Secrecy agreements fuel pushback of $14 billion Alabama data center

The plan to build a $14 billion data center south of Birmingham continues to fuel pushback and complaints about secrecy.

The mayor and city attorney in Bessemer confirmed to AL.com that they signed non-disclosure agreements tied to Project Marvel, the codename for the data center project.

But the city denied an open records request from AL.com to release copies of the NDAs to the public. They also declined to provide email communications between the mayor, city attorney, and the project’s developers and attorney dating back to 2024.

“The City must respectfully decline to produce non-disclosure agreements, attorney-client privileged communications, or other records that fall within the above categories,” said Wanda Taylor, the city clerk, wrote in a certified letter to AL.com. “We remain committed to complying with the Alabama Public Records Act while also protecting the City’s legal interests, confidential negotiations, and the public good.”

The data center project is still in the early stages of the zoning process with the city. But the development proposed by Logistics Land Investment LLC, owned by Atlanta-based TPA Group, would include 18 buildings on rural timber land in Bessemer, near unincorporated county limits. Residents surrounding the site, as well others nearby, have packed out public meetings, raising concerns over constraints on water and power, pollution, disturbance to wildlife and traffic.

Ron Morgan, one of the 18 landowners that surrounds the 700-acre site where the data center campus is planned, said he believes there should be a state law that bans public officials from signing NDAs like this.

“Why are public municipalities signing NDAs when you’re discussing public money and the things that are going to directly affect the public? How can you get away with signing an NDA where you can’t be open and honest about what you’re doing?” Morgan told AL.com. “That’s just wrong.”

Aaron Killings, the city attorney in Bessemer, defended the NDAs as “not unusual at all” for economic development projects.

“Consider anything. Amazon, Mercedes, any large company that’s coming in that is looking at a particular piece of property or they’re looking to close a certain type of deal, you don’t make that publicly known,” he said in an interview with AL.com. “It could compromise their position and/or the city’s. That’s common in the industry.”

Mayor Kenneth Gulley added that the non-disclosure agreement he signed is no longer relevant.

“Initially, we did sign an NDA, but that was the interim,” Gulley said. “It was specific in the early days when we were trying to get Project Marvel off the ground, but the NDA wouldn’t even apply.”

David Cuillier, director of the Freedom of Information Project at the University of Florida, said non-disclosure agreements are a “common roadblock” for keeping the public informed.

“NDAs aren’t supposed to hold any sway (an agreement can’t trump the state public records law),” Cuillier told AL.com. “But they often use trade secret exemptions or other tactics to keep the information secret.”

‘Pure intimidation’

Residents packed out Bessemer’s most recent public hearing involving data center development to find new security measures at City Hall.

Things heated up on the evening of Oct. 7 when Bessemer police officers greeted people as they entered City Hall for the meeting just a day after the city had issued a public statement backing the data center project. Cops were stationed next to a metal detector at the front door, and more officers scanned anyone who tried to enter the council chambers with handheld devices.

Twenty minutes before the meeting was scheduled to start, the room was already full. The rest of the crowd was directed to an overflow room with a livestream.

The meeting started with a prayer for peace. The city council voted in favor of allowing data center projects generally to develop on land zoned for industrial use.

Morgan called the heightened security measures at Tuesday’s meeting “pure intimidation” for residents and said it appeared that the project was already a done deal, prior to a vote.

“They don’t want to listen to anybody,” he said outside City Hall after the meeting. “They’re going to do exactly what they want to do, regardless of the results, regardless of the consequences. All they see is money.”

The city took to Facebook a day earlier to tout its “full support” for the project, calling it “one of the most important economic opportunities to come before our city in years.”

Bessemer also sparred on Facebook with critics of the project, stating that people opposing the project live in unincorporated Jefferson County, but that the city’s residents support the development.

