State appeals ruling that requires release of more child abuse details

Cabinet argues ruling could hinder investigations

vhoneycutt@herald-leader.comJanuary 27, 2012 

Kentucky child-protection officials asked the Kentucky Court of Appeals on Thursday to block a lower court's ruling that limits its ability to remove details from public documents about children who died or nearly died from abuse and neglect.

The Cabinet for Health and Family Services said in a motion to the appeals court that releasing the information "would be detrimental to the public interest and the rule of law."

For example, the cabinet argued that police and prosecutors might stop providing information to child-protection workers if details of their ongoing investigations could be released to the public.

"Witness interviews, forensic evidence, autopsy results and statements against interest made immediately following a tragic event would be prematurely released and impair the ability of county attorneys or commonwealth attorneys to pursue criminal charges against adults who have killed or nearly killed a child," the motion said.

On January 19, Franklin Circuit Judge Phillip Shepherd fined the cabinet more than $16,000 for improperly withholding records on abused children and set rules restricting what information the agency may keep private in such cases. Shepherd also ordered the cabinet to pay more than $57,000 in legal fees incurred by three newspapers challenging the cabinet's refusal to release the records.

He also ordered the state to begin releasing 1,000 pages of such documents a week — starting Friday — to the Lexington Herald-Leader and The (Louisville) Courier-Journal.

Shepherd said 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.

Shepherd 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 its motion Thursday, the cabinet asked the appeals court to grant emergency relief so that it can remove information it wants to keep secret from documents it plans to begin releasing on Friday.

If emergency relief is granted, the cabinet said it will begin releasing documents to the newspapers that "provide as much information as it can consistent with its understanding of controlling law and its position in this case."

Gov. Steve Beshear said in a statement Thursday that Shepherd's ruling was not "protective enough."

"We are not arguing for the right to camouflage the actions of the cabinet or its workers," Beshear said. "... But increased openness has to be implemented in a consistent and thoughtful way that holds the best interests of the child as its paramount priority."

For example, he questioned whether a teacher in a small community would report suspected child abuse if a newspaper might name them as the accuser.

Attorneys for the Herald-Leader and Courier-Journal said they were disappointed with the state's decision to appeal.

"We started this fight against their blanket policy of non-disclosure over two years ago. We've been met with obstacles at every turn in what can only be perceived as an effort to delay," said Kif Skidmore, an attorney representing the Herald-Leader,

"Judge Shepherd issued a well-reasoned opinion that appropriately recognized the compelling public interest in transparency in cases of child fatalities, and we will continue to fight for transparency on the appeal," Skidmore said.

Jon Fleischaker, a lawyer for the Courier-Journal, said he was not surprised by the state's appeal.

"The governor and the cabinet are trying to protect the system as opposed to protecting these kids," Fleischaker said. "... We thought from the beginning that the governor was trying to get it both ways. He wanted to be credited with seeking transparency and yet keeping the vast part of the process secret. And he really can't have it both ways."

Reach Valarie Honeycutt Spears at (859) 231-3409 or 1-800-950-6397, Ext. 3409.

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