By Andrew Wolfson, The Courier-Journal
LOUISVILLE, Ky. — In what advocates called a victory for openness in government, the Kentucky Supreme Court has decided The Courier Journal should be allowed to inspect the city of Louisville’s failed bid to land Amazon’s second headquarters.
The court without comment Aug. 13 rejected the city’s request to hear its appeal of a Court of Appeals opinion last year that the newspaper was entitled to the documents.
The city had argued that even after Amazon rejected its pitch, the proposal was still “preliminary” and exempt under the state open records law. The city also contended that giving up what it called its “game plan” for luring the retail shipping giant could hurt future recruitment efforts.
Jon Fleischaker, an attorney for The Courier Journal, called the decision a victory for transparency and said it sends an important message to Mayor Greg Fischer.
“The mayor has consistently rejected transparency issues involving the public interest,” Fleischaker said. “The court is now telling him he is wrong.”
Amye Bensenhaver, who co-founded the Kentucky Open Government Coalition, said she was “very excited about the news.”
Bensenhaver, a retired assistant attorney general who specialized for 25 years in Kentucky’s open records and meetings laws, said the city’s attempts to expand exemptions allowed under the open records act “disserves the public.”
“The irony, of course, is that many cities made their Amazon bid proposals accessible to the public and some even posted them online,” she said. “For this reason alone, Louisville’s argument was a hollow one.”
In a statement, Fischer spokeswoman Jean Porter said: “We took this to the courts not because of concern about this particular proposal, but because of concerns about how future economic development projects — which may need or want to remain confidential until a business location decision is made — could be impacted by the question about what is and is not exempt under Kentucky’s Open Records law.”
After Amazon announced in 2017 it was looking for a place to build a second headquarters, where it would invest $5 billion in construction and create up to 50,000 jobs, the retail giant received 238 proposals from cities across the United States and Canada.
In January 2018, when Amazon pared the field to 20 finalists, eliminating Louisville, a Courier Journal reporter asked for the city’s sales pitch, including incentives.
The city provided a heavily redacted version of its 118-page proposal, on which it spent $70,000 in taxpayer funds, but the document omitted all information about incentives and prospective locations for HQ2.
The Courier Journal sued, and Jefferson Circuit Judge Susan Schultz Gibson rejected the city’s argument that the proposal was preliminary, saying that made no sense once Amazon announced Louisville was no longer in the running.
The city appealed, and the Court of Appeals also rejected its arguments, including that revealing its proposal could hurt future business-recruitment attempts.
Writing for a unanimous three-judge panel, Judge Irv Maze of Louisville said the basic policy of the open records act is that “free and open examination of public records is in the public interest … even though such examination may cause inconvenience or embarrassment to public officials or others.”
Courier Journal Editor Richard A. Green said it was critical taxpayers have the opportunity to review what incentives officials were considering.
“The courtship of Amazon was a national derby that pit cities against each other with taxpayers footing the bill. We felt strongly that Louisville taxpayers deserved the chance to review what was on the table — and, potentially, what could be offered in future deals for other companies,” Green said.
“We’re grateful for the Supreme Court’s ruling. It sends another clear signal to Louisville’s mayor and Metro Council: You cannot arrogantly ignore Kentucky’s Open Records Act and bypass the taxpayers who are writing these incentive checks worth millions for private businesses,” he added.
Bensenhaver said the city has made similar “hollow arguments” in denying the public access to the mayor’s Kentucky Derby guest list.
She said neither the economic development exceptions nor the preliminary documents exceptions are “catch-alls” allowing such secrecy.
Louisville Metro Council members in 2018 narrowly decided against forcing Fischer’s administration to reveal the identities of his Derby guests, which it argued would have a chilling effect on the ability to recruit new companies.
That year, the city spent $109,000 entertaining during Derby Week on expenditures including tickets to Churchill Downs, rooms at the Omni Louisville Hotel downtown, charter bus transportation and photography.
Amazon ultimately announced it would split its second headquarters between Arlington, Virginia, and New York City, but it pulled out of the latter deal after pushback from local activists and city council leaders who criticized the nearly $3 billion in performance-based incentives offered to the company in exchange for bringing 25,000 jobs to the area.
Related background stories:
What’s in it? What Louisville offered Amazon in HQ2 pitch