staff not to wait until the quarterly memo to share any big NDAs that would significantly impact land use or policy. “We definitely want to be looped in as soon as possible,” Lee said, noting she was excited about how the proposal balanced transparency and retaining support for new economic initiatives.
Can it be accessed through a public records request?
The Arizona Public Records act requires that public records be disclosed unless they are specifically exempt. The city will be required to provide the company who has signed the agreement with written notice via email.
From there, the city would assert anything they wanted exempt from public release.
The agreement includes a section noting that courts may compel the city to disclose confidential information even if the records had been withheld as proprietary documents, in which case the city would inform the company.
If the company believes information should remain private, it would have to argue that in court, said City Attorney Roi Lusk.
See the full agreement here:
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