Judge fines Kentucky cabinet $756,000 for making 'mockery' of state Open Records Act

jcheves@herald-leader.comDecember 23, 2013 

A judge on Monday hit the Kentucky Cabinet for Health and Family Services with a $756,000 fine for making "a mockery" of the state's Open Records Act and repeatedly withholding information in its files about abused and neglected children.

It was the latest in a series of rulings by Franklin Circuit Judge Phillip Shepherd in favor of the Lexington Herald-Leader and The Courier-Journal of Louisville.

The newspapers sued the cabinet in 2011 for access to about 180 files involving social workers' interactions with children who died or suffered near-fatal injuries. The cabinet released the files, but it redacted far more information than Shepherd allowed, including names of victims and alleged abusers, photographs and criminal charges, and it did not cite its legal authority for the redactions, as the Open Records Act requires.

On Monday, Shepherd ordered the cabinet to pay a $756,000 penalty for its continued refusal to obey the law, plus it must pay the newspapers' attorneys fees and court costs, which will be determined in coming weeks. He also ordered the cabinet to release the files in uncensored form, with the few exceptions allowed by law, such as the names of underage siblings of victims if they are mentioned only because they are siblings.

"The entrenched habits of a government bureaucracy die hard," Shepherd wrote in his decision. "The cabinet has intentionally continued to employ a wholesale blanket approach to withholding public records, despite such approach being prohibited by the Open Records Act and contrary to this court's repeated orders to support any and all redactions by case-by-case analysis."

He added: "This rule of public disclosure in this narrow class of cases involving child fatalities and near-fatalities has been enacted not to assign blame, not to satisfy some unhealthy curiosity, not to sensationalize and not to gratuitously invade the privacy of mourning families. It has been enacted for a single, overriding purpose: to ensure both the cabinet and the public do everything possible to prevent the repeat of such tragedies in the future. There can be no effective prevention when there is no public examination of the underlying facts."

The cabinet was reviewing Shepherd's decision Monday and had no comment, spokeswoman Jill Midkiff said.

Jon Fleischaker, attorney for The Courier-Journal, said he had never seen such a hefty penalty in an Open Records Act case.

"It's a big award, but it's a big case," said Fleischaker, who has more than 40 years of experience in First Amendment law. "The cabinet spent three years digging in its heels and refusing to provide us with the records that it was supposed to under the law, and also that it had been ordered to by the court."

Apart from the fine, the newspapers' combined attorneys' fees and court costs could top $200,000, Fleischaker said.

The Herald-Leader's attorneys, Robert F. Houlihan Jr. and Kif Skidmore, said the case almost certainly would continue for months in the state Court of Appeals once Shepherd finishes this round. The cabinet already has appealed parts of the case to the state Supreme Court and unsuccessfully sought to have it moved to U.S. District Court.

In the wake of the newspapers' stories about abused and neglected children and the controversy over the records, state lawmakers have established an independent panel to review child fatalities and near-deaths. The panel is making a budget request for $400,000 for two staff members, a part-time lawyer and other expenses to help the 20-member panel dig through hundreds of case files.

John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: Bluegrasspolitics.bloginky.com.

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