The Kentucky Open Government Coalition has submitted a formal request to the Kentucky Public Pension Authority, urging the Authority to release an unredacted copy of the "detailed" Calcaterra Pollack report delivered to the Kentucky Attorney General on May 13.

KPPA denied our earlier open records request for a copy of the report. The Courier Journal's open records request to Attorney General Daniel Cameron for a copy of the report was also denied. It is our understanding that requests submitted by The Herald-Leader are still pending.

The full text of our letter follows:

May 25, 2021

Mr. David Eager, Executive Director

Kentucky Public Pension Authority

1260 Louisville Road

Frankfort, KY 40601

Re: Voluntary disclosure of Calcaterra Pollack report

Dear Mr. Eager:

The Kentucky Open Government Coalition today adds its voice to those of other individuals and groups strongly urging the Kentucky Public Pension Authority to make public the "detailed" Calcaterra Pollack report documenting the investigation and findings into "specific investment activities conducted by the Kentucky Retirement Systems to determine if there are any improper or illegal activities on the part of the parties involved" that was delivered in final form to the Kentucky Attorney General on May 13, 2021.

The Coalition is a nonprofit, nonpartisan organization formed in 2019 as a citizens voice for open government advocacy, education, and outreach in Kentucky. No single issue confronting Kentucky has broader implications than the pension crisis on which the report bears, directly or indirectly affecting every Kentuckian. And it was Kentuckians who footed the $1.2 million bill for the report.

To quote a 2020 Franklin Circuit Court opinion affirming the public's right of access to an investigative report prepared by a law firm under contract with a public agency, "The taxpayers paid for this report. They have a right to review it in full." Frankfort News Media, LLC v. Rick Rogers, et al. No. 19-CI-00907 (Franklin Circuit Court, Division 1, 9/02/2020) p. 7.

In so holding, the court "[took] notice that, '[a]t its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.' For example, through disclosure of complaints and investigation materials, the public can discern whether [public] agencies — funded by taxpayer dollars—are efficiently and effectively investigating and addressing misconduct. This provides insight into the behavior of government [officials and] employees, as well as the efficiency and productivity of our public workplaces. Perhaps more importantly, it ensures that investigations are handled competently and without favoritism." Frankfort News Media, p. 7.

In this vein, we would point out that public agencies across the Commonwealth have regularly abandoned claims of exemption in favor of full disclosure of investigative reports conducted at their behest, and at taxpayer expense, though those reports no doubt "caused inconvenience or embarrassment to public officials or others." KRS 61.871. See, e.g., https://www.courier-journal.com/story/news/politics/metro-government/20… (recently released investigative report prepared by former FBI agent David Beyer, "at a maximum cost of $30,000" candidly evaluates errors and omissions in ill-advised hiring of Fernando Risco as TARC executive director); https://www.wdrb.com/news/lmpd-review-finds-police-department-needs-maj… ( Louisville Metro releases 155-page report by Hillard Heintze after Mayor Greg Fischer ordered a complete review of the Louisville Metro Police Department).

In each of these cases, public agencies acknowledged that "free and open examination of public records is in the public interest." Id. In each of these cases, the public agency served the public's interest in avoiding protracted litigation at taxpayer expense and, most importantly, in verifying that "public servants are indeed serving the public." Board of Examiners of Psychologists v Courier Journal, 826 S.W.2d 324, 326 (Ky. 1992).

The Coalition rejects the KPPA "compromise," improperly memorialized as a contract term, that release of a "summary report . . . suitable to publish to the public," rather than the "detailed" report for which the public paid, discharges KPPA's legal obligations under the Kentucky Open Records Act.

This contract term proceeds from the false assumption that KPPA can "contract away" the public's right to know. See, Central Kentucky News-Journal v. George, supra, 306 S.W.3d 41, 46 (Ky. 2010) "[A] confidentiality clause reached by agreement of the parties … cannot in and of itself create an inherent right to privacy superior and exempt from the statutory mandate for disclosure contained in the Open Records Act."

Make no mistake. The Calcaterra Pollack report, in "detail," is a public record as that term is clearly defined at KRS 61.870(2). Any argument to the contrary is fundamentally at odds with the statement of legislative intent found at KRS 61.871 — recognizing the salutary nature of "free and open examination of public records" — as well as the Preamble to Kentucky's open government laws, recognizing that:

"[T]he people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created." 1974 HB 100, Preamble.

It behooves both the KPPA, and the public it serves, to acknowledge these foundational principles of transparency and accountability and release an unredacted copy of the full Calcaterra Pollack report forthwith.

The Kentucky Open Government Coalition urges KPPA to do so immediately.

Respectfully,

Amye Bensenhaver

Co-Director

/s/ Amye Bensenhaver

Jennifer P. Brown

Co-Director

/s/ Jennifer P. Brown

* * * * *

Following email delivery of our letter, Mr. Eager responded:

"The KPPA open records policy as it relates to the Calcaterra Pollack report is a matter for the KPPA Board and not the staff. The Board will be made [aware] of your request."

While we appreciate the swiftness of his response, we respectfully disagree.

Did we learn nothing from the costly and protracted legal battle for the actuarial analysis of the 2017 Bevin pension "reform" plan?

The Calcaterra Pollack report is a KPPA record. KPPA's official custodian must determine its accessibility. Leaving it to the board of trustees ensures delays and leaves the decision in the hands of individuals who lack the legal expertise and training to assess the exempt or nonexempt status of the report. It is unlikely the board will make an objective decision based on the report's content or — again perhaps more importantly — the interest of the public the board serves.