Kentucky Court of Appeals declines to block release of child abuse records

bmusgrave@herald-leader.comJuly 9, 2012 

FRANKFORT — The Kentucky Court of Appeals declined Monday to halt the release of thousands of pages of documents about children who were killed or seriously injured from abuse and neglect.

In a 2-1 decision, the Court of Appeals denied the Cabinet for Health and Family's Services motion for a stay, pending the outcome of an appeal of a lower court's order to release the documents.

The ruling means the cabinet must follow the orders of Franklin Circuit Court Judge Phillip Shepherd, who ruled in February that the cabinet had 90 days to provide the Lexington Herald-Leader and The Courier-Journal of Louisville with 180 case files of children who died or nearly died as a result of abuse and neglect in 2009 and 2010.

Monday's order "acknowledges the strength of our case," said Jon Fleischaker, a lawyer for The Courier-Journal.

Cabinet spokeswoman Jill Midkiff said Monday afternoon that the cabinet "received a copy of the ruling late this afternoon and is currently in the processing of reviewing it."

The ruling is the latest action in a lengthy lawsuit filed by the state's two largest newspapers under the Kentucky Open Records Act.

Shepherd has ruled twice in the past two years that the newspapers are entitled to child-protection records when a child dies or nearly dies as a result of abuse or neglect. All other state child-protection records are confidential.

The cabinet and newspapers have sparred in recent months over what information contained in the files should be made public.

In January, 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.

The cabinet appealed Shepherd's order. In Monday's decision, the Court of Appeals denied the newspapers' request to dismiss the cabinet's appeal. However, the appeals court also denied the cabinet's motion to stay Shepherd's orders — which included specific instructions about what information could be redacted from case files released to the public — until its appeals were exhausted.

Court of Appeals Chief Judge Glenn Acree, writing for the majority, said the cabinet could not prove that people would be harmed if the documents are released as Shepherd ordered.

The cabinet has argued in court documents that releasing sensitive information could jeopardize future criminal cases and discourage people from reporting abuse and neglect. It had sought permission to redact broad categories of information from the files. The newspapers argued that the redactions would make it impossible for the public to gauge if the child-protection system worked.

Shepherd ruled that the cabinet could withhold the names of children who have been nearly killed by abuse or neglect, the names of siblings of abuse victims, and the names of private citizens who report abuse. All other information must be released.

In the appellate court's decision, Acree noted that the cabinet did not appeal a similar ruling by Shepherd in 2010. In that case, the Herald-Leader sued the cabinet to obtain its files regarding the death of 20-month-old Kayden Branham, who died in Wayne County after drinking drain cleaner that allegedly was intended to be used as an ingredient in methamphetamine. Both Kayden and his mother, who was 14 at the time, were under the cabinet's supervision at the time of Kayden's death.

After the state released its documents about Kayden and his family in December 2010, the Herald-Leader and Courier-Journal requested the case files of all children who died or nearly died as a result of abuse and neglect in 2009 and 2010. Monday's Court of Appeals decision is part of that legal fight.

Since January, the cabinet has generally provided the newspapers with redacted versions of two to four case files each week. It has not released dozens of other case files.

Acree and Judge Joy A. Moore voted for the decision. Justice Michelle Keller dissented in part.

Beth Musgrave: (502) 875-3793. Twitter: @BGPolitics. Blog: Bluegrasspolitics.bloginky.com.

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