A panel of Kentucky Court of Appeals judges heard arguments Wednesday about a penalty and fees totaling more than $1 million in a legal battle between the state and its two largest newspapers over the records of children killed or badly hurt as a result of abuse or neglect.
Franklin Circuit Judge Phillip Shepherd fined the state Cabinet for Health and Family Services $756,000 after finding it had improperly withheld information from the Lexington Herald-Leader and The Courier-Journal in Louisville. Shepherd also ordered the cabinet to pay attorneys for the newspapers $301,000 for their work in a lawsuit to get the records.
The cabinet appealed, and Court of Appeals Judges Jeff Taylor, Irv Maze and Janet Stumbo heard arguments Wednesday in Lexington about whether the cabinet willfully violated the state Open Records Act by withholding information, and how much information the agency legally should be allowed to withhold in cases of fatal and near-fatal child abuse.
Shepherd ruled the cabinet violated its obligation to release information, making a "mockery" of the law that helps the public understand how public agencies perform.
The rule requiring disclosure of records on the deaths and near-deaths of children has one critical goal, Shepherd said: to make sure the cabinet and the public do everything possible to prevent more tragedies.
However, the cabinet's attorney, Sheryl G. Snyder, argued in court Wednesday that the agency did not willfully violate the Open Records Act.
The cabinet, which investigates allegations of child abuse and neglect, long had a policy of not giving the media any files on children who died or were badly hurt in such cases. Federal law and opinions from the state attorney general's office supported the cabinet's position, Snyder said.
The issue changed after the Herald-Leader sought access to the cabinet's file on a 20-month-old Wayne County boy who died in May 2009 after drinking caustic drain cleaner at a meth lab.
The cabinet denied the request, prompting a lawsuit from the two newspapers. The papers later sued to get access to files on 140 fatal and near-fatal cases from 2009 and 2010.
Shepherd ruled in both cases that the state has an obligation to disclose much of the information about such cases.
The cabinet developed a protocol to review files, but Shepherd ruled the agency withheld too much information.
Snyder argued Shepherd was wrong.
The cabinet's protocol satisfied the requirements of the law and the newspapers' voluminous request for information, while also following exemptions to protect the privacy of people mentioned in the files, Snyder told the judges.
"It wasn't a motivation to flout the law," Snyder said.
But attorneys for the newspapers argued the cabinet consistently acted in bad faith, proposing an emergency regulation to block release of the records, unsuccessfully trying to get the case switched to federal court, delaying the release of information for about two years, and failing to follow Shepherd's instructions when it did start releasing records.
"That's not good faith," said Jon Fleischaker, an attorney for The Courier-Journal.
Kif H. Skidmore, an attorney for the Herald-Leader, told the judges the cabinet withheld a range of information without proper justification, including the names of perpetrators of abuse and prior allegations of abuse.
Shepherd's guidelines on what details the cabinet could withhold — such as the names of non-family members who reported suspected abuse — struck the right balance between disclosure and privacy interests, Skidmore said.
The cabinet provided no evidence during an earlier hearing of any privacy violations from releasing the records, Fleischaker said.
The cabinet wants the Court of Appeals to overturn Shepherd's order for the agency to pay the newspapers' attorneys and to the $756,000 fine, or to use a different calculation that would cut the fine drastically.
It also wants to continue using its system for withholding information from child abuse records it releases, arguing it provides "more than sufficient information" to evaluate how the state handles cases.
The newspapers want the court to uphold the fine and fee award — with additional money for subsequent work — and to order the agency to follow Shepherd's more narrow system for withholding information.
Records the cabinet released to the newspapers 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.
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.