C-J says Beshear must set health-and-family cabinet right on child-abuse records, following judge's order

The Courier-Journal published a remarkable editorial Sunday excoriating the Cabinet for Health and Family Services for the high level of secrecy in which it has enveloped cases of children who were killed or nearly killed while its caseworkers were supposed to see that they were protected from harm. Last week a judge ordered the cabinet to pay nearly $1 million in civil penalties and attorneys' fees to the newspapers that have been seeking the records. Rather than excerpt the editorial, we publish it in full, along with photographs of the officials it holds responsible. For larger versions, click on the images.

AG: Cabinet hid too much information from Inez newspaper about case of 2-year-old who died

Attorney General Jack Conway has ruled that the state Cabinet for Health and Family Services violated the Open Records Act by withholding information about the death of a 2-year-old Prestonsburg boy whose aunt and uncle have been charged with killing him.

The Mountain Citizen, a weekly newspaper in Inez, asked for all information the cabinet had on Watson Adkins, whom the state had removed from his mother's home and placed in the custody of his maternal aunt, Gladys Dickerson of Prestonsburg. The boy was found unresponsive there in September 2011.

The cabinet "initially did not provide two previous unsubstantiated reports of abuse against Gladys and Jason Dickerson to the newspaper but later supplied the reports with much of the information redacted," reports Beth Musgrave of the Lexington Herald-Leader. "The opinion said the cabinet could not redact some of that information, including the names of perpetrators involved in the unsubstantiated reports."

Conway said the cabinet also violated the records law "by failing to cite either state or federal law that allowed it to withhold or redact certain information," Musgrave writes, noting that the case is the latest "in a more that three-year legal battle between the media and the Cabinet for Health and Family Services over what can be released after a child is killed from abuse and neglect. . . . What information can be redacted or blacked out of those files is currently on appeal."

The cabinet has 30 days from Monday, the date of the open-records decision, to appeal it to circuit court.

Citizen Editor Gary Ball told Musgrave that he sought the information after hearing that the cabinet had been told the Dickersons were mistreating the boy and his four siblings. “I got heavily redacted information,” he said. “I wanted all records from the time that they were removed from the home to the time of the criminal charges.” He said the mother had taken photos of suspicious injuries to the children.

"Ball said that the cabinet had investigated two reports of alleged abuse against Gladys and Jason Dickerson before September 2011," Musgrave writes. "Ball received the reports from the cabinet but it’s difficult to tell why those reports were not substantiated." He told Musgrave, “I want the records that will show me how they made that determination that those reports were unsubstantiated.” (Read more)

Editor, lawyer say open-government laws being obeyed more, but the battle will never end

By Al Cross
Institute for Rural Journalism and Community Issues

Public officials in Kentucky are doing better at obeying open-government laws, but many still have a ways to go, but Kentuckians are making increasing use of the laws to hold officials accountable.

So said the chief author of the laws, and one of the leading users of them, in an interview being broadcast on statewide television this week to mark the 20th anniversary this month of the laws' major rewriting. They also said the battle for open government will never end.

"We have to re-educate our local officials every four years about open meetings and open records," John Nelson, executive editor of Danville-based Advocate Communications, told Bill Goodman on "One to One," broadcast on KET Sunday afternoon. The show is airing on KET2 Tuesday, July 24 at 7:30 p.m. ET and Wednesday, July 25 at 7:30 a.m. ET and on KET Sunday night, July 29 at 12:30 a.m. ET. It is available online by clicking here.

Host Bill Goodman shares a laugh with Nelson, center, and Fleischaker

Nelson, a leader in using the Open Records Act, said "We use it or consider using it at least weekly" at the company's papers in Danville, Winchester, Nicholasville and Stanford. He said he has seen recently seen an increasing use of open-government laws by the public, and "I would love to see more citizens become more aware of the law."

The General Assembly passed the laws in the mid-1970s and revised them in 1992. Since them, users of the records law have made some progress in reducing an attitude among public officials that records were "their business, not the public's business," said Jon Fleischaker, a Louisville attorney who helped draft the first laws and was the Kentucky Press Association's chief counsel on the rewrites.

Fleischaker said one powerful aspect of the laws is the ability of anyone to appeal the denial of a record, or access to a meeting, to the state attorney general and get within 20 days a ruling that has the force of law unless overturned in court. He said the process for "a quick and easy determination that is inexpensive" is "close to unique" among the states.

