Appeals court orders state to pay newspapers' attorney fees in records fight

bestep@herald-leader.comOctober 19, 2012 

A lower-court judge correctly ordered the state to pay $20,000 in fees and costs to attorneys for the state's two largest newspapers in an open-records fight, the state Court of Appeals ruled Friday.

The ruling upheld a September 2010 decision by Franklin Circuit Judge Phillip Shepherd. The case involved records on Kayden Daniels, also known as Kayden Bran-ham, who had been under the supervision of the state child-protection agency before he died in 2009.

Kayden and his 14-year-old mother were staying at a small mobile home in Wayne County where people had allegedly been making methamphetamine. Someone left drain cleaner, which can be used in making the drug, in a cup where Kayden could reach it. He drank some and died within an hour.

The Lexington Herald-Leader requested access to the files on Kayden and his mother from the state Cabinet for Health and Family Services in order to see how the agency had handled the case.

At the time, the cabinet had a blanket policy of denying all such requests, arguing that disclosure would further harm its vulnerable clients.

The newspaper sued the agency. The (Louisville) Courier-Journal later joined the lawsuit.

Shepherd ruled the cabinet had willfully violated the Kentucky Open Records Act and ordered it to disclose records on children who die or are hurt as a result of abuse or neglect.

He ordered the cabinet to pay a total of about $20,000 in fees and costs to attorneys who represented the newspapers.

The cabinet appealed that ruling.

Friday's decision by the three-judge panel of the Court of Appeals said Shepherd did not err.

The basic policy of the open-records law is that free and open examination of public records is in the public's best interest, and exceptions must be narrowly drawn, the panel said.

"In light of these principles, the cabinet's assertion of a blanket policy of non-disclosure plainly contradicts the act's preference for open disclosure and no way satisfied the cabinet's burden of justifying an exemption from that policy," the ruling said.

Former Supreme Court Chief Justice Joseph Lambert, sitting as a special judge on the appeals panel, wrote the decision, joined by Judges Glenn E. Acree and Joy A. Moore.

The panel sent the case back to Shepherd to consider adding more money to the award to cover fees and costs the newspapers incurred for the appeal.

Jill Midkiff, spokeswoman for the cabinet, said officials were disappointed with the ruling but no decision had been made Friday on whether to further appeal the decision.

Lexington attorney Kif H. Skidmore, who represents the Herald-Leader, said she was pleased with the ruling.

The larger point of the legal battle, Skidmore said, "is so that we can have meaningful self-examination when these tragedies occur."

The newspapers and cabinet remain in a legal battle over child abuse records in a separate case.

After Shepherd's ruling in the initial case involving one child, the newspapers sought records on scores of other children who died or were injured as a result of abuse or neglect.

In that case, Shepherd ruled that the cabinet must release those records with only minimal redaction — the names of children nearly killed as a result of abuse or neglect, the names of siblings of abuse victims, and the names of private citizens who report abuse.

He fined the cabinet more than $16,000 for withholding the records and ordered the agency to pay more than $57,000 in attorney fees and costs.

The cabinet redacted much more information before releasing thousands of pages of records this year and has appealed Shepherd's ruling, arguing that releasing sensitive information could discourage people from reporting abuse and could jeopardize criminal cases.

The newspapers argue that the broader redactions make it hard for the public to know if the child-protection system worked.

The cabinet has asked the state Supreme Court to hear the issue.

Midkiff noted Friday that the agency has changed its policy of denying all requests for records on child fatalities.

"The cabinet's highest priority remains the safety of all Kentucky children," she said in a statement. "This legal challenge has provided an opportunity for a needed and healthy debate on the best way to balance the privacy of child abuse victims with the public's interest in these cases, and we feel strongly that the cabinet's current policies on sharing minimally-redacted records meets that delicate standard."

Bill Estep: (606) 678-4655. Twitter: @billestep1

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