“It is okay to be in opposition of a proposed development, just try to do it without accusing an official of unethical practices,” the city said in response to one comment. “The NDA was only in reference to the financial impact the proposed development would bring to the city, county, and state. Now that amount has been made public knowledge.”

The city’s post did not specify that amount.

It’s unclear if any members of the city council or other city staff have signed non-disclosure agreements tied to the development. Killings, the city attorney, said he didn’t know. Members of the seven-person council either did not respond to questions or declined to answer.

But Killings said that some members of the city council have traveled out of state to view currently operating data centers, and that the council “takes it very seriously” and is responding to “public outcry.”

In September, the NAACP sent a letter to Bessemer’s planning and zoning commission expressing concern over the project and lack of public notice about meetings on the matter, asking for copies of written communications and any agreements between the city and the developer.

“We call for full transparency of the impacts of the data center on this community,” the Sept. 16 letter reads. “We have had a hard time finding any agenda information regarding meetings and any advance notice that is easily discernable to the public for input.”

Access to records

AL.com on July 16 sent a records request to Bessemer seeking the NDAs and emails.

More than two months later, Bessemer City Clerk Wanda Taylor rejected it in a certified letter dated Sept. 26, adding that if there were any records that weren’t exempt, the city would provide them.

“Non-disclosure agreements (NDAs) and related documents executed with private parties in connection with economic development projects may contain confidential trade secrets or sensitive business negotiations,” Taylor said in the letter. “Alabama law does not require disclosure of records where release would impair the City’s ability to attract industry or economic development.”

Taylor added that the Alabama Supreme Court allows for “exceptions to disclosure where release would be inconsistent with the public interest.” She also noted that the 18-month period of requested emails qualifies as “unduly burdensome.”

Alabama rates as the least transparent state in the country when it comes to public records compliance, Cuillier said.

Generally, Alabama’s secrecy means that someone requesting information will get it only 16% of the time, have to wait 182 days, and will be charged a $12,000 fee, on average, per MuckRock data.

“The issue is even more important now as huge data centers are proposed in communities, which could consume a ton of water and electricity,” Cuillier said.

Public meetings

Bessemer’s public meetings on the project thus far have gone before the planning and zoning commission, as well as the city council, multiple times.

None have been recorded or livestreamed to be accessible online.

The rooms are also limited to the public, oftentimes filling up to capacity before the meeting starts. Fire department personnel typically cap the room at 60 people, as other attendees end up crowding the hallway and stairwell outside the meeting room.

Other groups have called on the city for more transparency in the public hearing process.

A group of three residents who live near the property have alleged in a lawsuit filed in April that the city broke the law ahead of the planning and zoning commission’s initial meeting in March. The lawsuit claims the city didn’t notify all of the residents who own property within 500 feet of the site and also posted different dates for the commission meeting.

The city defended itself, claiming it had provided adequate notice. But it sent the vote back to the planning and zoning commission to restart the process over the summer.

Now, that lawsuit has been continued to December, court records show.

What’s next?

The city council’s next public hearing on the rezoning request for Project Marvel is scheduled for Nov. 18 at 9 a.m.

The developer is proposing the $14 billion project as a 4.5 million-square-foot campus on nearly 700 acres of rural land on Rock Mountain Lake Road.

Killings emphasized that the project’s development is still in the early stages.

“All we’re doing right now is just rezoning the property, and this is just a step in that direction,” he said. “Should the property get rezoned, then the developer is going to be required to meet all the environmental and other concerns that the public seems to have on this.”

If that’s approved by the council, then next steps would include approval for a building permit, plus state and federal environmental permits, approval from the state’s transportation agency, and more approval from the county for water and sewage facilities, Killings said.

“I think the biggest hit that the city has taken is that they have silently endured a bit of a beating in the press, that they are not concerned and that they won’t disclose any information,” he said. “Well, they are concerned, and they are doing their due diligence over this.”

“How the vote will go, we’ll have to wait and see,” he added.