Judge: State withholding too much information about child deaths

bestep@herald-leader.comDecember 22, 2011 

FRANKFORT — The state's proposal to release censored files about children killed or nearly killed as a result of abuse or neglect could result in too much information being withheld from the public, a circuit judge said Wednesday.

Franklin Circuit Judge Phillip Shepherd has ruled in three lawsuits that records in such cases are open to public inspection.

In response to one of those rulings, however, the Cabinet for Health and Family Services proposed to redact a range of information before releasing the files, including, in some cases, the names of children who died and the names of people who allegedly abused children.

The cabinet's plan "would completely undermine the court's order to produce these records" if interpreted too broadly, Shepherd said at a hearing Wednesday.

Shepherd also said the cabinet had redacted too much information from internal reviews of 86 of those death and near-death cases that it released last week to the Lexington Herald-Leader and The (Louisville) Courier-Journal.

The newspapers have been in a two-year court fight with the cabinet — which oversees child protection — to get access to records that would help shed light on how the agency handled cases in which children died or were badly hurt as a result of abuse or neglect.

Shepherd ruled in those lawsuits that those files are open records. However, there has been continuing disagreement over what details in the files may be withheld.

There were two sets of records at issue in the hearing Wednesday.

One was internal reviews. Under state law, when a child with whom the cabinet has had contact dies or nearly dies because of abuse or neglect, the cabinet is supposed to do an internal review. The purpose is to assess how it handled the case and whether improvements can be identified.

When the cabinet gave the newspapers its 86 reviews of deaths and near-deaths in 2009 and 2010, it took out details such as the names of some child fatality victims and the counties where abuse cases happened.

The newspapers argued the deletions were inappropriate.

"We think they have simply violated the court's order," Jon Fleischaker, who represents The Courier-Journal, said at the hearing.

Christina Heavrin, an attorney for the cabinet, said some redactions were based on the fact that the reviews were released without the context of full case files.

But Shepherd said the cabinet had withheld some details it should have released.

He pointed to one case in which the name of a mother whose newborn had tested positive for marijuana was redacted.

There might be a public interest in knowing whether the mother had a long criminal record, Shepherd said, but that would be hard to figure out without her name.

Shepherd ordered the cabinet to give him complete, unaltered copies of the internal reviews so he can decide whether additional information should be released.

The other records discussed at the hearing were the complete files on child death and near-death cases, which would include the reviews but also much more information on caseworkers' involvement with the families.

Kif Skidmore, an attorney for the Herald-Leader, said the state's proposed guidelines for deciding what information to withhold from those files probably would result in far more redactions than would be proper.

"What they have proposed is simply unworkable," Skidmore told Shepherd.

Lawmakers have decided that the public interest in information about the deaths and near-deaths of children outweighs the privacy interests of individuals, Skidmore said.

Heavrin said the protocol was broad, in part because of uncertainty about the contents of all the files it would have to cover.

However, she said the cabinet thought the protocol met the requirements of the state's open records law.

The cabinet also has argued that federal law requires withholding certain information.

Shepherd said the cabinet had jealously enforced its position that such records are private for a long time but noted he had rejected that position in cases involving deaths and near-deaths.

Shepherd expressed concerns that the redaction protocol could result in too much public information being withheld.

He said he would set out a procedure for the cabinet to use in complying with his order to release the records, and establish a mediation process for the cabinet and newspapers to use in resolving disputes over redactions.

Shepherd also said the cabinet could face financial penalties if it insists on making redactions that aren't proper.

"We can do this in a cooperative fashion" he said of releasing the case files, "or we can do it the hard way."

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