Newspapers accuse state of illegally withholding child-death records

By Beth Musgrave — bmusgrave@herald-leader.com

Posted: 7:43pm on Aug 17, 2011; Modified: 10:18pm on Aug 17, 2011

FRANKFORT — A lawyer for Kentucky's two largest newspapers told a Franklin Circuit Court judge Wednesday that the state was "thumbing its nose at the law" by withholding records relating to the deaths of abused and neglected children.

"They are acting illegally and they are doing it in a brazen fashion," said Jon Fleischaker, a lawyer representing the Lexington Herald-Leader and The Courier-Journal of Louisville.

Fleischaker's comments came during a hearing about whether the Cabinet for Health and Family Services, which oversees child protection, must turn over records regarding children who died of abuse and neglect while under the state's care. This is the second time in two years the newspapers have sued the cabinet to get such records.

Cabinet officials said Wednesday there were about 44 cases during the past two years that involved children who died or were nearly killed as a result of abuse and neglect while under the cabinet's supervision.

Meanwhile, a convicted murderer and four anonymous women tried to intervene in the case, saying release of the records would harm a legal appeal or violate privacy rights.

Fayette Commonwealth's Attorney Ray Larson also wrote a letter to Judge Phillip Shepherd expressing concerns about the release of child death documents. Larson said it could prejudice a jury if documents were released about the death of Katelynn Stinnett, a 2-year-old Fayette County girl. Brian Crabtree, who lived with Stinnett's father at the time of her death on Nov. 26, 2008, has been charged with rape and murder.

Shepherd on Wednesday allowed Patrick Watkins to intervene in the case.

Watkins and his wife were sentenced to life in prison in October 2008 for the murder of their daughter Michaela Watkins, 10. The Clark County girl's body was found severely bruised and burned on March 11, 2007, at the Watkinses' apartment. She had more than 77 injuries at the time of her death.

B. Scott West, a lawyer for Watkins, argued that Watkins could be granted a new trial and that releasing the cabinet's documents regarding Michaela could prejudice a jury. The state Supreme Court has overturned part of the case against Watkins but the Supreme Court's decision is not final yet.

Scott White, a Lexington lawyer, also filed a motion to intervene in the case on behalf of four anonymous women who say their privacy rights would be violated if the information requested by the media was made public. White said the four women had been investigated for abuse and neglect of their children.

Fleischaker questioned why the women could file to intervene in the case without telling the court who they were. There is no provision in the law that would allow the women to do so, he said.

White argued that their privacy rights would be violated if he revealed their identities before Shepherd ruled on whether they had a right to intervene. Shepherd said he would rule soon on whether the women could file to intervene as "Jane Does."

Fleischaker also argued Wednesday that the cabinet was purposely dragging its feet on releasing records regarding child deaths, despite a previous order by Shepherd that declared similar documents were public. The cabinet has engaged in a series of moves to thwart the media's attempts to get those records, lawyers for the media have argued.

Brent Irvin, a lawyer for the cabinet, said the cabinet was not trying to circumvent the law. The cabinet still thinks federal law prohibits it from releasing some of the records.

If the cabinet releases information that the U.S. Department of Health and Human Services says is private, the state fears it could lose federal child protection funding, Irvin said.

Shepherd asked whether any state had ever lost federal funding because of the release of information about child deaths. Irvin said he was not sure.

Both newspapers sued the cabinet in 2010 to get access to records regarding the death of Kayden Branham, a 20-month-old Wayne County toddler who died after drinking drain cleaner used to make methamphetamine. He and his teen mother had been under cabinet supervision before his death.

After Shepherd made public the documents regarding Branham's death, both newspapers filed requests to get records about other children who have died of abuse and neglect while under the cabinet's care.

The cabinet denied both requests and then filed an emergency state regulation that limited the amount of information it could release about child deaths. The media sued the cabinet again in state court in January, but the cabinet had the case transferred to federal court. A federal court judge later ruled that the case involved state law, not federal law, and returned it to Shepherd's court.

Fleischaker argued that the issues before the court Wednesday were the same as those in the case involving Kayden Branham. The cabinet did not appeal Shepherd's previous ruling, Fleischaker noted.

"They don't care what the law is," Fleischaker said of the cabinet.

Irvin countered that there are still unanswered questions about what should be released to the public.

Shepherd released some of the information involving Kayden's death after he reviewed the file, but he did not tell the cabinet what information he chose not to release, Irvin said.

Shepherd said Wednesday that he released all of the information about Kayden Branham and his mother. The only records he did not release were about another minor related to Kayden Bran ham's mother.

Source: http://www.kentucky.com/2011/08/17/1849003/newspapers-accuse-state-of-illegally.html