Judge orders Kentucky to release records on child-abuse deaths

Written by Deborah Yetter

For the second time in 18 months, a Franklin Circuit Court judge has ordered the state to release records pertaining to child-abuse deaths and serious injuries, finding that there is “no legal basis” for withholding them.

“The court must conclude that the (Cabinet for Health and Family Services) is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law,” Judge Phillip Shepherd said in his ruling, issued Thursday.

The decision comes after a lengthy court fight by The Courier-Journal and the Lexington Herald-Leader to obtain the records — and more than a year after Shepherd first ruled that the cabinet must disclose the material.

After that decision, the cabinet released some information about the death of a Wayne County toddler who drank drain cleaner at an alleged methamphetamine laboratory. But the cabinet refused to provide the newspapers with information about other child-abuse deaths.

A 2009 Courier-Journal investigation found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.

Thursday’s ruling is a major open-records victory for the newspapers and the public because it forces the cabinet to disclose details of how well the state does its job of protecting children from severe abuse, said Jon Fleischaker, a lawyer for The Courier-Journal.

“It’s about time the cabinet recognizes that it is not above the law,” Fleischaker said. “It has to comply with the mandate of state and federal law. This is not a difficult issue.”

Cabinet officials released a brief statement Thursday saying that they are reviewing the ruling. They gave no indication when they would release the records.

Fleischaker said the cabinet could appeal but added that he doubts it would succeed because Shepherd found for the newspapers in the virtually identical case last year. The cabinet did not appeal that ruling, making the decision final.

Fleischaker called on Gov. Steve Beshear to direct officials at the cabinet to comply with the court’s ruling.

“We now have a judge talking about the inability of the cabinet to understand its legal obligations,” Flesichaker said. “Maybe the governor needs to step in. He probably should have stepped in before this.”

Beshear spokeswoman Kerri Richardson didn’t respond to a question about whether Beshear will get involved. She said in a statement only that the cabinet is reviewing the decision.

Terry Brooks, executive director of Kentucky Youth Advocates, said Thursday’s ruling has important ramifications.

“It’s not just a win for the press,” Brooks said. “It’s a win for kids and for citizens who are taking a look at this issue.”

In his opinion, Shepherd had harsh words for cabinet officials who have consistently fought releasing material the newpapers sought after several highly publicized child abuse or neglect deaths, including the 2009 case of the Wayne County toddler.

His order said the cabinet “misinterpreted” state law and “continues to flatly ignore” provisions that require it to disclose the records.

“The release of these records will help to keep the cabinet accountable to prevent future tragedies and to answer to taxpayers who fund the cabinet,” it said.

State law — conforming to federal law — says such records may be “publicly disclosed” in cases in which a child was killed or severely injured from abuse or neglect if the cabinet had involvement with the family. But in recent years, cabinet officials have refused to release such material, citing the need for confidentiality.

Shepherd’s order noted the “exact issues” in the current case were already addressed in the initial lawsuit filed by the newpapers in 2009.

In that case, Shepherd ruled in May 2010 that the cabinet must release records related to the death of Kayden Daniels, the 20-month-old Wayne County boy who died at the home of his teenage parents, the site of the alleged meth lab. Both the child and his mother, then 14, had been under supervision of the cabinet before the death.

Records sought by the newspapers included a “fatality report” that the cabinet is required by law to conduct, examining the circumstances of the child’s death and actions of cabinet officials involved with the family. After Shepherd ordered the cabinet to release the report, agency officials acknowledged they had never conducted the review or produced such a report.

Shepherd ordered the release of other cabinet records in the case, such as documents relatging to state contacts with the family, the cabinet disclosed.

But it refused subsequent requests for information about other child-abuse deaths. That prompted the newspapers to file a second lawsuit in January, asking Shepherd to order the cabinet to comply with his previous order.

Shepherd, in Thursday’s ruling, also struck down “emergency regulations” that cabinet officials enacted in January seeking to sharply restrict the information it must release about child deaths and injuries. Shepherd’s order found no basis in state law for the regulations.

