No one can really answer the question the Courier Journal poses in the headline to it's story concerning today's hearing in the Franklin Circuit Court.

Its a safe bet that, however Judge Phillip Shepherd rules, this case will go the distance through the appellate courts unless Matt Bevin is not re-elected.

There is clear precedent. In 2016, the Courier Journal and Lexington Herald-Leader were victorious in an open records case pitting the newspapers against the Cabinet for Health and Family Services. The issue presented was access to records relating to fatalities and near fatalities of children under the Cabinet's supervision.

The case was filed during the gubernatorial administration of Steve Beshear. In light of the gravity of the issues presented, and a clear pattern of deception and subterfuge on the part of the Cabinet, the Franklin Circuit Court awarded penalties in the amount of $756,000 as well as the Courier's and Herald-Leader's attorney fees.

The case was appealed to the Court of Appeals. In 2016, that court affirmed the Franklin Circuit Court in a scathing rebuke of the Cabinet's conduct.

Enter Matt Bevin. His administration extended an offer of settlement to the CJ and HL which was accepted. My recollection is that the newspapers settled for $250,000 and their attorneys received their fees for the five year legal battle.

Clearly, if Matt Bevin is re-elected we are looking at another protracted legal battle (although counsel for the budget director indicated that his client would agree to expedite the appeal).

If Matt Bevin loses, look for Andy Beshear to settled the case. So — depending on the outcome of the election — the answer to the question the CJ poses may be "sooner rather than later."

Why is the issue of access to the 2017 actuarial analysis of the "Keeping the Promise" plan for pension reform still in the courts? Whatever it's "preliminary" status at the time of Ellen Suetholz's November 14, 2017, request, hasn't it now forfeited it's preliminary characterization?

Here's the problem. The question whether a public agency violated the open records law turns on the record's status at the time of the request and not on what has transpired since (though the budget director's attorney argued it never became final because it was "shelved" by the General Assembly).

My belief is that the actuarial analysis was a nonexempt public record on November 14, the date Suetholz made her request.

It was not a preliminary "draft," notwithstanding the budget director's attempts to characterize it as such. Stamping it a "DRAFT" had no legal affect since GRS, the company retained by the Kentucky Retirement Systems to review the "Keeping the Promise" plan, presented it to KRS, under the terms of its contract with KRS, as a "cold, hard, economic analysis" of a highly touted plan for resolving the pension crisis —not a recommendation open to discussion and revision.

Like any other actuarial analysis, it was completed per the statute AFTER the details of the plan were finalized and made public. It represented a "post decisional" analysis of a formal and final — albeit ultimately unsuccessful — solution to the pension crisis rather than a "predecisional" — and therefore "preliminary" — analysis of a possible solution still in the "deliberative" phase.

Shepherd ably drew this distinction in his comments and questions to the budget director's attorney in court today.

The argument that the GRS actuarial analysis was a "draft" simply defies logic. The budget director's attorney argued that it was still undergoing revision on November 14 when Suetholz made her request.

This begs the question: whose revision? GRS was presumably hired for its expertise. Is it reasonable to suggest that the budget director, or anyone in the administration, had greater expertise and therefore the discretion to dictate changes to GRS's professionally expert analysis.

And why, four days earlier, did the Kentucky Teachers Retirement Systems release the actuarial report on it's piece of the "Keeping the Promise" plan? In *both* cases, the actuarial analysis was a public record upon submission to the KRS and the KTRS.

The answer is simple. The administration exercises far greater control over the KRS than the KTRS, and it stepped in (through the offices of the budget director) to block disclosure.

Shepherd touched on an issue that has deeply troubled me and that I have raised several times. The actuarial analysis ultimately belongs to the public — which bore the expense of its creation and whose interest cannot be disputed — but its "custodian" should have been the KRS. How, then, did the actuarial analysis become a record of the budget director? Why did he, or the administration to which he is attached, decide whether Suetholz's request should be honored?

These are serious questions with long term implications for the open records law as the administration apparently seeks to centralize all control of the records of the executive branch in the governor's office.

This leads to my final observation. Open records disputes are not about big paydays for attorneys at the end of the legal battle. Attorneys are lucky to be made whole by an award of their legal fees.

As the number of these cases increase exponentially — in direct correlation to public agency obstructionism — how completely cynical is it to suggest — as counsel for the budget director suggested — that if an attorney agrees to take an open records case pro bono he or she should not be able to recover his or her attorneys' fees?

As Ellen Suetholz told me in a conversation late today, the greater issues in this case should not be lost in a discussion of attorneys' fees.

And Ellen is 100% right.

But if the budget director's argument were to prevail, attorneys would be disincentivized to take open records cases altogether.

The "payday" in an open records case is hardly a windfall — the budget director's attorney calculated the average award of attorneys' fees at between $9000 and $30,000 — enough to compensate the attorney for his or her efforts and no more. But without the possibility of such an award of fees, fewer and fewer attorneys will be willing to invest their time and energy in defense of the public's right to know.

The opponents of transparency will have a clear and easy path to wholesale secrecy in the conduct of the *public's* business.