Court slaps Ky for $1M over Child Abuse
records

Finding the public has a right to know about child-abuse deaths and serious injuries, a state Appeals Court panel has issued a forceful ruling in a case brought by the state’s two largest newspapers.

In a major rebuke to state officials who fought to withhold such records, the Appeals Court ruled the Cabinet for Health and Family Services must pay legal costs and penalties of nearly $1 million to The Courier-Journal and Lexington Herald-Leader.

Calling the cabinet’s conduct “egregious,” Appeals Court Judge Irv Maze, who wrote the opinion for the panel, said the case reveals “the culture of secrecy” at the cabinet and “its misguided belief that the Open Records Act is merely an ideal, a suggestion to be taken when it is convenient and flagrantly disregarded when it is not.”

“It’s a terrific ruling, just terrific,” said Jon Fleischaker, who represented The Courier-Journal in the case.  “We hope this puts an end to it.”

The administration of Gov. Matt Bevin on Friday blamed the outcome on his predecessor, Steve Beshear, whose officials denied access to the records in the case that dates back to 2010.

“The court’s opinion is based on a serious coverup during the Beshear administration that has now led to an unfortunate million-dollar liability for the commonwealth’s taxpayers,” Bevin spokeswoman Jessica Ditto said.  “In the Bevin administration, things will be very different – we will hold ourselves accountable and be accessible to the public, particularly regarding the most vulnerable members of society.”

In his opinion, Maze cited the cabinet’s “systematic and categorical disregard for the rule of law” as grounds for upholding penalties of $756,000 against it for refusing to follow the open records law or previous court orders of the trial judge in the case, Franklin Circuit Judge Phillip Shepherd.

The panel also included Judges Jeff Taylor and Janet Stumbo.
Shepherd had sharply criticized the state Cabinet for Health and Family Services for withholding key records in several high-profile child abuse cases in which it had been involved.

One involved the 2011 death of Amy Dye, 9, who was beaten to death in her adoptive home in Todd County.  The other involved the 2009 death of Wayne County toddler Kayden Branham, who died after drinking drain cleaner from a meth lab in a trailer where the child’s teenage parents were staying.

Shepherd at one point found the cabinet “intentionally adopted a legal strategy designated to delay, obstruct and circumvent the court’s ruling,” a finding cited by Maze in his opinion.

Friday’s Appeals Court ruling comes after a legal battle of nearly six years by the newspapers over access to the cabinet’s records in such cases.

It also comes after a similar ruling in December by the same Appeals Court panel, upholding an award of $16,625 in legal costs to the Todd County Standard in a separate case where that newspaper had sought records related to the Amy Dye death.

In that case, the cabinet first ignored the records request from the weekly newspaper in Western Kentucky, then denied having any such records before eventually producing them at the order of Shepherd, who released them.

In the case decided Friday, The Courier-Journal and Herald-Leader had requested two years worth of records of child-abuse death and injuries, totally about 140 cases.

The cabinet initially refused to release any of the records, citing confidentiality.  After a series of rulings by Shepherd in favor of disclosure, it began releasing some heavily redacted material. It eventually began disclosing nearly all material requested by the newspapers.

While the cabinet’s investigations of child-abuse and neglect cases are confidential, federal and state law make an exception when the abuse or neglect results in a death or life-threatening injury to a child.
The Appeals Court did not rule directly on the issue of the cabinet’s duty to release the records, finding the issue to be moot because the cabinet already has begun providing such records upon request, acting on Shepherd’s orders.

But the cabinet also challenged the newspapers’ legal fees of about $300,000 as well as $765,000 in fines.

Taylor concurred with the overall finding but dissented over whether the cabinet should pay the fines as imposed by Shepherd.

Under open records law, an agency may be fined up to $25 per day for every day it “willfully” withholds a public record.

Shepherd, finding that the cabinet had willfully withheld 140 cases, fined it $10 a day for the 540 days he calculated the cabinet had wrongly withheld records from the newspaper for the total of $765,000.

But Taylor, in his dissent, argued the fines should have been calculated by the number of persons requesting them – in this case, the two newspapers – rather than by all 140 cases, which would have resulted in a much lower fine.

The case now returns to Franklin Circuit Court for Shepherd to rule on the issue of the fines and legal fees.