He said the attorney general's office has become increasingly helpful with successive attorneys general: "They're very consumer-friendly, citizen-friendly." He said later that most judges have also been a boon: "The courts in Kentucky have been very favorably inclined toward openness."

A key court decision, opening the donor records of university foundations, stemmed in part from a better definition of "public agency" included in the 1992 rewrite, Fleischaker said. The loser in his lawsuit for The Courier-Journal was the University of Louisville, which claimed privacy but had "wrongly assured" donors they would remain anonymous, he said. "In most of those cases there was a deal being made" with the donor. "That's not a private matter."

KPA and others began pressing for improvement of the laws little more than a decade after their passage because newspapers had become concerned about repeated violations of the laws and difficulty in achieving their goal of open and accountable government.

In 2004 KPA, The Associated Press and journalism schools in the state conducted an "open records audit" by sending strangers to local agencies to request specific records. Nelson, KPA president at the time, said there was "largely a positive outcome, but we did find that there were problems."

Nelson said the "glaring weakness" that remains in the laws is a light penalty for non-compliance. Fleischaker said it is "a very small fine that almost never gets implemented," and "That takes litigation and expense," usually against a public agency that can "go to court at the drop of a hat."

Fleischaker said it is also rare for courts to grant attorneys fees in open-government cases, but noted that the state Cabinet for Health and Family Services was ordered to pay in its dispute with major newspapers and the Todd County Standard about child-abuse fatalities and near-fatalities.

He said the case has "become a procedural nightmare" as the state Court of Appeals considers several procedural questions and the cabinet gives The Courier-Journal and the Lexington Herald-Leader documents that are "being redacted much more than they should be," including "names of people charged in criminal court with murder." He added, "This has nothing to do with children and protection of children; it has to do with protection of people in the cabinet."

Senate kills, House revives moments later a bill that would curtail child services transparency

A bill opposed by the Kentucky Press Association that could increase secrecy at the Cabinet for Health and Family Services died in a Senate committee on Tuesday then was revived minutes later in the House of Representatives.

House Bill 200, legislation sponsored by Rep. Susan Westrom, D-Lexington, was defeated in the Senate Health and Welfare Committee. Moments later, in what Courier-Journal reporter Deborah Yetter reported was a pre-arranged move, she walked to the bill to the House State Government Committee, where it was added to a different bill and passed unanimously.

Critics of the measure, who say it would sharply curtail public access to details of child-abuse deaths and serious injuries, were outraged, saying the bill gives the cabinet more power to withhold information.

“It’s a secrecy bill,” David Thompson, executive director of the Kentucky Press Association, told the Courier-Journal. “They have played right into the hands of the cabinet.”

Media attorney Jon Fleischaker testified the Senate committee about concerns over the lack of transparency the bill has for cabinet oversight, even though supporters were pushing it as a transparency bill. Portions of the bill would allow the cabinet not to release the county where a death or near-death occurred, nor the name of the hospital where the child was taken.

Fleischaker, an author of the state's open government legislation, testified that if this bill had been in force when Amy Dye, a 9-year-old Todd County girl, was killed, the public may have never known about her death, or that a 17-year-old sibling was charged with, and then confessed to, killing Amy. He's now serving a 50-year sentence.

The cabinet has been embroiled in legal action for more than a year over its refusal to turn over records relating to the death of children under its care. Franklin Circuit Judge Phillip Shepherd has ordered the cabinet to disclose its records in those cases while withholding minimal information.

For more on this story, see Deborah Yetter's story here.

Press association opposes family-court bill that would set up prior restraint confrontations

The Kentucky Press Association is opposing a proposal that purports to open the state's family court system but would actually fall far short of that promise.

House Bill 239, which was approved last week without dissent and sent to the Senate, would set up a pilot project in state courts that deal with dependency, neglect and abuse proceedings or termination of parental rights. The press association has for years encouraged the state to open family court to the public and the media.

But KPA Executive Director David Thompson, in an email to the association's members, characterized the project as "more of a closed court, once it's open," and said the proposal clearly would violate the First Amendment prohibition of prior restraint on news coverage.

Under the plan approved by the House, any person – a private citizen or a journalist – attending a hearing would be prohibited from naming any individual involved in the court proceeding or giving any information that would lead to the identity of any individual. That would include identifying a witness who testified at the proceeding. That prohibition would be in force "outside of the court room."

The plan also allows anyone attending the hearing to take written notes, but it gives the judge or court official the right to inspect those written notes before the notes are taken from the court room.

