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US Police, county attorney's office hide 738,000 records in Kentucky sex abuse case

13:05  12 november  2020
13:05  12 november  2020 Source:   usatoday.com

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LOUISVILLE — Louisville Metro Police concealed at least 738,000 records documenting the sexual abuse of Explorer Scouts by two officers — then lied to keep the files from the public, records show.

The Louisville Courier Journal, part of the USA TODAY Network, last year requested all records regarding sexual abuse of minors by two officers in the Explorer Scout program for youths interested in law enforcement careers.

a close up of a person: Explorer emblem © Courier Journal Explorer emblem

Police officials and the Jefferson County Attorney’s office said they couldn't comply, insisting all the records had been turned over to the FBI for its investigation.

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But that wasn't true, according to records The Courier Journal recently obtained in the appeal of its open-records case.

In fact, the department still had at least 738,000 records, which the city allowed to be deleted.

The records could shed light on when department and city officials first learned of allegations of sexual abuse of youths by officers in the program and what the officials did — or failed to do — about it.

"I have practiced open-records law since the law was enacted 45 years ago, and I have never seen anything so brazen," said Jon Fleischaker, an attorney for The Courier Journal. "I think it an outrage."

Another lawyer for The Courier Journal, Michael Abate, said the city’s conduct was especially egregious given the case involves the sexual abuse of children by police officers and the department’s failure to prevent it.

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Sgt. John Bradley, an LMPD spokesman, said the department had no comment.

Kenyon Meyer, a lawyer hired by the county attorney’s office to investigate the claims, said his review is continuing, but he insisted he has found no evidence the office violated the open-records act or did anything wrong.

Explorer Scouts program riddled with sex abuse claims

The Explorer scandal began to unfold in October 2016, when the police department confirmed an officer was under investigation for his conduct in the program for young people considering careers in law enforcement.

Five months later, a 22-year-old identified as N.C., alleged in a lawsuit he was sexually abused by officers Kenneth Betts and Brandon Wood in the Explorer program when he was between 17 and 19 years old and that the abuse occurred in their homes and police cars.

a man posing for the camera: Kenneth Betts, left, and Brandon Wood © Louisville Metro Corrections, Louisville Kenneth Betts, left, and Brandon Wood

The suit, which six other plaintiffs later joined, also accused the city, the police department and then Lt. Curtis Flaherty, who ran the program, of conspiring to cover up the abuse. The defendants, who also include the Boy Scouts of America, later denied the allegations.

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The Courier Journal and other news outlets then reported Betts had been investigated in 2013 and 2014 for improper conduct with a female Explorer, but Conrad closed the investigation when Betts resigned in 2014.

On March 13, 2017, Mayor Greg Fischer shut the program down.

Former U.S. Attorney Kerry Harvey, who was hired by the city, found LMPD mishandled allegations that teens were sexually abused and harassed in the program and there was “violations of policy and mistakes in judgment, some significant."

But he concluded there was no evidence senior police commanders worked to cover up allegations of misconduct.

In April 2017, the FBI opened a criminal investigation into the Explorer program, after a request from the mayor. Wood and Betts eventually pleaded guilty to criminal charges.

Wood was sentenced to 70 months in prison for attempted enticement of a teen in the youth mentoring program.

Betts was sentenced to 16 years on child pornography and enticement charges. He also pleaded guilty to sodomy charges in state court.

Wood, 34, is incarcerated in a federal prison in Lisbon, Ohio, and scheduled for release in 2024.

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Betts, 36, is in prison in Loretto, Pennsylvania, and his release date is in 2032.

The lawsuits and criminal investigation are still pending.

Louisville police says it didn't have records. But it did.

In May and July of 2019, Courier Journal reporter Matt Glowicki filed requests for LMPD's investigative files on officers Brandon Wood and Kenneth Betts, who were accused of sexually abusing youths in the Explorer program.

LMPD records custodian Alicia Smiley responded that "any records … would previously have been turned over to the FBI,” which headed a joint task force that is still investigating the program.

When The Courier Journal appealed the denial of its request to the attorney general’s office, Assistant Jefferson County Attorney Annale Taylor told the AG’s office the same thing.

"LMPD does not have possession or control of the records," she wrote in a Sept. 3, 2019, letter to Assistant Attorney General Marcus Jones. "When the investigation was taken by the FBI, all copies of the investigative materials … were physically removed from the premises, digital devices and servers of LMPD."

In fact, LMPD still had hundreds of thousands of records on the Explorer investigation in its possession — despite saying it didn't.

Three months earlier, in June, Louisville Sgt. Robert Banta, a task force member, had told Taylor in an email he could provide "any and all documents involved in the Explorer investigation up until April 1, 2017, when the federal investigation was initiated.

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“All that information still resides in the PIU (Professional Integrity Unit) case file and is available to the county attorney’s office,” Banta said in his June 6, 2019, email, which he also sent to then-Chief Steve Conrad and LMPD legal adviser Dennis Sims.

The Public Integrity Unit investigates allegations of criminal conduct by police and other city employees.

Banta told Taylor specifically to "please advise what specific information you still need at this time, and we will ensure you have it by COB (close of business) tomorrow."

