Judge: State must pay newspapers $301,000 to cover legal bills in child-abuse records dispute

bestep@herald-leader.comMarch 18, 2014 

Franklin Circuit Judge Phillip Shepherd

PHOTO PROVIDED

The state must pay $301,783 to Kentucky's two largest newspapers to cover their attorneys' fees in a court fight over records about children killed or badly hurt from child abuse, a judge ruled Tuesday.

Franklin Circuit Judge Phillip Shepherd also refused to rescind his earlier order for the Cabinet for Health and Family Services to pay a fine of $756,000 for willfully withholding public records from the Lexington Herald-Leader and The Courier-Journal of Louisville.

The cabinet is "reviewing" Shepherd's order, spokeswoman Jill Midkiff said Tuesday. She declined to comment further about the order, which could be appealed.

Shepherd strongly criticized the cabinet, saying its actions dragged out the case, which "vastly increased" what it must pay.

Shepherd said the cabinet refused to comply with the state's open-records law; sought unjustified emergency regulations to shield files; pursued unsuccessful attempts to switch the case to federal court and appeal one of his rulings; and repeatedly failed to comply with instructions on releasing documents.

"The record in this case vividly documents the cabinet's willful and unyielding determination to shield its conduct from the public scrutiny" required by state law, Shepherd said in the ruling.

Of the legal fees Shepherd ordered the cabinet to pay, $72,896 is for the Herald-Leader's legal bills and $228,887 is for The Courier-Journal's bills during the long-running litigation.

"If just a fraction of the energy spent fighting this open-records case was devoted instead to shining a light on child abuse, we might make some progress in preventing further tragedies," Kif Skidmore, an attorney for the Herald-Leader, said after Shepherd's ruling.

The cabinet has withheld "massive amounts" of information from the files sought by the newspapers, without the required examination of whether the redactions were justified or proper, Shepherd said.

Cabinet attorneys and officials have argued that their aim is to protect vulnerable children and families, and they have cited a concern that releasing certain information about deaths and near-deaths could discourage people from reporting suspected abuse.

In his order, Shepherd countered that the cabinet's conduct in the cases at issue shows that the "fortress of secrecy" it has built "is consistently used to cover up the cabinet's own malfeasance and its failure to protect our most vulnerable children."

Shepherd said the cabinet has made important improvements under current Secretary Audrey Haynes, but the public can't adequately understand breakdowns in child protection if the agency remains shrouded in secrecy.

"The record in this case demonstrates that such preventable tragedies will continue to occur as long as the Cabinet's conduct in child fatality cases remains effectively shielded from public scrutiny," the judge wrote.

Shepherd said in his order that he is mindful that the cabinet will have to pay the fine and attorney fees from public funds, but he concluded that it's the only way to secure justice in a case in which some of the cabinet's acts have been an "extraordinary departure from customary litigation."

The cabinet has already paid the newspapers more than $50,000 to cover their legal bills in an earlier related lawsuit over child-abuse records.

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

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