The Franklin Circuit Court's May 9 opinion affirming the public's right of access to the actuarial analysis of the governor's original pension bill carefully parses, and rejects, each legal argument advanced by the State Budget Director in support of his denial of the request.

Since it is headed to the appellate courts, it may take us one step closer to a stricter construction — as required by KRS 61.871 — of the two preliminary documents exceptions, KRS 61.878(1)(i) and KRS 61.878(1)(j), that address entirely separate records sets (drafts, notes, and correspondence with private individuals v. recommendations and memoranda in which opinions are expressed or policies formulated).

It may confirm, once and for all, that a record generated after final action is taken — including the decision to take no action — can never be treated as a "preliminary" or "pre-decisional" record under these exceptions. It must be recognized for what is is: post-decisional and therefore not entitled to statutory protection.

If, for no other reason, the opinion could be invaluable to a body of law construing these exceptions to the open records law that has not evolved since the exceptions were first analyzed in case law in the early 1980s.

But one question remains.

It is not a question that was raised by the parties, and therefore not a question addressed by the court, but it is one that has been immensely troubling since this records access dispute arose.

That question is: On what legal authority did the budget director usurp the role of records custodian for the Kentucky Retirement Systems. The Retirement Systems commissioned and paid for the actuarial analysis — by statute — making it a record of the Retirement Systems and NOT the Office of the Budget Director. The Budget Director serves as one of 17 members of the Retirement Systems but NOT as its records custodian.

The decision whether to release the actuarial analysis rested with the Retirement Systems and not with the Office of Budget Director.

It's is now clear why the budget director wrestled the actuarial analysis out of the Retirement Systems' hands —to avoid "inconvenience or embarrassment" to at least one major public official — but the question remains: On what legal authority did he do this?

As reflected in a post written shortly after the oral argument in this case that appears below, this is an exceedingly important question.

It could establish a bad precedent for the centralization of all records access decisions in the chief executive's office — or at least those that relate to records reflecting inconvenient truths for the chief executive.

It is not one that the appellate courts will address, since it was not raised below, but — should it become an accepted practice — it threatens the statutory underpinnings of the open records law by divesting individual agencies of their duties, responsibilities, and authorities under the law.

It represents a serious threat to one of the bedrock principles of the open records law.