Timeline: Events in the Louisville Explorer Scout program sex abuse scandal

Fifteen days after telling the AG’s office the department had no records, Taylor advised in a second letter dated Sept. 18, 2019, LMPD had found about “9,000 documents” on a “hidden folder.”

But instead of keeping them, in response to The Courier Journal’s appeal in the open records case, the city’s information technology team removed the records and gave them to the FBI.

It turned out far more documents — hundreds of thousands — were found and deleted.

In an Oct. 21 letter to The Courier Journal's lawyers "amending previous factual statements made in error,” Assistant County Attorney Roy Denny acknowledged 9,700 folders containing 738,000 documents — 470 gigabytes of data — had been found on the secret folder.

Denny said those files would have been available on the city’s encrypted backup system for 30 days but now there is no way to recover them.

In the same letter, Denny said the city would ask the FBI and U.S. Attorney's office to turn over records responsive to The Courier Journal's open request. But he said because the documents are either subject to a protective order or contain the identity of minors, certain records may not be released.

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'They didn't tell the truth about it'

In an interview, Fleischaker said the city had in effect destroyed evidence.

"They have destroyed their ability to comply with the open-records law, and they did it purposely, and they didn’t tell the truth about it,” he said. "They can't require us to go elsewhere to get those documents."

Meyer disputes that, saying "no records were destroyed" and "The Courier Journal has every ability to obtain the records from the custodian of the records — the FBI."

In fact, the newspaper already filed a request to the FBI under the Freedom of Information Act, which was denied.

Meyer said Taylor “communicated to the attorney general what she believed to be the truth" — that the records were in the custody and control of the FBI.

But Fleischaker says the open records law doesn't require The Courier Journal to go to the FBI to get the records if LMPD has them.

"The law requires them to truthfully tell us what records they have in their possession," Fleischaker said.

"The law requires them to maintain the integrity of the documents. What they did is quite the opposite. That is a violation of the open-records law and potentially a violation of the law of tampering with evidence."

"They intentionally put them out of reach," Abate added.

Meyer said even though Banta knew the information still was "in the PIU file," Taylor thought the FBI would only allow it to be disclosed in lawsuits filed by former Explorer Scouts who allege they were sexually abused.

“She understood that Banta was communicating on behalf of the FBI about what the FBI would permit regarding the records it controlled,” Meyer said.

He also cited a letter from a federal prosecutor to LMPD saying the four sergeants deputized on the task force were prohibited by a federal rule from disclosing materials because the case was subject to a grand jury investigation.

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Taylor, who left the county attorney’s office last March and now works in City Hall, did not respond to a request for comment.

Courier Journal Editor Richard Green said he's baffled and angry with LMPD's failure to provide the Explorer documents.

“Over and over again, this is a police department that obfuscates and fails to remember it works for the taxpayers of Louisville and our commonwealth,” he said. “We will continue to vigilantly pursue the truth and these records, which must be analyzed.

"The Explorer case represents a total breakdown in trust between police and teens who had an interest in the law enforcement profession," Green added. "To now dodge the public's access to these documents speaks to an institutional disregard for the Open Records Act and the very residents LMPD is to serve and protect. My frustration with how it's been handled only underscores our commitment to dig even deeper and hold those in power to account."

Background: LMPD violated state law by withholding Explorer sex abuse records, attorney general rules

County attorney hires outside lawyer

In a statement, County Attorney Mike O’Connell said Monday he immediately hired outside counsel to investigate after The Courier Journal's lawyers alleged misconduct in court papers Oct. 23.

"The newspaper made significant claims, and I felt it was important to engage someone at the highest level with no connection to my office to assist in this matter,” O'Connell said.

"There are serious disagreements regarding the allegations made by the Courier Journal. Those will be addressed as expeditiously as possible. My immediate action should show that I take the matter seriously."

Meyer is being paid $293 an hour, which he described as a reduced rate.

The Courier Journal is scheduled to take depositions Nov. 13 from Banta and another task force member, Sgt. Kristen Downes.

Elizabeth Kuhn, a spokeswoman for Kentucky Attorney General Daniel Cameron, didn’t directly respond when asked if the office had been misled about the availability of records.

However, she said: “In a matter as consequential as the Explorer child sex abuse scandal, the transparency promised by the Open Records Act is essential, and the attorney general’s office relies upon the candor and diligence of the agencies subject to the act.”

In October 2019, the attorney general's office issued an opinion in favor of The Courier Journal, saying LMPD violated the open-records act by failing to search for responsive records and by failing to cite a statutory reason for withholding records.

The city and LMPD have sued to reverse that opinion.

Taylor’s second letter to the AG’s office included a Sept. 17 affidavit from Conrad in which he swore "at the time of the FBI’s adoption of the investigation, the LMPD investigative records … were removed from LMPD to be stored and maintained by the FBI, as it was no longer an LMPD investigation.”

Meyer said Conrad “truthfully set forth his understanding regarding the records.”

Fischer fired Conrad June 1 after learning that officers at the fatal shooting of popular West End restaurant owner David McAtee did not have their body cameras turned on.

Conrad had already announced he would retire at the end of June amid increasing pressure in the wake of the fatal police shooting of Breonna Taylor.

Follow Andrew Wolfson on Twitter: @adwolfson.

This article originally appeared on Louisville Courier Journal: Police, county attorney's office hide 738,000 records in Kentucky sex abuse case

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