Newspaper lawyers question state officials about child-abuse records

bmusgrave@herald-leader.comJuly 29, 2013 

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FRANKFORT — Lawyers for the state's two largest newspapers grilled state officials Monday about why they refused to publicly release portions of more than 140 case files about children who were killed or critically injured as a result of abuse or neglect.

For example, lawyers questioned why the Cabinet for Health and Family Services had blotted out information on a news release from the Kentucky State Police about a criminal indictment of a foster parent, why it had removed the name of a parent who had been charged with a crime, and why the cabinet continued to withhold entire files long after criminal prosecutions of the cases were completed.

The more than six-hour hearing in Franklin Circuit Court was the latest in a more than three-year court battle waged by the Lexington Herald-Leader and The Courier-Journal of Louisville over what information must be released after a child dies or nearly dies as a result of abuse and neglect. The hearing continues Tuesday.

"If the information is public and publicly available, why is it private?" asked Jon Fleischaker, a lawyer for the Courier-Journal.

Dana Nickles, a policy adviser for the cabinet who oversees the process of removing information from the case files of social workers, testified Monday that the cabinet removed any information that could be viewed as private or that is required to remain confidential by federal and state laws. She cited juvenile court records, social security numbers, information about whether a person receives government benefits, and mental health records as examples.

"What the cabinet is trying to do is protect the safety of these families," Nickles said.

Nickles acknowledged that some information, such as portions of a Kentucky State Police news release, should not have been redacted. But cabinet officials don't always know what information is publicly available when they redact information from a file, she said.

Lawyers for the newspapers rejected that argument, saying cabinet officials should know not to remove pertinent information from case files that is publicly available elsewhere.

The Herald-Leader first sued the cabinet to get the case file of Kayden Branham, a 20-month-old Wayne County toddler who died in 2009 after drinking drain cleaner allegedly used in the production of methamphetamine. The newspapers then sued the cabinet in 2011 for access to about 140 case files of abused children from 2009 and 2010.

Franklin Circuit Judge Phillip Shepherd ruled that the cabinet must release the records, declaring that the public has an overriding interest in knowing how the cabinet performed its job of protecting children. He also fined the cabinet $16,000 for improperly denying access to records.

In his ruling, 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. It also failed to cite the statutory authority for doing so, the newspapers argue.

The agency has repeatedly argued that it is not trying to hide the actions of its social workers or other officials, but is only trying to protect the privacy of innocent third parties.

Nickles and Teresa James, the Commissioner for the Department of Community Based Services, testified Monday that hey removed the names of every adult in some case files because they felt those people's privacy rights should be protected.

Kif Skidmore, a lawyer for Herald-Leader, asked if the cabinet had balanced someone's right to privacy with the public's right to know.

For example, she cited a case where a man allegedly beat a 2-month-old baby, causing more than 27 broken bones. The man was never criminally charged and the child survived, but the man's name was redacted from the case file.

"If this man was living across the street from me, shouldn't I have the right to know?" Skidmore asked.

James said the names of that alleged perpetrator and others were redacted because they could be used to identify the child or their siblings. James said she fears that releasing personal information could jeopardize the safety of abuse victims and social workers.

On Tuesday, James and social workers are expected to testify about why specific information was redacted from about 20 case files. Shepherd will then make a final determination about what information the cabinet must release.

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

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