The Bevin gubernatorial administration's legal legacy to the incoming Beshear gubernatorial administration includes a number of decisions, some tough and some not so tough, relating to transparency and open government.

On the "not so tough" side of this equation are the cases currently pending in the appellate courts — a few still in circuit court — in which he took a position as attorney general affirming the public's right of access to public records.

Chief among these, of course, is the case now pending in the Kentucky Court of Appeals involving access to the actuarial analysis of Bevin's 2017 "Keeping the Promise" pension reform plan.

But there are many others. Among them are several cases involving access to records relating to sexual harassment in state agencies, including the Finance and Labor Cabinets and the Cabinet for Health and Family Services. In addition, a number of cases involving access to investigations into misconduct by state troopers at the Department of Kentucky State Police await final resolution by the appellate courts as does a KSP case involving access to its uniform citation database.

In all of these cases, Beshear affirmed the public's right of access to these records, his name appearing just above the name of the assistant attorney general who authored the decision.

He affirmed the public's right to electronic records transmitted by email, where requested, at no cost to the recipient (since no cost is incurred by the agency); pierced the veil of agency denials based on non-possession of requested records where those records are held "at the instance of and on behalf of" the agency; broadened the public's right of access to emailed inter- and intra-agency communications; and twice declared that agencies no longer have the option to deny open records requests submitted by email since the law mandating same took effect in June.

Perhaps most importantly, Beshear fully and finally rejected the controversial and widely criticized open records decision issued by his predecessor, Jack Conway, on his last day in office. In 15-ORD-226, Conway inexplicably and erroneously declared that communications about public business conducted by public officials on private email accounts are not public records. Subsequent attempts to codify this fallacious holding met with great resistance and were ultimately defeated.

In 19-ORD-206, Beshear at long last officially modified 15-ORD-226, declaring that a public official who communicates about public business on a private device or account "cannot shield such communications from" the open records law. Those communications are "'used' by a public agency" and are therefore "a public record of that agency," subject to the open records law.

This, alone, may be Beshear greatest contribution to the body of law governing open records disputes.

On the "tough" side of the equation is the record which is the subject of this Lexington Kentucky Herald-Leader article: the report prepared by Taft Stettinus and Hollister, an Indianapolis law firm retained by the Bevin administration at a cost to taxpayers of $601,765 to investigate former Governor Steve Beshear's administration.

Beshear's office has not rendered a decision on the public's right of access to this report.

In January, 2017, the Bevin administration released a 16 page report for which the law firm received $141,649. Although the law firm has been paid an additional $460,116 since January, 2017, no more records have been released.

Various excuses have been offered for the decision to withhold the report, and Bevin has, according to the Herald-Leader, disclaimed knowledge of the investigation. In responding to the Herald-Leader's inquiry, the administration characterized the law firm's report as "preliminary" on November 1, 2019.

To what "final action" the report was "preliminary" was unclear on November 1 and is even more unclear now as Bevin leaves office. What is clear is that Kentucky's courts have increasingly demonstrated frustration with the notion that a public record is forever "preliminary" and will never be accessible to the public.

If presented with an open records request for the Taft report, the new governor will face a sterner test of his commitment to open government than those records access disputes on which he has already weighed in as attorney general.

The latter, we trust, will be swiftly dispatched by settlement and disclosure of the records to which Governor-elect Beshear has already declared the public has a right of access.