Judge criticizes Beshear for fighting release of child abuse death records

bestep@herald-leader.comFebruary 7, 2012 

A Western Kentucky judge criticized Gov. Steve Beshear in a newspaper commentary published this week for fighting full disclosure of child-abuse death records.

Without the records, the public can't know whether the state properly protects children in abuse and neglect cases, Circuit Judge Tyler Gill wrote in a commentary provided to several newspapers.

State laws on confidentiality in child-abuse and other cases are used more to hide "state incompetence or misconduct" than to protect citizens, Gill wrote. "While we can always find some downside to open government, the consequences of government secrecy are far worse."

Gill, who is circuit judge for Todd and Logan counties, handled the case of Amy Dye, 9, who was beaten to death last year by her 17-year-old adoptive brother.

The Cabinet for Health and Family Services, whose duties include investigating reports of child abuse and neglect, did not properly look into concerns that Amy was being abused at home, another judge said in a court ruling.

"The publicity surrounding recent tragic deaths of children in Kentucky, and the now public shenanigans of the cabinet, caught lying about what it knew and when it knew it, have triggered a rare public anger," Gill wrote.

Gill's commentary was in response to one last week by Beshear about a court fight over child abuse records between the cabinet and Kentucky's two largest newspapers. And it comes as lawmakers debate ordering greater openness in cabinet records and consider whether to set up an independent panel to review child deaths from abuse and neglect.

The Lexington Herald-Leader and The Courier-Journal in Louisville sued the cabinet last year to get records about children who died as a result of abuse or neglect.

The cabinet had long refused to make those files public. However, Franklin Circuit Judge Phillip Shepherd has ruled in three separate cases that such files must be released.

Shepherd said that in cases of children killed or badly hurt, the public has a legitimate, overriding interest in access to information that could show how the cabinet performed its job of protecting children.

Under Shepherd's ruling, the cabinet has released internal reviews of 85 cases in which children died or were hurt in 2009 and 2010, and it has started releasing more extensive case files in those and other cases.

Documents released so far have shown that the cabinet sometimes fails to do comprehensive reviews in child death and injury cases.

The newspapers and the cabinet have disagreed over how much information the state can withhold from the records released under Shepherd's most recent order.

Shepherd said the cabinet could redact only limited information, such as the names of child victims who are hurt but don't die and the names of private citizens who report suspected abuse.

The cabinet has appealed, however, arguing it should be allowed to redact more details under state and federal law.

Beshear said in his commentary that Shepherd's order could cause problems, such as making teachers reluctant to report suspected child abuse for fear they would be publicly identified.

Gill agreed that there would be a downside to opening child-abuse records, and he said the legislature needs to resolve the issue. But Gill said he thinks the cabinet's appeal is aimed at protecting the agency, not the identities of people who report child abuse.

However, Kerri Richardson, spokeswoman for Beshear, said Gill is incorrect to say the cabinet is protecting itself.

If that were true, she said, the state would not have released voluminous records.

"The cabinet is not just protecting those who report child abuse. The cabinet is trying to protect innocent victims of abuse or neglect and the innocent families of victims of abuse or neglect," Richardson said.

Gill said that in his 17 years as a circuit judge, he has seen cabinet attorneys and officials engage in "bizarre actions" at times that were hidden by confidentiality rules.

Behind closed doors, the cabinet can work against the interests of the vulnerable people it is supposed to protect, Gill said.

He cited a 2008 case in his court, in which the cabinet pushed to release a man from a state psychiatric hospital even though he was likely to hurt himself or others.

The man was troublesome to employees at the hospital, and the cabinet was acting on the employees' behalf to get the man out of their hair, Gill said.

"Secrecy allows people to do things in ways that they would not dare do in a public setting," Gill wrote.

Jill Midkiff, spokeswoman for the cabinet, said the agency did not ask the judge to release the patient.

Gill said he also had a case in his court involving a 17-year-old boy who had been badly abused and was prone to sexually abusing younger children.

The cabinet didn't tell local school officials about the potential danger, and the teen sexually abused a 5-year-old girl on a school bus, Gill said.

Secrecy "caused a lot more harm than good" in that instance, he said.

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