Rejecting or respecting the public’s right to know: the KRS pension report versus the House sexual harassment report

COG2On December 1 House leaders released the investigative report into sexual harassment claims against Jeff Hoover and other legislators first brought to the public’s attention one month earlier. The report was prepared at the House’s request by Louisville law firm Middleton and Reutlinger.

Owing to the refusal of some legislative staffers to cooperate, and the firm’s inability to obtain critical documentation, the report was inconclusive.  Accordingly, House leaders turned the investigation over to the Legislative Ethics Commission “to give the people of Kentucky a full and complete picture of what happened.”

In contrast to its apparent disdain for the policy that supports the Open Meetings Act — at least with respect to discussions of pension reform — the House demonstrated respect for the policy that supports the Open Records Act by releasing the report. That policy recognizes that “free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others.”

Its decision to do so stands in marked contrast to the administration’s rejection of the public’s right to examine the report on how much its pension reform bill would cost taxpayers and how it would impact pension plans within the Kentucky Retirement Systems prepared by the Kentucky Retirement Systems’ “reputable, qualified and established actuarial firm,” Gabriel, Roeder, Smith & Co.

The Bluegrass Institute Center for Open Government questioned the decision to withhold this report in a November 18 blog, examining whether existing legal authority supports that decision.

Our conclusion?  Because the report is an analysis of “the cost and impact of the administration’s pension plan” — a plan that, “although subject to legislative revision,  is final as to the administration,” — the report analyzing it is a post-decisional, not a pre-decisional, record that is in no way preliminary as described in KRS 61.878(1)(j).” Nor, we reasoned, is the report a “draft” as described  in KRS 61.878(1)(i) simply because it may reach unwelcomed conclusions and is “clearly marked as a draft.”

Because we knew of no legally defensible basis for denying the public access to the GRS report, the Center for Open Government submitted an open records request for the report — along with a copy of the Kentucky Retirement Systems’ contract with GRS — on November 15.

KRS responded to the latter part of our request by producing a copy of the contract but failed to address our request for the GRS report. Upon inquiry, we were advised that “[t]he only documents purportedly responsive at the time of [our] request were under revisions and squarely fell within the commonly phrased ‘preliminary exceptions’ rule exempting production under the Act pursuant to KRS 61.878(1)(i) and (j).”

Agency counsel explained that “at the time of the request, Kentucky Retirement Systems was under the good faith belief that a final actuarial analysis would be available in the very immediate future and uploaded directly onto [its] website. . . .This did not occur because of revisions to the draft, and, to date, Kentucky Retirement Systems does not have in its possession, custody or control a finalized actuarial analysis for public release.”

The final sentence of this paragraph was most telling. Counsel advised that “[f]uture requests for these records should be directed to the Office of the State Budget Director.”

And there it is.

The Kentucky Retirement Systems was apparently prepared to post the report upon receipt, but one member of its Board of Trustees, State Budget Director John Chilton, stood in its way. Indeed, it was Chilton who publicly announced that the report would only be released  “whenever the legislature decides to file” a final bill.

Chilton does not have unilateral authority to deny the public access to the GRS report, and KRS is foreclosed from ceding its open records decision making authority on the report, or any other record that it prepares, owns, uses, possesses or retains, to a single trustee. KRS cannot abdicate its statutorily assigned duties by disclaiming possession, custody and control of the report – inasmuch as it “owns” and has or will “use” the report. The GRS report is a KRS public record.

The GRS report is also a public record of the Office of State Budget Director insofar as that office “possesses” and “retains” a copy of the report. That office may – improperly in our view – deny a request submitted to it for the copy of the report in its custody and control, and should be prepared to defend its position in the event of a legal challenge. But the report is not a record of the Office of the State Budget Director exclusively,  and Budget Director Chilton cannot usurp the role of KRS official records custodian by requiring all requests for the report to be directed to his office.

To its credit, the House released the sexual harassment report – characterized in at least one article as “preliminary” – though the investigation was inconclusive and was therefore turned over to the Legislative Ethics Commission for further investigation and action.  Under standard open records analysis, the House might have argued successfully for nondisclosure of the report while the investigation proceeds and before final action is taken.

But the House recognized that “free and open examination of public records is in the public interest” and that the exceptions it might have invoked, KRS 61.878(1)(i) and (j), “are a shield and not a shackle.”

As noted, Chilton’s argument for nondisclosure of the GRS report is far weaker. Moreover, the public interest supporting disclosure of the GRS report is at least equal to – if not greater than – the public interest supporting disclosure of the sexual harassment report. Although the public has a right to know when its public servants breach the public trust by engaging in improper or illegal conduct, every citizen of Kentucky will feel the effects of the pension bill whatever it looks like in its final form.

It is far better to respect the citizens’ right to examine the “reputable, qualified and established actuarial firm’s” analysis of the administration’s pension reform bill,  “even though such examination may cause inconvenience or embarrassment to public officials or others,” than to reject that right.