Kentucky Supreme Court upholds ruling to release child abuse records

bestep@herald-leader.comApril 25, 2013 

The Kentucky Supreme Court on Thursday upheld an order requiring the state to release more information about children killed or badly hurt as a result of abuse or neglect.

The ruling is the latest development in a long-running dispute between the state's two largest newspapers and the Cabinet for Health and Family Services over access to its files on abused children.

The cabinet had asked the Court of Appeals to put a hold on a lower-court ruling requiring the cabinet to release such records with minimal redactions to the Lexington Herald-Leader and The (Louisville) Courier-Journal.

The Court of Appeals declined to issue the stay last year. The cabinet appealed that decision to the Supreme Court.

Three high-court justices voted to uphold the Court of Appeals' rejection of the stay and three voted to overturn it, while the seventh did not take part in the decision. The tie means the Court of Appeals ruling remains in place, according to the high court's order.

The cabinet, which investigates allegations of child abuse, long had a policy of not releasing information to the media about cases in which children died or nearly died because of abuse or neglect.

The newspapers sued the cabinet in 2011 for access to about 180 files on such cases from 2009 and 2010.

Franklin Circuit Judge Phillip Shepherd ruled that the cabinet must release the records. He said the public has an overriding interest in access to information that can help show how the cabinet performed its job of protecting children.

He also fined the cabinet $16,000 for improperly denying access to records.

Shepherd said the cabinet could withhold 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.

The cabinet released the files, but blocked out more information than Shepherd had outlined. And while the agency disclosed what information it withheld, it did not cite the statutory authority for doing so.

The newspapers argue that the cabinet did not comply with Shepherd's order in releasing the files.

Jill Midkiff, a spokeswoman for the cabinet, said Thursday that the tie vote in the Supreme Court showed the agency made strong arguments for protecting the privacy of siblings of abuse victims and the names of all people who report suspected child abuse.

The agency has not tried to shield the name or actions of its social workers, Midkiff said.

The court's decision could have troubling consequences, she said.

"The cabinet sought the stay to ensure that all individuals with knowledge of abuse can report it without fear of retaliation, which we believe was the intent of the statute," Midkiff said in a written statement. "Because the courts' actions preclude the cabinet from protecting the confidentiality and privacy of all citizens and family members who report suspected abuse, we fear this may have a chilling effect on the voluntary reporting of child abuse or neglect and lead to needless injuries and deaths of children."

An attorney for the Herald-Leader scoffed at that claim, calling it irresponsible. There's no evidence that releasing records under the guidelines Shepherd laid out will discourage people from reporting abuse, said Robert F. Houlihan Jr.

To the contrary, greater public scrutiny will help protect children, he said.

"It's going to save children," Houlihan said. "It's not going to cause children to be at greater risk."

The newspapers sought access to the information in order to review the cabinet's performance because children already had died, Houlihan said.

The cabinet sought the stay as part of its larger appeal of Shepherd's ruling requiring release of the case files. That appeal is still pending.

The Herald-Leader will now go back before Shepherd to discuss how to proceed in light of Thursday's decision, Houlihan said.

The Courier-Journal's attorney, Jon Fleischaker, said the paper will seek to have the child abuse files released with no information withheld because the cabinet didn't comply with Shepherd's earlier order.

Thursday's order was "extremely important because it shows we're moving forward," Fleischaker said.

In the wake of news reports on child deaths and the controversy over releasing records, state lawmakers this year approved an independent panel to review child fatalities and near-deaths. The panel can get files on those cases with no information blocked out.

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

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