Pressure on the Kentucky Public Pensions Authority is mounting as the recently reconfigured public agency continues to resist demands for disclosure of the Calcaterra Pollack report.
The report — for which taxpayers bore the $1.2 million cost — purportedly documents the investigation and findings into "specific investment activities conducted by the Kentucky Retirement System to determine if there are any improper or illegal activities on the part of the parties involved."
In recent weeks, KPPA summarily denied open records requests for the report submitted by the Kentucky Open Government Coalition, The Courier Journal, and The Herald Leader.
One day after KPPA's May 26 vote not to "intervene in the attorney general's amended complaint in the Mayberry action or to take any actions against any party in the Mayberry action at this time," Kentucky Government Retirees filed an open records request for the report.
KGR is a labor organization which advocates on pension issues for members of the Kentucky Employees Retirement System and the State Police Retirement System. It's friends and supporters number 15,500 plus. Most have a direct interest in public pensions.
Characterizing Calcaterra Pollack as its "legal representative," KPPA denied KGR's request, in full, on June 2. KPPA invoked the attorney client privilege and work product doctrine in support of the denial.
Undeterred, KGR turned to Governor Andy Beshear in the hope that he might find a way to dislodge the report.
By letter dated June 3, KGR president Jim Carroll urged the Governor — whose "record of strong support for transparency both as attorney general and governor is a matter of public record" — to review KPPA's denial.
KGR awaits the Governor's response.
On June 2 the Tier 3 Intervenors filed a "Submission re: KRS $1.2 Million Secret Report; Need for Open Proceedings; and Limitations on Use of Secret Report Without Its Public Disclosure" in apparent anticipation of Monday's 1:00 pm status conference in the Franklin Circuit Court.
Once again, the Tier 3 Intervenors petition the court to :
• reject any attempt to utilize the Report to influence judicial proceedings, before the Report is made public, discovery is taken and adversarial proceedings are conducted;
• deny the AG's motion to file the Amended Intervening Complaint; and
• grant the Tier 3 Plaintiffs' motion to intervene.
Meanwhile, the Kentucky Open Government Coalition continues to strongly urge the immediate voluntary disclosure of the Calcaterra Pollack report.
Assuming, for the sake of argument, that the report qualifies for the attorney client privilege, enjoys protection under the work product doctrine — which we are by no means prepared to concede — we remind KPPA that the "privilege" is KPPA's to waive and thereafter voluntarily disclose. Continued secrecy arouses suspicion and brings KPPA into increasing disrepute.
As we stated in our May 25 letter to KPPA:
"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."
Like so many other agencies confronted with potentially inconvenient and embarrassing truths, KPPA must abandoned these claims of exemption, publicly acknowledge the truth, and end the speculation surrounding the report for which the public footed a very sizable bill.
