The Louisville Metro Police Department has sued The Courier Journal to avoid releasing records in the Explorer Scout sex abuse scandal that roiled city government and led to criminal prosecutions of two of its officers.
The move follows an Oct. 24 ruling from the Kentucky attorney general saying the city’s argument that it didn’t possess the records had “no merit” and that The Courier Journal was entitled to the investigatory files it requested.
The lawsuit, filed Thursday, claims the police department didn’t violate the state’s Open Records Act because it didn’t possess the records and had turned them over to the FBI.
But, in fact, city officials found 9,000 responsive documents related to the Explorer program investigation in a hidden folder on an LMPD computer while the appeals process with the attorney general was still pending, the city revealed midappeal.
Before informing the attorney general or The Courier Journal, the police department contacted the FBI task force it had previously sent records to and had the city’s information technology department remove the files and give them to the task force.
Jon Fleischaker, one of the attorneys representing The Courier Journal, wrote in a letter following that development that in the four decades since he helped write the state’s open records law, he couldn’t recall another case of “an agency so egregiously subverting the intent of the Act by willfully and purposefully disposing of responsive records during a pending appeal.”
Michael Abate, who also represents The Courier Journal, called it a “shocking and willful violation of the law” to dispose of 9,000 admittedly responsive records — which concern an allegation of criminal misconduct by LMPD officers.
The police department’s lawsuit makes no mention of those 9,000 documents. It notes that “since the removal of the investigative records from LMPD, no records pertaining to the investigation have been provided to LMPD, created by LMPD, or are intended to be stored on any LMPD computers or other electronic equipment.”
It is asking a Jefferson Circuit Court judge to reverse the attorney general’s ruling and conclude that the city “complied with the Open Records Act in all respects.”
A request for comment from LMPD was not immediately returned. A spokeswoman for the mayor’s office directed a reporter to Josh Abner, spokesman for the Jefferson County Attorney’s Office. He declined to comment, citing ongoing litigation.
The Courier Journal this year sought the police department’s investigatory files in the cases of former officers who have admitted to sexually abusing teens they met through the department’s Explorer program, which was for youths interested in law enforcement.
The request was rejected by the police department and appealed to the Attorney General’s Office, which ruled in favor of releasing the records. LMPD had 30 days to hand over the records before the attorney general’s opinion had the force of law. The deadline would have been Saturday.
The sex abuse scandal ensnared the police department in controversy — and multiple, still pending, lawsuits — over its leadership’s handling of the sexual abuse and misconduct allegations.
The police department’s internal affairs investigators began looking into misconduct allegations against Officer Brandon Wood in 2016 and quickly broadened the scope of their inquiry to include former Officer Kenneth Betts amid mounting allegations of sexual abuse.
State and federal criminal charges followed in 2017 and 2018 and the youth program was indefinitely suspended.
The records in question underpin the criminal prosecution of Wood and Betts, which ended in plea deals this year.
In federal court, Wood pleaded guilty to a felony attempted enticement charge, admitting he tried to sexually exploit a teen he met through an Explorer program camp in Bullitt County where he was a counselor. He was sentenced to 70 months in prison.
Betts pleaded guilty to enticement, attempted enticement and child pornography charges involving four minors he met through the Explorer program. He was sentenced to 16 years in prison.
The former officer admitted to asking for and receiving sexually explicit pictures from one teen via Facebook and enticing another minor into sexual activity using social media sites. He also confessed to sending pictures of his genitals to a teen and “encouraging a three-way” with another, according to his plea agreement.
“Betts was persistent and graphic in his communications,” Assistant U.S. Attorney Jo Lawless wrote in a sentencing memorandum. “His recurring behavior with the four minors demonstrates the significance of his sexual interest in children.”
The two former officers also pleaded guilty in Jefferson Circuit Court to sexually abusing minors, each receiving a five-year sentence, to be served alongside their federal terms.
Wood pleaded guilty to seven counts of first-degree sexual abuse stemming from one victim. Betts entered a guilty plea to two sodomy charges, admitting he abused two minors.
Abate, the attorney for The Courier Journal, said Friday that this case was about “trying to obtain transparency into the most serious allegations of LMPD officers in recent memory.”
“Because those cases are done — officers have pled, these records have never been introduced into the court file and there won’t be a trial — the public will never know the full range of the conduct the officers engaged in, unless we can get these records,” he said.
“They’re essentially saying this should remain secret forever, and they’re trying to achieve that by deleting records they found before they had to answer for if they could withhold them,” Abate added.
Besides the existence of the 9,000 responsive documents in police possession, the appeals process revealed that the joint FBI and LMPD investigation into the shuttered Explorer program is ongoing, even after the prosecutions of Betts and Wood have concluded.
It also revealed the existence of a memorandum of understanding between the police department and the FBI about their joint task force. It was entered into in February 2018, but the terms of the agreement are unclear because the city has declined to release it.
Abate said Friday there was no basis for the city’s refusal to release that document because there is precedent declaring the public has a right to see any contracts entered into by city government.
“You can’t insert a confidentiality clause into a contract with city government and say it’s confidential to the public,” Abate said. “That’s been repeatedly rejected by Kentucky courts and the attorney general rejected it, too.”