By Amye Bensenhaver
Kentucky Open Authorities Coalition
A Franklin Circuit Court docket’s ruling in Glenn Cohen v Kentucky Public Pension Authority is the essential first step on what’s going to probably be an extended path to shining the sunshine of public scrutiny on the secretive Kentucky Public Pension Authority (KPPA).
In Cohen, Choose Phillip Shepherd pierces the bureaucratic veil, rejecting KPPA’s invocation of the attorney-client privilege and work product doctrine to keep away from disclosure of an investigative report ready by New York legislation agency Calcaterra Pollack, LLP, — underneath a contract with KPPA — carried out at taxpayers’ appreciable expense.
“The general public paid $1.2 million for this report. The general public has a proper to know its contents and determine if it bought what it paid for,” Shepherd dominated in an August 25 opinion during which he directed KPPA to make the report “obtainable to [Cohen] and the general public inside 10 days of the entry of this Order.”
Towards the backdrop of Mayberry v KKR — a lawsuit alleging breach of belief and fiduciary obligation filed in December 2017 by public workers who’re members of the Kentucky Retirement Programs in opposition to former hedge fund managers, advisors, and KRS trustees and officers — KPPA contracted with Calcaterra Pollack to conduct the investigation in late 2020.
Illustration from the Kentucky Court docket of Justice
The investigation and report ostensibly targeted on “particular funding actions carried out by the Kentucky Retirement Programs to find out if there are any improper or unlawful actions on the a part of the events concerned.”
Calcaterra Pollack delivered the ultimate report back to KPPA in Might 2021. KPPA thereafter voluntarily shared a replica of the report with the Kentucky Lawyer Common who had lately intervened within the Mayberry case.
Neither the general public nor the defendants within the underlying authorized motion — together with Cohen’s shopper — have been afforded the identical entry.
KPPA blithely shared the report with the legal professional normal however constantly denied open information requests submitted by the Courier Journal, the Lexington Herald-Chief, Kentucky Authorities Retirees — a labor group with 15,500 supporters that advocates on pension points for retired public workers — the Kentucky Open Authorities Coalition, and, in fact, Louisville attorneys representing defendants.
KPPA characterised Calcaterra Pollack as its “authorized consultant” and invoked the attorney-client privilege and work product doctrine in help of those denials. The Lawyer Common additionally denied open information requests for the report.
Rejecting KPPA’s invocation of the attorney-client privilege and work product doctrine, Shepherd unequivocally endorsed the general public’s proper to know, concurrently exposing the pernicious public company observe aimed toward evading public accountability by outsourcing investigations to non-public legislation companies for the aim of erecting everlasting obstacles to public inspection primarily based on specious privilege claims.
Shepherd reasoned:
“Neither the attorney-client privilege nor work product doctrine protects a mere factual file. Furthermore, a compilation of info can’t be ‘funnel[ed]’ via attorneys to be able to ‘confer privilege on in any other case unprivileged information.’
“Merely put, KPPA can neither protect mere info from disclosure nor convert them into supplies that may be shielded from disclosure by participating a legislation agency, at important taxpayer expense, to assemble and summarize such info.”
Shepherd went on to make clear that — however KPPA’s claims on the contrary — he didn’t order disclosure of the report back to the legal professional normal and that KPPA voluntarily did so, thereby waiving any authentic declare of attorney-client privilege and invocation of the work product doctrine.
Alarmingly, albeit not surprisingly, Shepherd expressed concern a few “reluctance to ‘pursue unfavorable info or authorized theories’ [that] might have influenced the KPPA/KRS Investigation.”
“Certainly, in reviewing the KPPA Investigation, the Court docket may see areas during which the report fell wanting the excellent evaluation of ‘improper or unlawful actions’ purportedly sought underneath the contract.
“A full overview of the Report offers rise to questions as as to if the aim and intent of the Report was to completely expose all of the related info (and to find out if the KPPA and its workers made errors), or if the Report was commissioned to cowl up or reduce these errors in an effort to persuade the OAG to not pursue claims that would show embarrassing to the present or former administration of KPPA.”
Putting his belief within the public to kind its personal knowledgeable opinion, Shepherd summarized (in phrases that bear repeating):
“The general public paid $1.2 million {dollars} for this Report. The general public has a proper to know its contents and determine if it bought what it paid for. The Open Data Act requires strict building of any exceptions to public disclosure ‘despite the fact that such examination might trigger inconvenience or embarrassment to public officers or others.’”
