Judge fines state agency $16,000 for withholding child-abuse records

judge: child-welfare system wrapped in 'veil of secrecy'

bestep@herald-leader.combmusgrave@herald-leader.comJanuary 20, 2012 

A judge has fined the state Cabinet for Health and Family Services more than $16,000 for improperly withholding records on children who died or were hurt because of abuse and neglect, and he set rules limiting what information the agency may keep private in such cases.

The cabinet willfully withheld public information from three newspapers, Franklin Circuit Judge Phillip Shepherd said in rulings Thursday.

The agency continued its efforts to wrap the child-welfare system under a "veil of secrecy" even after he'd ruled that files on child deaths and near-deaths should be public, Shepherd said in a strongly worded memorandum.

He said the public has an overriding interest in access to information that can shed light on how the cabinet performed its job of protecting children.

"In cases in which there has been a death or near-death of a child, the balance of the equities weighs more heavily in favor of public disclosure because of the urgent need ... to expose the cabinet's actions to public scrutiny when its actions or failure to act has life or death consequences," Shepherd wrote.

Shepherd entered his orders Thursday in two lawsuits, one involving the Lexington Herald-Leader and The Courier-Journal of Louisville, and the other the Todd County Standard.

The papers had sued the cabinet seeking access to records of children the cabinet had contact with before they were killed or badly hurt as a result of abuse or neglect.

Shepherd also ordered the cabinet to pay a total of more than $57,000 in legal fees the papers incurred in challenging the cabinet's refusal to release the records.

Peter Baniak, editor of the Lexington Herald-Leader, said Shepherd has ruled consistently that records on child death and near-death cases should be open.

"We think the message could not be clearer that it's time for the cabinet to comply with the judge's multiple rulings, to truly open these records and stop what has been a clear pattern of delay and searching for loopholes," Baniak said.

Cabinet Secretary Janie Miller said the agency was "weighing its options" on the order to pay penalties and attorney fees, and other issues.

Miller said the cabinet was pleased that Shepherd said it may withhold names of children injured in abuse and neglect cases, and the names of private citizens who report suspected abuse.

"The judge recognized that the public's interest in determining whether the cabinet did its job is not compromised by respecting the confidentiality of those children who survived grievous injury and those citizens who come forward to report abuse or neglect," Miller said in a statement.

Weighed against efforts to protect children from invasions of privacy, it was "well worth the price," Miller said.

The cabinet had long refused to release details of cases involving deaths and injuries of children under its purview. However, Shepherd ruled in a separate case in 2010 that those files were public under the state open-records law.

The Lexington and Louisville newspapers sought access to such files after that ruling, but the cabinet again refused to release them, leading to a new lawsuit by the papers. The Todd County Standard filed a separate lawsuit against the cabinet seeking access to records involving 9-year-old Amy Dye, beaten to death by her adoptive brother in February.

Shepherd said the cabinet took actions that prolonged the litigation, and that it tried to subvert his earlier ruling declaring the record public.

He also said the cabinet misled the Todd County paper, saying it had no records on Amy when in fact it did.

Shepherd ruled again in November that records in child death and near-death cases are public.

In response, the cabinet in December released its internal reviews of the deaths and near-deaths of 90 children in 2009 and 2010, but a good deal of information in the reviews was blocked out.

The cabinet also proposed to redact broad categories of information from larger case files — which contain the internal reviews — that Shepherd ordered released.

Shepherd ruled Friday that the cabinet withheld too much information from the internal reviews.

The judge ruled that the cabinet may redact only the names of child victims who are hurt but don't die, the names of private citizens who report suspected abuse, the names of minor siblings of victims and the names of minor perpetrators.

On a separate front, a cabinet official cautioned lawmakers — who are considering the issue of transparency in abuse and neglect cases — about releasing too much information.

Teresa James, the acting commissioner for the Department for Community Based Services, said the cabinet does not oppose holding social workers and other adults accountable for missteps in a child-protection case. But releasing information about a child could have damaging effects, James told the House Health and Welfare Committee.

James said the cabinet thinks that releasing such information could cause people to not report suspected abuse because of a concern about their identities becoming public.

But lawyers for the media stressed that the information the newspapers want is about children who have died. Deleting critical information would make it impossible or difficult for the public to know whether social workers were doing their jobs and had fully investigated previous incidents of abuse or neglect, lawyers for the media have said.

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