Yesterday's long Franklin Circuit Court status conference in the Mayberry v KKR case was short on discussion of the $1.2 million Calcaterra Pollack report.
In spite of the Tier 3 movants' continuing efforts to focus attention on the Kentucky Public Pensions Authority's controversial decision to deny the public access to the report, arguments were limited to the Attorney General's motion to file an amended complaint and the Tier 3 movants' motion to intervene in the case. Judge Phillip Shepherd granted the AG's motion and took the Tier 3 movants' motion under submission, indicating that he would issue a ruling soon.
But the issue of public access to the Calcaterra Pollack 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" is far from dead.
In the course of the status conference, counsel for KPPA acknowledged that on May 26 the board of trustees voted not to intervene in the Mayberry case or to pursue independent legal action.
Shortly after the status conference concluded, reporters for the Courier Journal and the Herald-Leader questioned KPPA's reliance on the preluminary documents exceptions to the open records law to deny the newspapers' open records requests for the Calcaterra Pollack report.
https://twitter.com/joesonka/status/1401955208557649922?s=11
https://twitter.com/joesonka/status/1401980029991538696?s=21
https://twitter.com/bgpolitics/status/1401971907205947406?s=11
https://twitter.com/bgpolitics/status/1401958518836584474?s=11
This was also the basis, in part, for KPPA's denial of the Kentucky Open Government Coalition's April 20 request for the report.
Only one open records request was filed after the May 26 board action. That request was filed by Kentucky Government Retirees whose executive director, Jim Carroll, has closely followed the Mayberry litigation. Attempting to call attention to this development, Carroll tweeted on May 26:
"Vote by KPPA board: 'The KPPA does not intervene in the attorney general's amended complaint AG complaint and the Mayberry action and KPPA does not file any actions against any party in the Mayberry actions at this time.'"
https://twitter.com/jimcarroll19/status/1397640636312997898?s=11
The Kentucky Open Government Coalition replied:
"Final action! There goes the 'preliminary documents' defense under the holding in University of Kentucky v The Kernel. In the final analysis, nothing in the Calcaterra report moves them from dead center. That was 1.2 million taxpayer dollars well spent."
KPPA's denial of KGR's request centered on the attorney client privilege and work product doctrine — though KPPA left the "preliminary documents" door ajar by hinting at the possibility of future action.
Whatever the merits of the arguments KPPA advances to avoid disclosure of the $1.2 million taxpayer funded Calcaterra Pollack report, KPPA is deaf to demands that it release the report. This includes the Kentucky Open Government Coalition's May 25 demand and KGR's still unanswered request to Governor Andy Beshear for review of KPPA's refusal to release the report.
(An open records appeal to the Kentucky Attorney General seems futile since the AG himself has denied open records requests to his office for the Calcaterra Pollack report released to him on May 13. A direct open records appeal to the Franklin Circuit Court remains an option for a well-funded requester denied access to the report.)
What KPPA cannot ignore is requests for records related to the Calcaterra Pollack report—other than the report itself—that might shed some light on how the contract for the report was procured and what services have been rendered under the contract.
On Friday, the Kentucky Open Government Coalition submitted requests to KPPA for Calcaterra Pollack's billing statements/invoices since it undertook its investigation in late 2020. We await KPPA's fulfillment of this request since caselaw firmly establishes our right of access.
https://caselaw.findlaw.com/ky-court-of-appeals/1329473.html
Yesterday, we filed additional open records requests for procurement records and the minutes of Kentucky Retirement Systems meetings at which the need for an investigation was discussed, a request for proposals was voted on, and/or Calcaterra Pollock's selection was approved. The law also recognizes the public's right of access to these records or, if they do not exist, an explanation for their nonexistence.
Eplion v. Burchett, NO. 2009-CA-001741-MR (Ky. Ct. App. Feb. 16, 2012)
https://casetext.com/case/eplion-v-burchett-1
If KPPA insists on refusing to release the whole Calcaterra Pollack "pie," we will continue to "nibble around the edges" for a better understanding of what taxpayers got for their $1.2 million.
