Judge gives state 30 days to explain why it withheld child abuse information

bmusgrave@herald-leader.comMay 9, 2013 

FRANKFORT — A Franklin Circuit Court judge has given the state 30 days to tell the state's two largest newspapers why it redacted and took out information from more than 140 case files of children who have been killed or nearly killed from abuse or neglect.

Franklin Circuit Court Judge Philip Shepherd also ordered Cabinet for Health and Family Services Secretary Audrey Tayse Haynes to appoint a high-level staffer to oversee the cabinet's compliance with his order.

Shepherd's decision on Thursday came after a nearly two-hour hearing in Franklin Circuit Court on the status of the case that has taken almost three years to litigate.

Shepherd said that he would like Haynes to appoint someone by June 10 to oversee the cabinet's compliance with the Open Records Act. Shepherd also said that he hopes the cabinet will provide detailed explanations of why information was removed by June 10 but gave the cabinet some leeway in case it takes longer given the number of case files involved. The newspapers are asking for the case files of children who have been killed or nearly killed from abuse and neglect in 2009 and 2010.

Christina Heavrin, general counsel for the cabinet, said after the Thursday hearing that she thinks Haynes would appoint someone soon and said the cabinet will make every effort to comply with the June 10 deadline.

The Lexington Herald-Leader and The Courier-Journal have been in a legal fight with the state over the release of social worker case files in child deaths and near deaths.

Shepherd has ruled twice that child protection case files are exempt from the state's Open Records law with the exception of deaths and near deaths. The cabinet began releasing case files to the media in January 2012 but had redacted lots of information.

Lawyers for the media have argued that the information released by the cabinet was so heavily edited that in some cases it was impossible to determine what had happened.

The cabinet argued that it had released the records while part of the case was before the state Court of Appeals and state Supreme Court.

But Kif Skidmore, a lawyer for the Herald-Leader, said the cabinet never cited a specific exemption on why the cabinet thought certain records or information should be withheld, which is required under the state's Open Records Act.

Shepherd agreed.

"The court has been asking for that now for a long time," Shepherd said. "I don't think we have seen a single assertion of a specific exemption (to the Open Records Act)."

But the cabinet has argued that there are a series of privacy issues. A grandmother who may have been asleep on the couch when a mother rolled over on a baby in an adjoining bedroom may be named in the case file but had nothing to do with the child's death, Heavrin argued. The case files also contain juvenile court records, which are exempt under the state's Open Records Act, Heavrin said.

The parties agreed that they would return for another hearing in the case after June 10 and determine if there were categories of information — such as mental health records — that should be or should not be exempt from public release.

The Courier-Journal had filed a motion asking that Shepherd hold the cabinet in contempt and award attorney fees for the media's legal team. But Shepherd did not rule on the motion, saying he would take it into consideration if the cabinet failed to comply with the latest order.

The cabinet had argued that parts of the case have been on appeal to the higher courts and therefore officials were waiting on the state Supreme Court's ruling to determine how to proceed.

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

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