Newspapers file suit for state's child abuse records

Newspapers say new rule circumvents judge's ruling

bestep@herald-leader.comJanuary 28, 2011 

A state agency is improperly blocking access to records about children who die or are severely injured while in the state's care, the state's two largest newspapers have charged in a lawsuit.

The Lexington Herald-Leader and The (Louisville) Courier-Journal filed suit Thursday against the Cabinet for Health and Family Services, which investigates allegations of abuse and neglect concerning children and runs the foster-care system.

The newspapers had sought access to the cabinet's records on a number of cases during the past two years in which children died or were severely injured because of abuse or neglect while under the agency's purview.

The cabinet denied the requests.

The newspapers' complaint challenges that denial, asking a judge to order the cabinet to release the records.

One issue in the case is a new regulation the cabinet put in place this month on an emergency basis.

The rule would limit information about the actions of child protection workers in cases in which children are killed or severely injured because of abuse and neglect.

The cabinet established the rule after Franklin Circuit Judge Phillip Shepherd ordered the agency to release hundreds of pages from its files on a 20-month-old Wayne County boy who died after drinking drain cleaner at a trailer where it was being used to make methamphetamine.

Shepherd's order came in response to a lawsuit the newspapers filed to get access to records on the toddler, Kayden Branham Daniels, and his mother, Alisha Branham, who was 14 at the time. Both had been in foster care and were still being monitored when Kayden died.

Shepherd said there is a legitimate public interest in assessing the cabinet's handling of cases involving child fatalities.

The judge said the cabinet violated state law by turning down the newspapers' requests for records on Kayden and his mother.

Among other things, the records in that case showed the cabinet did not do a required internal review of its actions after the toddler died.

Before Shepherd's ruling in that case, the cabinet routinely denied access to files on child fatalities.

The lawsuit filed Thursday says the cabinet is improperly using the emergency regulation to evade Shepherd's finding that the agency is required to release records on child fatalities.

The complaint, which was filed in Franklin Circuit Court, seeks an injunction barring the state from enforcing the emergency regulation.

"The Herald-Leader strongly believes that the public has the right to know and to evaluate for itself how the state is performing in its vital function of protecting Kentucky's most vulnerable citizens — abused and neglected children," Herald-Leader Editor Peter Baniak said. "The public should be outraged that, despite a clear judge's order that said such information should be public, the state continues to find new ways to keep secret information about cases in which abused and neglected children have died."

Vikki Franklin, spokeswoman for the cabinet, said it was unfortunate that the newspapers decided to file the lawsuit.

Franklin said the newspapers' requests went beyond records on child deaths.

"The denial of the particular records requested was based upon guidance from the U.S. Department of Health and Human Services and applicable state statutes requiring the cabinet to keep information about individuals not involved in a child's fatality confidential," Franklin said in a statement.

The cabinet said in recent responses to the newspapers that federal authorities had given only sketchy guidance on what records it could release on child fatalities.

However, the newspapers argue that Shepherd gave clear guidance on what information the state must release in such cases.

What's more, federal guidelines require the cabinet to disclose "all available facts about specific cases of child abuse or neglect which result in fatalities or near-fatalities," the lawsuit argues.

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