Appeals court upholds penalties against state for withholding child-safety records

An order for the state to pay a penalty and fees totaling more than $1 million was proper in a case in which an agency wrongly withheld records on child fatalities and serious injuries, a state appeals panel ruled Friday.

The opinion was a full-throated affirmation of Kentucky’s open-records law, saying the stiff penalty for the Cabinet for Health and Family Services was justified by its willful disregard of requirements for public agencies to disclose records.

The three-member Court of Appeals panel agreed with a decision by Franklin Circuit Judge Phillip Shepherd that the cabinet improperly withheld records sought by the Lexington Herald-Leader and The Courier-Journal in Louisville.

“Public entities must permit inspection of public records as required or risk meaningful punishment for noncompliance,” Appeals Court Judge Irv Maze wrote in the majority opinion. “Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

The Herald-Leader’s attorney, Kif H. Skidmore, said she was pleased with the decision.

“This case has been about changing a culture of secrecy to one of transparency where child-abuse fatalities are concerned,” Skidmore said. “Communities need to examine every aspect of these tragedies to better protect our children.”

The cabinet could appeal the decision. Jessica Ditto, spokeswoman for Gov. Mat Bevin, said the decision is under review.

Ditto said the ruling was based on a “serious cover up” during the administration of former Gov. Steve Beshear “that has now led to an unfortunate million-dollar liability for the Commonwealth’s taxpayers.”

“The court found the Cabinet for Health and Family Services acted willfully in withholding documents regarding the deaths of children,” Ditto said in a statement. “In the Bevin Administration things will be very different — we will hold ourselves accountable and be accessible to the public, particularly regarding the most vulnerable members of society.”

Judge Janet Stumbo joined Maze in the opinion.

The third member of the panel, Judge Jeff Taylor, said he agreed the cabinet willfully withheld records and that it should pay $301,000 to attorneys representing the newspapers.

However, Taylor said the $756,000 penalty Shepherd ordered the cabinet to pay for violating the open-records law was excessive.

The law says a court can award a fine of up to $25 a day for each day someone is improperly denied the right to inspect a public record.

Shepherd imposed a fine of only $10 a day, but applied it to each of 140 case files the newspapers sought and multiplied that by 540 days — the period over which he said the cabinet improperly withheld the documents.

Taylor said Shepherd instead should have treated the inspection requests as one request from each paper for 140 files. That would make the fine no more than $25 a day for each newspaper for 540 days, or a total of $27,000.

Maze and Stumbo, however, said Shepherd’s interpretation was “entirely reasonable” given the cabinet’s conduct.

The road to Friday’s ruling started after a 20-month-old Wayne County boy died in May 2009 after drinking caustic drain cleaner at a meth lab.

The cabinet, which investigates allegations of child abuse and neglect, had a longstanding policy against publicly releasing files on children who died or were badly injured in such cases.

It denied a request from the Herald-Leader for documents on the Wayne County case.

The two newspapers ultimately sued for access to files on 140 children killed or badly hurt in 2009 and 2010.

Shepherd ruled state law requires the cabinet to disclose much of the information in such cases. He ruled that the cabinet improperly withheld records from the newspapers.

The cabinet released files after that, but blocked out more information than allowed, the judge ruled.

That was one thing Shepherd pointed to in ruling that the cabinet had willfully violated the law, opening the door to a steep penalty.

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.

The cabinet argued it had not willfully violated the state open-records act.

But attorneys for the newspapers argued the cabinet consistently acted in bad faith, proposing an emergency regulation to block release of the records, trying to get the case switched to federal court, delaying the release of information, and failing to follow Shepherd's instructions when it did start releasing records.

The Appeals Court decision released Friday said the panel agreed with Shepherd’s exasperation over the cabinet’s “systematic and categorical” disregard for the law.

The cabinet’s conduct “evinces an obvious and misguided belief that the Open Records Act is merely an ideal – a suggestion to be taken when it is convenient and flagrantly disregarded when it is not,” the decision said.

“We could not disagree more.”

David Thompson, president of the Kentucky Press Association, said the $756,000 fine is the largest he was aware of in a state open-records case.

Records the cabinet released to the newspapers about the 2009 and 2010 cases showed 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.