"The taxpayers paid for this report. They have a right to review it in full."

This is how Franklin Circuit Court Judge Phillip Shepherd concluded a September 2, 2020, opinion affirming The State Journal's right to an unredacted copy of an investigative report prepared by a Lexington law firm under a $14,500 contract with the Franklin County Jailer.

Five months later, the Kentucky Retirement Systems announced a $1.2 million contract with a New York law firm "to investigate 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 and produce a detailed report documenting their investigation and findings."

The contract also includes a term under which KRS "may ask the Contractor to produce a summary report that would be suitable to publish to the public without waiving attorney/client privilege."

This term suggests that KRS envisions two reports: a "detailed report" 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" and "a summary report that would be suitable to publish to the public without waiving attorney/client privilege."

The law firm's "detailed" report will be treated as confidential and inaccessible to the public under the attorney/client privilege.

The law firm's summary, and likely sanitized, report will be "publish[ed] to the public without waiving attorney/client privilege."

The KRS contract with Calceterra Pollack, LLP, begins with the erroneous presumption that it can "contract away" the public's right to know. It is a presumption that is at odds with the statement of legislative intent found in the open records law recognizing that "free and open examination of public records is in the public interest."

It is a presumption that is at odds with the Franklin Circuit Court's September 2 holding that the public was entitled to access the full report — for which the public paid $14,500 — in Frankfort News Media, LLC v Rick Rogers, et al.

And it is a presumption that is at odds with the publication last week of the $190,000 Hillard & Heintze investigation of, and report on Louisville Metro Police Department — notwithstanding its consultant's apparent belief that the taxpayer funded investigation and report was "confidential and proprietary."

The fact that a law firm will conduct the investigation for the KRS does not alter the resulting report's status as a "public record" for open records purposes. The fact that the investigation and report pertain to a matter in litigation may afford some protection under the privilege, but there is much to be sorted out, most importantly whether the law firm/consultant is acting in the role of investigator or whether it is acting in the role of legal adviser.

One thing is clear. The burden of proving that the attorney/client privilege applies to the $1.2 million dollar report — upon its completion and assuming that access to it is sought — will rest with the Kentucky Retirement Systems.

In general, the attorney/client privilege is "strictly construed and given no greater application than is necessary to further its objective." The law favors disclosure.

Merely saying that a public record is protected by the attorney/client privilege does not make it so. The Attorney General and the courts demand factual substantiation from the public agency that claims the privilege.

KRS imperils itself — and deserves the public — by proceeding from this false contractual premise. After all, taxpayers will pay for the report. They have a right to review it.