Like it or not, the Kentucky Retirement Systems has "abdicated" it's specific statutory duties to post investment contracts under SB 2 and its general statutory duties under KRS 61.870 to 61.884 (the open records law).

At a September 12 meeting, KRS officials expressed indignation at Auditor Mike Harmon's special examination and the finding that responsibility for noncompliance rests with KRS:

"[KRS Executive Director David] Eager stated that his frustration with the report was that 'it looked like we were out of control.' He maintained that most of the redacted information was on contracts signed before the legislature passed the transparency law in 2017.

Mark Blackwell, executive director of the KRS Office of Legal Services, argued the law does not require KRS to redact information. 'What is the responsibility of the retirement system is to post documents that have been redacted,' he claimed. Eager contended that if KRS redacted information it could be held liable for the disclosure of proprietary information."

But Kentucky's Auditor of Public Accounts, investment and pension consultant and former KRS trustee, Chris Tobe, and the Kentucky Open Government Coalition have refuted these arguments.

http://apps.auditor.ky.gov/Public/Audit_Reports/Archive/2019RetirementS…

https://www.linkedin.com/pulse/retirement-system-audit-could-have-come-…

On August 30, we wrote:

[It is the KRS investment managers who,] KRS unapologetically acknowledges, determine the extent to which it complies with state law. They — and *not* KRS — decide what the public is permitted to know about their fees and investment contracts.

[But] the open records law places the burden on the KRS to critically analyze the investment managers' proposed redactions and to determine if those redactions are legally defensible.

[It is unclear] how, where, or on what authority the notion first emerged that the private entity 'must determine what information to redact' and that the agency 'cannot be the legal arbitrator of what should, and should not be, redacted.' But that view is contrary to forty plus years of open records analysis. KRS is, in fact and in law, the 'legal arbitrator' *even at the risk of litigation*.

As for KRS's attempt to distinguish contracts executed before the passage of SB 2 in 2017 and contracts executed after 2017, this is a false dichotomy.

The open records law was enacted in 1976. It applied to contracts executed before and after 2017. SB 2 mandated posting of the contracts and fees after 2017 but did not distinguish between pre- and post-2017 contracts. 'All contracts or offerings for services, goods, or property purchased or utilized by the system' must, perforce, be posted.

KRS's defense that 'it is impossible to get the required permission from managers, general partners, and all of the limited partners to *let* us post what are otherwise confidential contracts' in place prior to 2017 is premised on this false dichotomy."

https://www.facebook.com/419650175248377/posts/505591926654201?sfns=mo

We await KRS's formal response to the Auditor's conclusion that KRS has fallen "drastically short" of it statutory duty to improve transparency.

For now, the only "transparent" thing about KRS's defense is it's desire to remain "opaque."