The State of Kentucky did the right thing this week when it agreed to settle a lawsuit requiring release of case documents related to children who were killed or grievously harmed due to abuse and neglect.
This newspaper and The (Louisville) Courier-Journal have been embroiled for almost six years in a legal battle with the Cabinet for Health and Family Services, which investigates cases of fatal or near-fatal abuse and neglect of children, to open the files in those files.
The victory is not for the newspapers, it is for open government.
Open government in this instance means lifting the veil on what led up to the horrible deaths, or near-deaths of these children.
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Two profoundly tragic child deaths gave rise to the dispute.
Kayden Branham, a 20-month-old, died in 2009 when he drank drain cleaner that was being used to produce meth in a trailer where his parents, both teenagers, were staying.
In 2011 Amy Dye, a 9-year-old, died after being beaten by an older brother in her adoptive home. Documents that were ultimately released showed that reports of alleged abuse by Amy’s teachers had been ignored.
News reports on the deaths led to creation of an independent panel that reviews all abuse and neglect cases that result in the death or near-death of a child in order to recommend changes to help protect children. This openness and review is the only way we, as a state, can do better by endangered children in the future.
The settlement is also a victory for the rule of law, including the concept that even governments must obey laws. The cabinet will reimburse the two newspapers a total of almost $450,000 in attorneys’ fees that accrued during the litigation. The cabinet will also pay the two newspapers a total of $250,000 in penalties for acting as if Kentucky open records law is “an obstacle to be circumvented rather than a law mandating compliance,” in the words of Franklin Circuit Judge Phillip J. Shepherd’s 2013 ruling.
Shepherd had ordered a penalty of $756,000, saying the cabinet willfully defied state law in refusing to release documents the newspapers requested. The newspapers will share equally the negotiated penalty of $250,000. Each organization is reviewing ways the money can be used to contribute to the causes of open government and child welfare.
Writing for the State Court of Appeals panel that upheld Shepherd’s ruling, Judge Irv Maze agreed that public agencies must be called to task with serious punishment when they defy open records laws by denying access to public documents: “Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency and secures the public trust.”