"There is no openness when the public and the media are gagged, and written notes sanitized by court officials," Thompson said.

The Supreme Court of the United States ruled in 1976 in Nebraska Press Association v. Judge Stuart that a judge's order that journalists who attended a preliminary hearing could not report anything they heard until the trial started was an unconstitutional prior restraint.

The court in 1989 in Florida Star v. B.J.F. ruled unconstitutional a Florida law that prohibited the publication of a rape victim’s name by the news media.

"Numerous legislators have referred to opening family courts as a way to give more transparency to the public about issues involving the Cabinet for Health and Family Services. Nothing needs to be said about how important that is. But House Bill 239 has not become that vehicle," Thompson wrote.

Judge orders Cabinet for Health and Family Services to speed up its release of child-abuse records

The state Cabinet for Health and Family Services has been given 90 days to release thousands of pages pertaining to about 180 cases of children who died or were badly injured from abuse or neglect. The order was issued Thursday by Franklin Circuit Judge Phillip Shepherd, who called the cabinet's reluctance to comply with state open records laws an "utter failure," reports Deborah Yetter of The Courier-Journal. The ruling is the latest in the cabinet's fight with the Louisville newspaper and the Lexington Herald-Leader.

Shepherd's ruling replaces a previous order that told the cabinet to release 1,000 pages a week, which it started doing Jan. 27. The documents released so far — which have been "heavily redacted" at the cabinet's discretion and against Shepherd's ruling — represent 15 cases. The cabinet argued it should not be obligated to release the records since it is appealing Shepherd's decision, but the judge rejected that argument. He also said the cabinet had to list reasons for why it was redacting some information "and be prepared to defend them in court after releasing the files," Yetter reports. (Read more)

Judge urges governor to side with openness, says appeal of other judge's ruling is to protect cabinet

A veteran Kentucky circuit court judge has taken issue with Gov. Steve Beshear's recent opinion piece published in a number of Kentucky newspapers that defended his administration's appeal of a court decision that ordered some child abuse records be open to the public.

Judge Tyler Gill, circuit judge in Todd and Logan counties for 17 years, disputes some of the governor's contentions in a column published in The Courier-Journal today. He concludes after his years on the bench that openness and accountability are the better policies.

"Openness should always be the rule where government is involved and secrecy the rare and carefully considered exception to that rule," Gill writes. "I have come to believe that secrecy in courts of law should be eliminated in every adversarial action initiated by any agency of the state. Non-adversarial actions, such as private uncontested adoptions or adoptions after parental rights have previously been terminated, should remain confidential.

He was critical of the governor's support of the state's appeal of a Franklin Circuit Court decision ordering the Cabinet for Health and Family Services to release with minimal redacted information its records of children who died or nearly died while under protection of the cabinet.

"I have also come to believe that confidentiality imposed by our statutes is more often used to hide state incompetence or misconduct than to protect the citizens of Kentucky. Do not be misled. The cabinet’s appeal of the Franklin Circuit Court ruling is not a high-minded effort to protect the privacy of persons who report child abuse. It is to protect the cabinet."

Gill also cited a case he presided over in 2008 in which he said a lawyer for the cabinet was working against the interests of a patient committed to its care. He argued that openness was the only way to make the cabinet accountable for its actions.

"While we can always find some downside to open government, the consequences of government secrecy are far worse. We need only look to the courts and governments of totalitarian regimes such as China, North Korea, Iran or Cuba for this lesson."

He ended by urging the governor to work to open records and not close them. "The governor concluded his article by saying that he would continue to battle in court alongside the cabinet and its lawyers. I urge Gov. Beshear to stop listening to the cabinet’s lawyers and to start battling for the people of Kentucky. Our children deserve an open and accountable government."

Read his full column here.

Health and family cabinet keeps withholding more information on child abuse than judge allowed

The state Cabinet for Health and Family Services released three more death and near-death cases involving child abuse or neglect Friday under court order, but continued to withhold critical information. It has appealed the order.

The 2009 cases involve two babies who died from suffocation while the parents were impaired. A third case involves a 2-year-old girl from Lawrence County, who was injured after she was reportedly kicked in the head by a horse while unsupervised.

The cabinet "continues to withhold, or redact, far more information" than was allowed under the Jan. 19 order of Franklin Circuit Judge Phillip Shepherd, reports Deborah Yetter of The Courier-Journal. Shepherd said the cabinet could withhold the names of children seriously injured by abuse or neglect, names of private citizens who report suspected abuse, the names of minor siblings in the home and the names of minor perpetrators.

