Press one of the expand buttons to see the full text of an article. Later press collapse to revert to the original form. The buttons below expand or collapse all articles.



Two Years of Defying the Law in Kentucky

December 24, 2013 permalink

Kentucky has a law requiring disclosure of records in cases of child deaths. Years of foot-dragging by the state agency responsible for child protection has caused a judge to fine the agency $756,000. It sounds like a macho exercise of judicial power, but will have no effect. The money will be deducted from one account in the state treasury and added to another. No real change, and there will be no real disclosure. As we predicted nearly two years ago, there will be no disclosure unless the governor decides to invoke executive action.



Kentucky cabinet penalized $756,000 for 'willfully circumventing' child-abuse open records ruling, judge says

Amy Dye
Amy Dye


The Kentucky Cabinet for Health and Family Services was ordered to:

  • Produce names, addresses and other redacted information in case files along with prior reports of abuse and neglect, photographs and documents that were previously declared unrelated or duplicative.
  • Produce certain family and juvenile court records and records that were allegedly exempt under health care privacy laws.
  • Provide all materials in the files that would have been accessible to investigators.
  • Pay a $756,000 penalty.
  • Plaintiff’s are allowed to request attorney fees, which are expected to exceed $200,000.

FRANKFORT, KY. — The Kentucky Cabinet for Health and Family Services must pay a $756,000 penalty after it “willfully circumvented” open-records laws by failing to fully release records on child abuse fatalities and near deaths, according to a scathing court order issued Monday.

Franklin Circuit Judge Phillip Shepherd said the cabinet made a “mockery” of Kentucky’s Open Records Act by maintaining that documents — including dozens already in the public domain, such as reports that contain the identities of convicted child abusers — remain confidential.

His 56-page ruling orders the cabinet to pay statutory penalties and produce information it has withheld, arguing that the cabinet has demonstrated an unwillingness to comply with the law without “significant” court sanctions. The plaintiffs — The Courier-Journal and Lexington Herald-Leader — are also allowed to seek attorney fees.

The files are subject to open records law “to ensure both the cabinet and the public do everything possible to prevent the repeat of such tragedies in the future,” Shepherd wrote. “There can be no effective prevention when there is no public examination of the underlying facts.”

For nearly three years, The Courier-Journal and Herald-Leader have battled to obtain cases files in which children who were being monitored by the state died or nearly died from abuse or neglect.

The Courier-Journal requested the records to examine how state social services workers were handling those cases in the wake of reports that showed roughly 30 Kentucky children die each year of abuse and neglect, ranking the state among the highest in the nation in its rate of deaths.

Courier-Journal lawyer Jon Fleischaker called Monday’s order a “tremendous victory” and predicted that the combined attorney fees for both newspapers will exceed $200,000. He said the damages will likely be divided between the two newspapers.

“I have never seen a case that more warrants penalties,” Fleischaker said. “Hopefully this will send a message to both the cabinet and government in general ... that the open-records law means what it says.”

Gov. Steve Beshear’s office deferred all comment to the cabinet, which acknowledged receipt of the order but also refused comment. The cabinet has the right to appeal after the court enters a final judgment, which is expected in January.

While cabinet officials have turned over more than 20,000 documents related to scores of child deaths in Kentucky, they redacted details such as the names of perpetrators — even those convicted in open court or identified in police news releases. The cabinet also adopted emergency rules in an attempt to evade orders to disclose child abuse information, Shepherd said.

The cabinet has argued that it was following state and federal laws by protecting confidentiality in such cases.

But Shepherd said the cabinet clearly viewed the open-records law as “an obstacle to be circumvented, rather than a law mandating compliance” and argued that the redaction policy has continued a “veil of secrecy” in abuse cases.

He cited the case of a prematurely born Louisville infant, Rafe Calvert, who was found dead on an adult-sized pillow in his bassinet in 2010.

The cabinet originally ruled his death to be a result of medical neglect by his parents, who had missed numerous medical appointments and stopped using supplemental oxygen for the baby without a doctor’s authorization. But 3½ years later, the cabinet reclassified Rafe’s fatality as something other than medical neglect.

The judge also cited the case of Amy Dye, a 9-year-old Western Kentucky girl fatally bludgeoned in her adoptive home after state social service officials ignored a series of abuse complaints from school officials.

Source: Louisville Courier-Journal

Addendum: The judge has supplemented his order with an award of $301,000 to cover the legal bills of the newspapers.



Judge: State must pay newspapers $301,000 to cover legal bills in child-abuse records dispute

Phillip Shepherd
Franklin Circuit Judge Phillip Shepherd

The state must pay $301,783 to Kentucky's two largest newspapers to cover their attorneys' fees in a court fight over records about children killed or badly hurt from child abuse, a judge ruled Tuesday.

Franklin Circuit Judge Phillip Shepherd also refused to rescind his earlier order for the Cabinet for Health and Family Services to pay a fine of $756,000 for willfully withholding public records from the Lexington Herald-Leader and The Courier-Journal of Louisville.

The cabinet is "reviewing" Shepherd's order, spokeswoman Jill Midkiff said Tuesday. She declined to comment further about the order, which could be appealed.

Shepherd strongly criticized the cabinet, saying its actions dragged out the case, which "vastly increased" what it must pay.

Shepherd said the cabinet refused to comply with the state's open-records law; sought unjustified emergency regulations to shield files; pursued unsuccessful attempts to switch the case to federal court and appeal one of his rulings; and repeatedly failed to comply with instructions on releasing documents.

"The record in this case vividly documents the cabinet's willful and unyielding determination to shield its conduct from the public scrutiny" required by state law, Shepherd said in the ruling.

Of the legal fees Shepherd ordered the cabinet to pay, $72,896 is for the Herald-Leader's legal bills and $228,887 is for The Courier-Journal's bills during the long-running litigation.

"If just a fraction of the energy spent fighting this open-records case was devoted instead to shining a light on child abuse, we might make some progress in preventing further tragedies," Kif Skidmore, an attorney for the Herald-Leader, said after Shepherd's ruling.

The cabinet has withheld "massive amounts" of information from the files sought by the newspapers, without the required examination of whether the redactions were justified or proper, Shepherd said.

Cabinet attorneys and officials have argued that their aim is to protect vulnerable children and families, and they have cited a concern that releasing certain information about deaths and near-deaths could discourage people from reporting suspected abuse.

In his order, Shepherd countered that the cabinet's conduct in the cases at issue shows that the "fortress of secrecy" it has built "is consistently used to cover up the cabinet's own malfeasance and its failure to protect our most vulnerable children."

Shepherd said the cabinet has made important improvements under current Secretary Audrey Haynes, but the public can't adequately understand breakdowns in child protection if the agency remains shrouded in secrecy.

"The record in this case demonstrates that such preventable tragedies will continue to occur as long as the Cabinet's conduct in child fatality cases remains effectively shielded from public scrutiny," the judge wrote.

Shepherd said in his order that he is mindful that the cabinet will have to pay the fine and attorney fees from public funds, but he concluded that it's the only way to secure justice in a case in which some of the cabinet's acts have been an "extraordinary departure from customary litigation."

The cabinet has already paid the newspapers more than $50,000 to cover their legal bills in an earlier related lawsuit over child-abuse records.

Source: Lexington Herald-Leader