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Monday, January 23, 2012

Editorial: Judge Shepherd's Ruling.

Editorial | Judge Shepherd's ruling

John Emerich Edward Dalberg Acton, better known as Lord Acton, and Phillip Shepherd, better known as Franklin Circuit Judge Shepherd, never met. One was a member of 19th Century English nobility; the other currently presides in a courtroom in Frankfort, Ky. Despite those differences, they share a great deal when it comes to their opinions — philosophical or legal — about the corrosive nature of secrecy.

Lord Acton is most famous saying that “absolute power corrupts absolutely,” but he was known to expound on all manner of topics, including: “Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.”

He wasn’t writing about the reflexive, over-reaching secrecy practiced by Kentucky’s Cabinet for Health and Family Services, as Judge Shepherd has in a recent series of strongly worded rulings against the state government agency charged with protecting children, but he could have been.

In legal wrangles stretching over two years, Judge Shepherd has channeled Lord Acton in his statements (and three rulings) involving openness over secrecy. The statements have come as three newspapers — The Courier-Journal, the Lexington Herald-Leader and the Todd County Standard — sought access to cabinet records relating to the deaths or near deaths of children due to child abuse or neglect, only to be stymied and stonewalled by state officials who balked despite court orders.

“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 Shepherd has said.

In ordering the release of records pertaining to 9-year-old Amy Dye of Western Kentucky, who was beaten to death by her adoptive brother after living in a home approved by the state, the judge said, “This case presents a tragic example of the potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny.”

Last week, Judge Shepherd made two rulings about the records cases that further upheld the spirit and letter of the state’s open records law, which is in place to check government power and to protect the people.

He ordered the state to pay $16,550 in fines and $56,663 in legal fees to the papers for their drawn-out court fight with the cabinet.

He also said the state could not continue to heavily redact the information from the records they had started to release (Judge Shepherd noted the state was still trying “to blanket the operation of the child welfare system under a veil of secrecy”), and he outlined the limited information that could be removed before the records are made public.

In the Todd County Standard ruling, Judge Shepherd found that the cabinet willfully and intentionally violated the open records law with its attempts at “misdirection and obfuscation designed to prevent public disclosure” of the records requested by the newspaper.

In the Courier-Journal and Lexington Herald-Leader decision, the judge wrote, “In cases involving a death or near death of a child who the state agency has been charged with protecting, full public disclosure of such information is the rule. Full disclosure is often necessary to prevent such tragedies from recurring. The cabinet’s proposed protocol (of what information to release and withhold) allows the cabinet to keep a vast amount of this information private, without balancing the public’s right to know, the need to hold the cabinet accountable, and the necessity of policy changes to prevent such outcomes in the future.”

In ruling that the state must pay the costs of the legal battle with the news organizations, the judge noted the cabinet’s “intractable and unyielding” stance on the records, its unwillingness to modify its “policy of shielding these documents from public scrutiny without a protracted legal struggle,” its “legal strategy of protracting, delaying and subverting the implementation of the prior rulings of this court,” and the state law that authorizes the court to “award attorneys’ fees and costs to parties who successfully challenge the state’s assertion of secrecy.”

The judge’s continuing defense of greater openness over secrecy — and of the people’s right to know what their government is doing — ought to resonate with every citizen and taxpayer of Kentucky. After all, they have ended up paying for the cabinet’s illegal withholding of public records, and they are living with the consequences of the blanket of secrecy the cabinet is fighting to keep.

The defense of openness over secrecy also should be taken up by legislators who are considering several bills involving these issues and who should flatly reject any attempt to hobble or compromise the state’s open records act.

Though they come from different times and different places, Lord Acton’s “discussion and publicity” and Judge Shepherd’s “full public disclosure” are abiding tools in the defense of a free society.



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