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Bill draws attention of open records watchdogs

By Kendal Groner

A bill in the Tennessee State Legislature related to the accessibility of public records from food incubation service providers, such as the Mountain Harvest Kitchen located in the Town of Unicoi, attracted the attention of the Tennessee Coalition for Open Government.

As it was originally written the bill will “make confidential the records of any food-based business incubation service provider created by a municipality.”

Deb Fisher, executive director of the Tennessee Coalition for Open Government, became aware of the bill after speaking with State Senator Rusty Crowe.

“As a non-profit organization that seeks to preserve transparency, we track bills that make changes to the Public Records Act,” Fisher explained. “That bill would add an exemption to the Public Records Act.”

The bill is currently sponsored by State Representative John Holsclaw and State Senator Rusty Crowe, and was first filed for introduction at the end of January.

Fisher said she believed the bill was initiated by Town of Unicoi officials due to concern that in the business incubation setting of the Mountain Harvest Kitchen, the proprietary records of the companies would become public.

“What I told Senator Crowe is that there are exemptions in the Public Records Acts that are written in a way to protect proprietary information and trade secrets,” said Fisher.

The topic of Mountain Harvest Kitchen’s financial statements and records of who is utilizing the service have come up in multiple meetings of the Town of Unicoi Board of Mayor and Aldermen.

Town of Unicoi Mayor Johnny Lynch confirmed that the push for the bill did originate from the mayor’s office, but stated that the bill’s only intended purpose was to protect the privacy of the clients utilizing the kitchen.

“We called to basically allow for some sort of privacy for users of the kitchen to protect their recipes or ingredients and that sort of thing,” Lynch said. “We need to do the best we can to give them that kind of protection. Nobody is trying to keep anything from the public.”

Town of Unicoi attorney Lois Shults-Davis said she spoke with Senator Crowe in an attempt to align regulations concerning food based incubators with other entities in the state and protect sensitive information of the Mountain Harvest Kitchen clients, such as their financial information and business plans.

“It gets into some really confidential information that could be taken advantage of by competitors and become a source of real mischief,” Shults-Davis said. “Mountain Harvest Kitchen was conceived as something to benefit the patrons.”

She noted that under the Small Business Administration, which is offered as a resource for people that utilize Mountain Harvest Kitchen, the proprietary and trade secret information of the client is protected.

According to Shults-Davis, as it was explained to her, the information clients give to the Food and Drug Administration (FDA) is also protected.

“We asked for it be very broad based initially, but I think the current wording of the bill does not leave out names, but does cover proprietary information,” she said.

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Town of Unicoi Alderman Kathy Bullen says she has still not received any kind of financial statement on the overall use of the facility or a report on the users of the Mountain Harvest Kitchen, even after making multiple requests and filling out an open records request.

“I have asked since it opened, probably something at every meeting we have asked for a financial statement on the kitchen since it was up and running,” Bullen stated. “Preventing the aldermen from having access to information that belongs on a profit-loss statement regarding the kitchen prevents an elected official from fulfilling their judiciary and policy making responsibilities.”

Bullen also expressed concerns that this bill had not been discussed in any of the Town of Unicoi Board of Mayor and Aldermen meetings.

Mayor Lynch said that he expects the bill to be discussed in the meetings at some point after further action is made at the state level. He also said that he did not feel the financial statements that Bullen has repeatedly asked for have anything to do with the classes and activities being held at the kitchen.

“If I were a user of the kitchen, other than my basic information like my name and address, I would be skeptical about any other information being released,” Lynch said. “I would not personally want to have that information given out to the public, and that’s just my feeling. As long as we can stay within the law on this thing, I feel like we need to make some arrangements so our clients can protect certain areas of their business.”

While Fisher agreed that it was not unreasonable to protect the proprietary and trade secret information of companies or individuals using the Mountain Harvest Kitchen, her main concern was with the blanket wording of the bill which would withhold all information related to the users of the kitchen.

“The way the original bill was filed, it actually closes the names of the companies that are receiving services and anything about them,” she said. “Our baseline on that is that a company receiving services or as a lease to use a facility, that information should not be confidential.”

With taxpayer money being directed to Mountain Harvest Kitchen, Bullen questioned why such information would be sealed off from not only the public, but the town’s elected officials.

“The town is running a financial enterprise, and if the bill went through the way it is originally stated, it would block us from having that information,” Bullen said. “It must be amended. We need names, contact information, and dollar amounts that people are paying to use the kitchen.”

Both Bullen and Fisher contacted Senator Crowe and discussed the need to refine the bill. According to Bullen, Senator Crowe assured her that the amended bill would only withhold proprietary information.

“Our (Tennessee Coalition for Open Government) hope is to help the lawmaker identify some language that would protect what needs to be protected, but not make everything confidential,” Fisher said.

The bill has recently been amended with a subdivision that will specifically protect the client’s commercial or financial information, manufacturing processes and materials used, and marketing information designed to identify potential customers and business relationships.

The new subdivision to the bill currently reads “proprietary information, trade secrets, and marketing information submitted to any food-based incubation service provider created by a municipality shall be treated as confidential and shall not be open for inspection by members of the public.”

When the Town of Unicoi originally contacted Senator Crowe, Shults-Davis said they had asked for more narrow wording of the bill that would specifically include Mountain Harvest Kitchen and the Town of Unicoi.

“But as it was looked at in Nashville, there is hope that this type of effort will spread across the state,” she said. “If there are other food based business incubators that develop like this, the bill can apply to any and all of those. It is a much bigger issue than just the Town of Unicoi and our kitchen.”

Even after the amendment, Bullen still says she has unanswered questions. She referenced a WCYB article that mentioned ‘Bite’ food truck as a success story from Mountain Harvest Kitchen.

“But the article has a date for the start of the business, before the kitchen even opened,” she said.

While Mayor Lynch has encouraged contact with Lee Manning, Mountain Harvest Kitchen director, according to Bullen, the mayor instructed Manning to not speak with anyone regarding details on the kitchen.

Since the bill’s introduction in January, it has since passed on first and second considerations and is awaiting further action in the State Senate and Local Government Committee on March 20.

Bullen said she plans to discuss the bill pertaining to the kitchen in the next Town of Unicoi Board of Mayor and Aldermen meeting scheduled for  Monday, March 19, at 5:30 p.m.