Because the newspapers had requested records related to child deaths for the past several years, such records are likely to be voluminous and could impose a “substantial administrative burden on the cabinet,” Shepherd’s order said.

For that reason, Shepherd ordered the cabinet to meet with the newspapers within the next 10 days to try to reach an agreement on the “orderly and timely production of the records.”

If the parties can’t agree, Shepherd’s order said he will hold a hearing on the matter and spell out the “time, place and manner of production.”

Shepherd also reserved a ruling on the newspapers’ request for attorneys fees until the other issues are resolved.

He already has awarded the newspapers $20,700 in legal costs from the first round of litigation. The cabinet has appealed that order.

Fleischaker called on Gov. Steve Beshear to direct officials at the cabinet to comply with the court’s ruling.

“We now have a judge talking about the inability of the cabinet to understand its legal obligations,” Flesichaker said. “Maybe the governor needs to step in. He probably should have stepped in before this.”

Beshear spokeswoman Kerri Richardson didn’t respond to a question about whether Beshear will get involved. She said in a statement only that the cabinet is reviewing the decision.

Terry Brooks, executive director of Kentucky Youth Advocates, said Thursday’s ruling has important ramifications.

“It’s not just a win for the press,” Brooks said. “It’s a win for kids and for citizens who are taking a look at this issue.”

In his opinion, Shepherd had harsh words for cabinet officials who have consistently fought releasing material the newpapers sought after several highly publicized child abuse or neglect deaths, including the 2009 case of the Wayne County toddler.

His order said the cabinet “misinterpreted” state law and “continues to flatly ignore” provisions that require it to disclose the records.

“The release of these records will help to keep the cabinet accountable to prevent future tragedies and to answer to taxpayers who fund the cabinet,” it said.

State law — conforming to federal law — says such records may be “publicly disclosed” in cases in which a child was killed or severely injured from abuse or neglect if the cabinet had involvement with the family. But in recent years, cabinet officials have refused to release such material, citing the need for confidentiality.

Shepherd’s order noted the “exact issues” in the current case were already addressed in the initial lawsuit filed by the newpapers in 2009.

In that case, Shepherd ruled in May 2010 that the cabinet must release records related to the death of Kayden Daniels, the 20-month-old Wayne County boy who died at the home of his teenage parents, the site of the alleged meth lab. Both the child and his mother, then 14, had been under supervision of the cabinet before the death.

Records sought by the newspapers included a “fatality report” that the cabinet is required by law to conduct, examining the circumstances of the child’s death and actions of cabinet officials involved with the family. After Shepherd ordered the cabinet to release the report, agency officials acknowledged they had never conducted the review or produced such a report.

Shepherd ordered the release of other cabinet records in the case, such as documents relatging to state contacts with the family, the cabinet disclosed.

But it refused subsequent requests for information about other child-abuse deaths. That prompted the newspapers to file a second lawsuit in January, asking Shepherd to order the cabinet to comply with his previous order.

Shepherd, in Thursday’s ruling, also struck down “emergency regulations” that cabinet officials enacted in January seeking to sharply restrict the information it must release about child deaths and injuries. Shepherd’s order found no basis in state law for the regulations.

Because the newspapers had requested records related to child deaths for the past several years, such records are likely to be voluminous and could impose a “substantial administrative burden on the cabinet,” Shepherd’s order said.

For that reason, Shepherd ordered the cabinet to meet with the newspapers within the next 10 days to try to reach an agreement on the “orderly and timely production of the records.”

If the parties can’t agree, Shepherd’s order said he will hold a hearing on the matter and spell out the “time, place and manner of production.”

Shepherd also reserved a ruling on the newspapers’ request for attorneys fees until the other issues are resolved.

He already has awarded the newspapers $20,700 in legal costs from the first round of litigation. The cabinet has appealed that order.

Source http://www.courier-journal.com/article/20111103/NEWS01/311030033/Judge-orders-Kentucky-release-records-child-abuse-deaths?odyssey=nav%7Chead