Watchdog

State to pay $250,000 penalty to newspapers over child abuse records

Kayden Branham, 22 months old, died after ingesting a drain cleaner used in cooking meth. He was about a year old in this photo.
Kayden Branham, 22 months old, died after ingesting a drain cleaner used in cooking meth. He was about a year old in this photo.

The state will pay a $250,000 penalty to Kentucky’s two largest newspapers to settle a lawsuit that requires public disclosure of documents about children who die or are severely injured from abuse or neglect.

The newspapers had fought the legal battle for years as they attempted to assess state efforts to protect vulnerable children.

The Cabinet for Health and Family Services, which investigates cases in which children might have died as a result of abuse or neglect, also agreed to pay attorney fees of $110,000 to the Lexington Herald-Leader and $339,000 to The (Louisville) Courier-Journal.

The $250,000 is a penalty for violating the state’s open records law.

Franklin Circuit Judge Phillip J. Shepherd ordered a much higher penalty, $756,000, in 2013, ruling that the cabinet had willfully refused to release documents as required by state law in response to the newspapers’ requests.

The cabinet acted as if the law was “an obstacle to be circumvented rather than a law mandating compliance,” Shepherd wrote.

A panel of the state Court of Appeals upheld that ruling this year, saying public agencies must permit inspection of public records as required by the law “or risk meaningful punishment for noncompliance.”

“Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency and secures the public trust,” Judge Irv Maze wrote in the majority opinion.

The newspapers agreed to the lower penalty amount, and the state agreed to drop its request for the state Supreme Court to review the case. Each paper will receive $125,000.

Rufus Friday, president and publisher of the Herald-Leader, said the newspaper was evaluating options for using the penalty to serve the community and promote transparency, with an emphasis on child welfare, families and social services.

The real goal of fighting for access to the records was to promote greater openness in child welfare, Friday said.

“This resolution leaves no doubt that these records related to state government’s role in protecting its most vulnerable citizens are open for public scrutiny. That has been our goal from the beginning,” Friday said.

Jessica Ditto, a spokeswoman for Gov. Matt Bevin, laid blame for the settlement on the administration of former Gov. Steve Beshear.

“The court’s opinion was based on the Beshear administration’s lack of transparency and disregard for an open government, which led to an unfortunate million-dollar liability for the commonwealth’s taxpayers,” Ditto said. “This settlement saves the taxpayers over $500,000 plus additional legal expenses.”

Under Bevin, state officials “will hold ourselves accountable and be accessible to the public, particularly regarding the most vulnerable members of society,” she said.

The opinion from the Court of Appeals will remain published, which is significant because published opinions have more weight in legal cases.

“This paves the road for more transparency with regard to child-fatality records,” Kif Skidmore, attorney for the Herald-Leader, said of the newspapers’ fight.

The path to the settlement made public Monday started with a gruesome tragedy in May 2009, when Kayden Daniels, a 20-month-old Wayne County boy, died after accidentally drinking caustic drain cleaner that had been used to make methamphetamine at a trailer where his teenage parents had been staying.

The Herald-Leader asked the state for records detailing its involvement with Kayden and his mother.

However, the agency had a longstanding policy against publicly releasing files on children who died or were badly injured in such cases, and it denied the newspaper’s request for documents.

That was the genesis for a court fight in which the Herald-Leader and The Courier-Journal ultimately sued the cabinet for access to files on 140 children killed or badly hurt in 2009 and 2010.

Shepherd ruled that such records are subject to release under the state open records law and that the cabinet had improperly withheld records from the newspapers.

The cabinet began releasing files to the papers after that, but blocked out more information than allowed, the judge ruled.

That was one thing Shepherd pointed to as justification for a stiff penalty, but it wasn’t all. He said the cabinet also proposed an emergency regulation at one point to block release of the records, tried to get the case switched to federal court, and failed to follow Shepherd’s instructions when it did start releasing records.

David Thompson, president of the Kentucky Press Association, said the $250,000 penalty included in the settlement would be among the largest ever in a state open records case.

Documents the newspapers received from the cabinet about 2009 and 2010 cases showed that the agency did not conduct required internal reviews of some deaths and injuries, and that some reviews were far less detailed than others.

The goal of the reviews is to look at potential changes that could prevent other deaths or injuries.

In the wake of news reports on child deaths and the controversy over releasing records, state lawmakers approved an independent panel to review child fatalities and near-deaths stemming from abuse and neglect, and recommend changes aimed at protecting children.

Former Franklin Circuit Judge Roger Crittenden, who heads the panel, said reporting on child deaths helped stimulate the resolve to create the review panel.

“Certainly the legislature was paying attention to that,” Crittenden said.

Lawmakers gave the panel unrestricted access to cabinet records.

Reviews have found instances in which cabinet employees did a great job, and cases in which cabinet employees or others performed poorly, showing opportunities for improvement, Crittenden said.

Terry Brooks, head of Kentucky Youth Advocates, said the newspapers’ fight for greater openness in cases involving child deaths had the potential to help improve child protection.

The newspapers’ lawsuit was over open records, but Brooks said he saw it as advocacy for children.

“I’m happy that Kentucky kids have a really good shot at system improvement” as a result, he said.

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