The Kentucky Public Pension Authority and Louisville attorney Jordan White have resolved the open records suit that resulted in Franklin Circuit Court Judge Phillip Shepherd’s August 25 opinion and order directing KPPA to release the $1.2 million Calcaterra-Pollack report and to “provide, within 30 days of the entry of this Order, an Index of the related documents requested, including an Affidavit from the appropriate official of KPPA describing their contents and an explanation for why they were withheld.”
https://kyopengov.org/blog/open-records-lawsuit-seeks-release-12m-taxpa…
https://kyopengov.org/blog/franklin-circuit-court-provides-keys-may-unl…
On September 6, KPPA released the report summarizing Calcaterra-Pollack’s factual findings following the New York law firm’s investigation 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.” But KPPA ignored the court’s September 26 deadline for production of the index and affidavit of records responsive to White’s request for:
• records concerning the “Personal Service Contract” for “Legal Investigative Services” between the Commonwealth of Kentucky and the Kentucky Retirement Systems and the Calcaterra Pollack, LLC effective November 23, 2020 through September 30, 2021, including the “detailed report,” the summary report, all drafts of the detailed and summary reports, and “any other report, record or presentation generated as a result of Calcaterra’s investigation of ‘specific investment activities conducted’ by KRS” and
• communications between the KPPA/KRS and any other party concerning: the “Personal Services Contract” for “Legal Investigative Services” by and between the Commonwealth of Kentucky and the KRS and Calcaterra Pollack relating to the reports.
White subsequently filed a Motion to Compel Compliance with the Court’s August 25 Order, asking the court to find “KPPA in contempt of its August 25 Order, order KPPA to produce the Index and Affidavit within three days, and award Plaintiff costs, including reasonable attorney’s fees, incurred for having to move this Court to tell KPPA to do what it already should have done and that the Court had ordered it to do.”
https://kyopengov.org/blog/its-back-franklin-circuit-court-plaintiff-jo…
A hearing on White’s motion was scheduled for October 12.
On October 10, White and KPPA filed a Stipulation with the court withdrawing the Motion to Compel in exchange for a “discovery protocol to govern KPPA’s review and production of documents in response to: (1) Plaintiff’s Open Records Request #2 as set forth in his May 12, 2021 letter to KPPA and (2) Blackstone’s Alternative Asset Management L.P.’s First Set of Requests for Production of Documents served on December 23, 2021 in the case styled Commonwealth of Kentucky v. KKR & Co. L.P., et al., Case No. 17-CI-01348.”
Under the terms of the Stipulation, KPPA is required to “upload all documents in KPPA’s possession that were reviewed by Calcaterra Pollack, LLP, in connection with the investigation resulting in Calcaterra Pollack’s Investigation Report (which represent the entirety of the documents that KPPA provided to Calcaterra Pollack in connection with its investigation), and all documents responsive to White’s request for communications between the KPPA/KRS and any other party concerning: the ‘Personal Service Contract’ for ‘Legal Investigative Services’ between the Commonwealth of Kentucky and the KRS and the Calcaterra law firm effective November 23, 2020 through September 30, 2021; Calcaterra’s ‘detailed’ and ‘summary’ reports; any and all drafts of the detailed and summary reports; and any other report, record or presentation
generated as a result of Calcaterra’s investigation of ‘specific investment activities conducted’ by the KRS.”
The Stipulation provides for rolling production of all non-privileged Calcaterra Documents within 30 days of the Stipulation and completion of its production of the Calcaterra Documents within 4 months of the Stipulation. KPPA must provide privilege logs for any records withheld within 60 days after a production.
As noted, KPPA and White include in the open records case Stipulation additional terms governing the rolling production of records identified in Blackstone Alternative Asset Management’s First Set of Requests for Production of Documents.
White reserves “all rights with respect to the relief sought” in his Motion to Compel — presumably in the event KPPA fails to satisfy a term of the Stipulation.
What’s best for the parties is not always best for the public.
In enacting the open records law, “the Legislature clearly intended to grant any member of the public as much right to access to information as the next.” In other words, what is accessible to one — under the open records law — is accessible to all under the law.
https://law.justia.com/cases/kentucky/court-of-appeals/1994/93-ca-00185…
The public benefited from the court-ordered disclosure of the Calcaterra-Pollack Report but — short of a second legal battle — may not have access to the additional Calcaterra-Pollack Documents White requested under the open records law.
These documents have a direct bearing on Judge Shepherd’s observations about KPPA’s questionable bidding practices and the superficiality of Calcaterra-Pollack’s investigation and would have enabled members of the public to decide for themselves.
Moreover, a published opinion of an appellate court — affirming Judge Shepherd’s opinion — would have substantially advanced the open records law by establishing statewide precedent for the proposition that:
“Neither the attorney-client privilege nor work product doctrine protects a mere factual record. Moreover, a compilation of facts cannot be ‘funnel[ed]’ through attorneys in order to ‘confer privilege on otherwise unprivileged records.’
“Simply put, KPPA can neither shield mere facts from disclosure nor convert them into materials that can be shielded from disclosure by engaging a law firm, at significant taxpayer expense, to gather and summarize such facts.”
Perhaps it was for these reasons that KPPA demonstrated such willingness to enter into a stipulation with a party whose discovery and open records requests it had consistently resisted.
