Despite transparency pledge, mayor's office denies information, records related to affair

This story has been updated to correct the spelling of Metro Chief Operating Officer Rich Riebeling.

When Mayor Megan Barry first admitted to an affair with her police officer bodyguard, she pledged to be open and transparent in order to assure the public that no taxpayer funds were misused to further the relationship.

But since her Jan. 31 announcement of an affair with Sgt. Rob Forrest, Jr., the mayor's office has contended certain information and documents relating to the nearly two-year affair should be kept from the public.

Barry's aides have cited a little-used legal concept known as "deliberative process" that is intended to allow top government officials to deliberate privately as they craft public policy.

The information and records the mayor's office has declined to release to the USA TODAY NETWORK - Tennessee include:

The number of employees in the Mayor's office who have been involved in responding to the unfolding scandal, instead of other duties, and the hours they have spent doing so. Those employees' salaries are paid for by taxpayers.

The written communications between the mayor, her top aides and officials in the Metro Nashville Police Department about the affair. State law gives members of the public the right to review government records, including texts and email correspondence involving public officials.

The written communications between the mayor, her top aides and any private individual working on behalf of the mayor that reference Barry's affair.

The denial of information is at odds with the mayor's public statements.

"We will give any records over to anyone who would like them," Barry said in a remarkable news conference last month in which she admitted to a nearly two-year affair with her chief bodyguard during a period the pair took ten official trips alone together.

Barry pledged to regain the trust of Nashville voters. The news conference occurred on the same day Forrest retired after 31 years on the force.

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Two weeks later, a city clerk cited "deliberative process" in denying the USA TODAY NETWORK - Tennessee's request for all correspondence between the mayor, her spokesman Sean Braisted, the city's finance director Rich Riebeling, the mayor's speechwriter Michael Cass, Forrest and Metro Nashville Police Chief Steve Anderson about the affair.

The clerk also denied all written communication between those employees and any private individual working on behalf of Barry citing the same reason.

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Days later, Braisted again cited "deliberative process" in response to questions about the staff time and salaries expended on responding to media inquiries, crafting public statements, complying with law enforcement investigations or other work as a result of the mayor's affair.

Braisted answered one question: whether the mayor's office had expended any funds on outside consultants or public relations firms to respond to the affair's fallout.

"No Metro funds have been used for any consultants in this matter," Braisted said. "Beyond that, I'm not going to comment on our deliberative process."

In response to additional questions about why "deliberative process" was cited in denying information about city resources expended on responding to the affair, Braisted said:

"The documents and/or information you have requested does not exist and under the Tennessee Open Records Act we are not required to manufacture/create documents."

City officials routinely pull together estimated cost of staff time and hours spent on compiling public records requests in order to bill the media and public.

There are 538 exemptions in the state's public records act, but deliberative process is not one of them.

In 2013, the state Court of Appeals ruled that the privilege could be used to block the release of notes by the governor’s legal counsel.

That case, Davidson v. Bredesen, was brought by a man protesting cuts to the state-run Medicaid program, TennCare.

Karl Davidson claimed the administration of then-Gov. Phil Bredesen violated his First Amendment rights during a protest at the state capitol.

During the court proceedings Davidson sought the release of notes created by the governor’s legal counsel. The administration fought the release, citing attorney-client privilege and the deliberative process privilege.

The court ruled in the administration’s favor, and said the deliberative process privilege protects “the confidentiality of conversations and deliberations among high government officials” and “ensures frank and open discussion and, therefore, more efficient government operations.”

"The privilege was recognized to protect the privacy of communications between the governor of Tennessee, who was being sued, and his closest advisers about the matter he was being sued about," said Deborah Fisher, executive director of the Tennessee Coalition for Open Government.

"I don't think the intention was to exempt from the public records laws all communications and related records by county mayors dealing with a crisis," she said. "That would eviscerate the public records law and give broad authority to the executive branches of government to shut down access to documents that shed light on what the government is doing and why."

Barry's administration has previously cited "deliberative process" in refusing to release public records to the USA TODAY NETWORK - Tennessee.

The requested records included staffers' emails and text messages related to a now-defunct $101 million Greer Stadium redevelopment project. After initially refusing, a spokesman provided records when the network was preparing to publish a story.

The Barry administration has also been criticized over a lack of transparency involving the future of Nashville General Hospital, the city's safety net healthcare facility for low-income and uninsured patients.

Barry in November announced plans to close inpatient care at the facility, based in part on the advice on an unpaid consultant. The mayor's office declined to provide records related to the consultant's advice. The mayor has since retreated on those plans and a city council committee, which plans to meet in public beginning in March, is weighing the hospital's future.

USA TODAY NETWORK-Tennessee reporters Dave Boucher, Joey Garrison and Mike Reicher contributed to this story.

Reach Anita Wadhwani at awadhwani@tennessean.com; 615-259-8092 or on Twitter @AnitaWadhwani.