After being released under the threat of litigation, a non-disclosure agreement (NDA) between developers of a forthcoming data center in Bessemer was recently released to lawyers on behalf of the Alabama Rivers Alliance, showing that the City agreed to destroy certain records upon the developer's request.
What was initially pitched as a 700-acre development has quickly grown to more than 1,600 acres in the $14.5 billion project. The development, called Project Marvel, is being conducted by Logistics Land Investment (LLI), a real estate firm owned by a Georgia-based TPA-Group. The center is being constructed on a rural land plot just southwest of Birmingham. Though the developers claim that the majority of the land will remain unused, it is slated to house 18 buildings.
A Virginia-based company named QTS Data Centers recently bought the property for nearly $432 million from LLI.
The center has been a source of controversy in the area, with residents and state activists opposing the development and the perceived lack of transparency from local leadership.
Charles Miller, the policy director of the Alabama Rivers Alliance, was quick to cry foul at the City's signing of NDAs and sought to obtain copies.
"I'll say this, when I first learned that elected officials could sign non-disclosure agreements with private developers like in their official capacity, I was really surprised," Miller told 1819 News. "And I think most people are too when they find that out."
After the Southern Environmental Law Center threatened to sue Bessemer on behalf of the Rivers Alliance, the City capitulated and released copies.
Miller says he was surprised by several sections of the NDA, most shocking of which was a section where the City agreed to destroy so-called confidential information on request from the other party.
Information that was deemed confidential included: "The disclosing party's "affiliates', customers', suppliers', and other third parties' past, present, and future business affairs including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, proformas, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales, and other commercial strategies; unpatented inventions, ideas, methods, and discoveries, trade secrets, knowhow, unpublished patent applications, and other confidential intellectual property."
"[O]ther information that would reasonably be considered non-public, confidential, or proprietary given the nature of the information and the Parties' businesses; notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials (the "Notes") prepared by or for the Recipient or its Representatives that contain, are based on, or otherwise reflect or are derived, in whole or in part, from any of the foregoing," it continued.
After defining what is and is not "confidential" information, the NDA goes on to require the City to destroy all copies of said information after the end of the agreement or upon request from LLI.
"Upon the expiration or termination of this Agreement, or at the Disclosing Party's request at any time during the term of this Agreement, the Recipient and its Representatives shall promptly destroy all such copies and, upon request from the Disclosing Party, confirm in writing to the Disclosing Party that such Confidential Information has been destroyed," it states. "In addition, the Recipient shall also destroy all copies of any Notes created by the Recipient or its Representatives."
Miller stated that section of the NDA left him scratching his head in light of Alabama law, which states, "No county, municipal, or other local government official shall cause any county, municipal, or other local government record to be destroyed or otherwise disposed of without first obtaining the approval of the Local Government Records Commission."
"The issue with that is, it's not necessarily going to be a problem if you've got an NDA that's between two private individuals or private parties," Miller said. "But the problem with destroying those records, if you're a municipality, is that we have a state law that requires you to keep all of those records. So, it seemed to me that the NDA was in conflict with that law, and that was kind of the first thing that jumped out at me.
He continued, "They also amended it, I think, in February of this year to explicitly prevent the city from disclosing who the developer behind the project was. And so that to me was very interesting, just in terms of timing."
Miller said his group has not received any additional information from the City as to what, if any, documents had been destroyed by the City at the conclusion of the NDA.
"We don't know whether any records have been destroyed," he explained. "That's something that we might be filing some future open records requests to kind of get to the bottom of."
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