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Friday, February 24, 2012

Kentucky Cabinet For Health And Family Service's "Utter Failure" To Comply With Open Records Law On Child Abuse Deaths, Forces Judge To Order 2 Years Worth Of More Records Released In 90 Days! Thank You, Judge. Next? BIG Sanctions.

Judge critical of state officials in ordering release of child abuse records
Written by Deborah Yetter

FRANKFORT, KY. — Citing the “utter failure” of state officials to comply with fundamental requirements of the state open records law, Franklin Circuit Judge Phillip Shepherd has ordered the Kentucky Cabinet for Health and Family Services to release two years worth of child abuse records within 90 days.

The order, issued Thursday, involves thousands of pages of documents from about 180 cases of children who died or were seriously injured from abuse or neglect.

It is the latest development in the ongoing legal battle over access to the records between the state Cabinet for Health and Family Services and two state newspapers, The Courier-Journal and the Lexington Herald Leader.

It replaces a prior order from Shepherd that the cabinet must release 1,000 pages of records a week — which the cabinet began doing Jan. 27.

Jon Fleischaker, a lawyer for The Courier-Journal, said the ruling represents a victory for the newspapers — if the state complies and provides records the newspapers have been seeking for more than a year.

“There’s no telling what the cabinet will do,” he said.

Jill Midkiff, a cabinet spokeswoman, said officials with her agency are reviewing the order while continuing to release records.

Shepherd has already ruled such records must be released — and Gov. Steve Beshear announced in November the state intended to cooperate, citing concern over several high-profile child abuse deaths, including that of Amy Dye, a 9-year-old girl fatally bludgeoned last year in her adoptive home.

“Transparency will be the new rule,” Beshear said at a Nov. 29 news conference.

But legal wrangling has continued over the cabinet’s insistence it has the right to delete information from the files beyond what Shepherd said the law allows.

The cabinet last month appealed the dispute to the state Court of Appeals.

Meanwhile, under a previous order from Shepherd, the cabinet has been releasing heavily redacted files at the rate of about 1,000 pages a week for the past four weeks. That represents 15 files.

Shepherd, in Thursday’s order, said a better system is needed.

“It is apparent that the court’s prior ruling on the mechanism for obtaining these documents is not working,” the order said.

Despite being told it could redact only limited information from records it releases — and cite specific reasons for any redactions — the cabinet has failed to do so, his order said.

“The court notes once again the cabinet’s utter failure to comply with the fundamental requirement of the Open Records Act to provide a specific claim of privilege for any material withheld,” the order said.

The cabinet argued in court it is not obligated to release any records while the case is on appeal, but Shepherd rejected that argument. He ruled that the cabinet may appeal the question of whether the records are subject to the open records law if it chooses to do so despite “the governor’s public directive.”

But in the meantime, the cabinet must release all records sought by the newspapers, Shepherd said.

“Such an appeal should not further delay the production of the 180 case files which were originally requested over 15 months ago,” Shepherd’s order said.

Further, it said, the cabinet must cite the reasons for redactions and be prepared to defend them in court after releasing the files.

“The court will conduct a hearing on the dispute and the cabinet will bear the burden of proof to establish an exception under the Open Records Act to support any redaction,” Shepherd’s order said.

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