In a stinging rebuke, Franklin Circuit Judge Phillip Shepherd, right, blasted the cabinet for refusing to follow a decision he issued in 2010 on the same issue."The Court must conclude that the cabinet is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law," Shepherd wrote in an opinion filed Nov. 3.
The cabinet argued, as it did in the previous lawsuit over records of a child in its care, that federal law keeps it from opening the records. Shepherd rejected that argument for a second time and said both state and federal laws include an exception to that confidentiality when a child dies or nearly dies while under state supervision.
Shepherd cited passages from records of the U.S. Senate and House establishing that it was never the intent of Congress to allow state governments to protect their actions from public scrutiny in such cases.
"The Cabinet simply cannot use the defense of privacy to shield itself from the explicit statutory mandate designed to allow public accountability for agency actions or omissions in the most egregious of cases that result in a child fatality or near fatality," Shepherd wrote.
The Lexington Herald-Leader and The Courier-Journal filed the lawsuit after the cabinet refused to give reporters access to records concerning the deaths or near-deaths of abused and neglected children under its supervision.
Jon Fleischaker, an attorney for The Courier-Journal, called Shepherd's ruling a major open-records victory for the newspapers and the public because it forces the cabinet to disclose details of how well the state does its job of protecting children from severe abuse.
“It’s about time the cabinet recognizes that it is not above the law,” Fleischaker told the Louisville newspaper for its story. “It has to comply with the mandate of state and federal law. This is not a difficult issue.”
Fleischaker called on Gov. Steve Beshear to intervene to ensure that the cabinet complies with Shepherd's ruling.
The judge gave the cabinet 10 days to negotiate with the newspapers over release of the records, recognizing the cabinet might need time to gather and copy the records it must hand over. If the parties can't agree, the judge will hold a hearing. He left open the question of requiring the state to reimburse the newspapers for legal expenses in the case.
Cabinet officials told the Herald-Leader Thursday that they have not decided whether they will take the case to the Court of Appeals. Cabinet attorneys believe the ruling could affect "incidences of child fatalities or near-fatalities that include no prior contact with the cabinet or the court system," said Jill Midkiff, a spokeswoman for the cabinet.
The Courier-Journal filed an open records request with the cabinet seeking records of its investigations into the deaths of children under its care between July 1, 2009, and Dec. 17, 2010, as well as records concerning the deaths of two children in 2008. The Herald-Leader filed for records for the period July 1, 2009, to June 30, 2010. When the cabinet denied their requests, the newspapers filed suit in January.
The lawsuit was almost identical to a previous suit in which Shepherd ruled in May 2010 against the cabinet. In that case, he ordered the cabinet to release records related to the death of Kayden Daniels, right, a 20-month-old Wayne County boy who died after ingesting poison. Both the child and his mother, then 14, were under supervision of the cabinet.A 2009 Courier-Journal investigation found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.
Read more in the Herald-Leader and in the The Courier-Journal. Read Judge Shepherd's ruling here. Read about Judge Shepherd's decision in 2010 here.
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