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Fischer administration had process for burying records requests that were 'embarrassing'

Louisville Courier Journal


A political appointee of former Louisville Mayor Greg Fischer improperly screened open records requests and withheld information considered "embarrassing," The Courier Journal has learned.



The practice was discovered and discussed by Mayor Craig Greenberg’s transition team last fall while learning about the open records process from Metro Government staff, Metro Councilman Anthony Piagentini, R-19th District, told The Courier Journal this month. Piagentini was part of that discussion while serving on a transition team committee focused on the city's budget and operations and was part of those discussions.


Piagentini said Annale Taylor, Fischer’s general counsel from 2020 to 2022, became a “gatekeeper” for open records requests, though her position had no formal role in the process.


“Anything that had the potential to be embarrassing went to her,” he said. “And it was clear that she was making decisions on at least when to release, if not (whether) to release at all.”


Though it’s not clear how many records requests were affected, the withheld records may include items related to Louisville Metro Police's Explorer Program scandal in which officers sexually assaulted children in the since-disbanded program geared toward youth interested in law enforcement careers.


Fischer's Deputy Mayor Ellen Hesen said in an email Friday that the allegation is "preposterous and false." Fischer responded to a text message from The Courier Journal saying he read Hesen's reply to the newspaper and had nothing to add to it. (Hesen left office with Fischer as Greenberg became mayor at the start of January.)


Greenberg's administration provided a statement to The Courier Journal that did not acknowledge the problem or address whether the administration would rectify it, even though they were given a week to respond. The statement didn't say whether the administration would continue or stop the improper practice.


Greenberg inherits backlog of requests

Kevin Trager, Greenberg's press secretary, said there is a "severe backlog of open records requests due to an explosion of requests and chronic understaffing" and said that the administration is working with a "sense of urgency" to develop a plan to address the backlog, including seeking funding for more staff in the next budget. The Courier Journal reported on the backlog in May.


“The public’s right to know is essential and this administration is committed to providing timely responses to open records requests," Trager said in the statement.


Greenberg succeeded Fischer, a fellow Democrat who was term-limited after serving as mayor since 2011, after winning the November election. He took office Jan. 2.



When asked directly about the allegations in an email, Kenyon Meyer, an attorney who represents the county attorney's office and Taylor, wrote that Taylor disputes any suggestion that she did anything improper in her role as general counsel to Fischer. Meyer did not deny the specific allegations about Taylor's role.


"In that role, she was involved in open records matters and always did her best to ensure compliance with the law," Meyer wrote. "Members of the Mayor’s team regularly reviewed the open record requests log."


Jon Fleischaker, a Louisville attorney who represents The Courier Journal, the Kentucky Press Association and other media outlets in First Amendment matters, said Trager's statement is "meaningless" and they have a duty to the public to disclose the apparent illegitimate process and then release the records for all requests that were ignored or improperly denied.


“(Greenberg's) apparent refusal to release the records now and to acknowledge the cover-up that has existed for at least two years by the Fischer administration says to me that they’re continuing the cover-up and are now a party to it instead of bringing new ideas about transparency," Fleischaker said.


Fleischaker is the primary author of Kentucky's Open Records Act.


“The open records law has a penalty for each day a record is withheld. They have a responsibility for the days (since Jan. 2),” he said.


Michael Abate, an attorney from Fleischaker's firm who also represents The Courier Journal, said the situation is “incredibly troubling.”


“We knew Louisville Metro routinely violated (the law) by failing to respond timely – and the attorney general agreed,” Abate said. “But we have no idea how many requests were just improperly denied – or ignored – for political purposes.”


The request review process

Hesen in her email to The Courier Journal wrote that Fischer's administration held regular meetings to review a list of open records requests each week to ensure the communicators and lawyers in each agency were aware of requests, were working on providing what was legally required and had resources they needed to respond.


"In addition, this list of requests is in and of itself an open record, one which can be requested any time, and was requested and received by many reporters," she wrote.


Hesen also claimed that this allegation had been "reviewed by outside agencies and not been substantiated because it is baseless." However, she did not provide any information about which agencies had reviewed it, or pointed to any such findings, and to The Courier Journal’s knowledge these allegations have never been publicly disclosed or reported.



In 2021, Fischer’s office put in an administrative structure – an open records portal – that delays responses and puts unnecessary distance between requestors and agencies that hold the records. Since then every city request is funneled through the portal manned by staff at the open records office, which is part of the city's Office of Management and Budget. Requests no longer go directly to individual Metro Government department heads. Instead, records office staff reach out to a point of contact in each department.


On several occasions in 2022, Courier Journal reporters were told by departmental records custodians that they uploaded responsive information into the portal, but found out that the information would sit in the portal, sometimes for weeks, before city staff would release them.


Robin Berry, the city’s director of records compliance, told The Courier Journal in May that they had fielded more than 6,600 requests in a 10-month period. Berry said her office is too short-staffed to keep up with the volume of requests, but they started backing up more significantly early in 2022 when the city took on LMPD’s records compliance duties.


Piagentini said he’s not against the mayor’s office being aware of certain requests, but Taylor’s position did not have an official or legal role in handling open records requests.


“She was part of his staff who could review a press statement or provide advice on legal risk,” Piagentini said. “Her job was a politically appointed post (and she) happened to be an attorney.”


'Enemy of transparency'

Under Fischer, Louisville Metro Government repeatedly skirted Kentucky’s Open Records Act.


“They talked a lot about being transparent, but on every major issue, and certainly anything that has political salience, they oppose any real transparency,” Abate said. “And they were using the open records law and the exemptions as a tool to just delay and obstruct and slow down disclosure.”


“They refused to turn over documents in the Explorer case and went to extraordinary lengths to hide those from the public,” Abate added. “At every major turn, the administration was on the wrong side of transparency issues.”



Fischer’s administration refused to disclose the contents of a multi-billion bid for an Amazon facility even after the company rejected its pitch. The Kentucky Court of Appeals ruled in 2019 that Fischer had to turn the proposal over to The Courier Journal. Taylor, then an assistant county attorney, unsuccessfully represented Louisville Metro in its attempt to keep the bid permanently secret.


The records showed Louisville's bid cost about $170,000 to prepare and the city offered Amazon a riverfront campus spanning both sides of the Ohio River along with $2.5 billion in incentives over 20 years.


Another example was when a Jefferson Circuit Court judge in 2020 issued an injunction to stop Fischer and Metro Council members from meeting in secret about ongoing racial justice protests at the time in violation of the Open Meetings Act.


Abate said they also fought with the city about getting access to records related to Shotspotter, which is a controversial program cities use to detect gunfire.


“The city spent millions of dollars to implement it and they were refusing to turn over basic records and invoking inapplicable exemptions to prevent the public from scrutinizing whether that system works or whether it’s a good investment of public funds,” Abate said.


Fischer, Fleischaker said, was an “enemy of transparency.”


Reach Kala Kachmar at at 502-582-4469; kkachmar@courierjournal.com or @NewsQuip on Twitter. Reach Billy Kobin at bkobin@courierjournal.com


 

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