But the cabinet is withholding more information than that. "For example, in the case of the girl injured by the horse, the cabinet deleted the name and relationship of the adult who was watching her, even though the adult is named and identified as her grandfather in a separate internal review of the case," Yetter reports. "The cabinet also withheld juvenile and family court records in that case and the names of all adults involved." The girl recovered from the skull fracture sustained by the horse.

Gavin Villarreal never woke up after he was found with a plastic bag over his head in his crib, possibly placed over the 5-month-old's head by other young children in the home. His parents both tested positive for drugs on the day of his death and were convicted. In the third case, a month-old baby died after his father apparently rolled over him in his sleep. Both parents admitted they had been drinking and used marijuana before they went to bed. (Read more)

Legislative committee may review transparency of state cabinet in child abuse death records

The co-chairs of the legislative committee that oversees the state's health and welfare services say they hope to hold a hearing in December about the state's handling of records regarding deaths and near deaths of kids in Kentucky's child-welfare system.

The Lexington Herald-Leader reported Nov. 17 that Democratic Rep. Tom Burch and Republican Sen. Julie Denton, both of Louisville, said they want to hold hearings on whether the Cabinet for Health and Family Services is being transparent in the way it reports deaths and near-deaths of children under its supervision.

The cabinet has lost three open-records lawsuits recently because of its failure to make public its records in the deaths of several children under the cabinet's supervision.

Read more of the story.

Social worker who handled case of murdered child resigns after another child's death

A social worker for the state's Cabinet for Health and Family Services resigned in October before she was fired in the aftermath of a child's death.

The Lexington Herald-Leader reported Nov. 18 that supervisors wanted to fire the employee, citing claims that she didn't fully investigate a June 14 report about a three-year-old girl's arm being broken. According to state records, the supervisors believed the social worker failed to properly investigate allegations of physical abuse of a Christian County girl who died less than a month later. Her father has been charged with murdering her.

The girl, Alayna Adair, died July 2 after being taken to a Nashville hospital. Her father, Charles T. Morris, 22, is charged with murder.

The same social worker, according to state records, also helped handle reports of physical abuse of Amythz Dye, the nine-year-old Todd County girl beaten to death by her adoptive brother in February. Franklin Circuit Judge Phillip Shepherd ruled earlier this month that the state's records regarding her death must be made public. The Todd County Standard filed the lawsuit to obtain access to the records. To read about the judge's ruling in the case, read a report at KyForward.com.

According to the Lexington Herald-Leader, a spokeswoman for Attorney General Jack Conway said the office has been notified of the allegations against the social worker. The spokeswoman would neither confirm nor deny the existence of an investigation. (Read more)

State cabinet loses another open records lawsuit

The state Cabinet for Health and Family Services came under a withering attack from a state judge, who said the cabinet turned a blind eye to repeated reports a nine-year-old girl was being abused at home.

Franklin Circuit Court Judge Phillip Shepherd ruled Nov. 7 the cabinet must release its records involving Amythz Dye, a nine-year-old who, according to court records, was beaten to death by her adoptive brother. Garrett Dye, 17, pleaded guilty on Oct. 21 in Todd Circuit Court to murdering her on Feb. 4 by beating her in the head with a jack handle. When she was killed, Amythz was shoveling gravel as punishment for stealing pudding and juice from a friend’s lunch box at school, according to Shepherd’s order.

Garrett Dye, who was prosecuted as an adult, will be sentenced Nov. 23.

"This case presents a tragic example of the potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny," Judge Shepherd wrote. In his decision, he notes the cabinet received eight reports that the girl had suffered injuries that were suspicious.

"In this case, an innocent nine-year-old girl was brutally beaten to death after enduring months of physical and emotional abuse in a home approved by the Commonwealth of Kentucky for her adoption, notwithstanding a substantiated incident of child abuse in that home prior to her placement there and notwithstanding repeated reports of abuse and neglect later made by school officials to the Cabinet for Health and Family Services prior to her murder."

It is the third time, the second in four days, that Judge Shepherd has ruled for public inspection of documents involving the death of children under the supervision of the cabinet. In all three cases, the cabinet had refused open records requests for the records, arguing federal law required it to maintain confidential records.

But Judge Shepherd ruled, citing congressional records, that the federal legislature never intended to allow state governments to protect their actions from public scrutiny in such cases.

“The Open Records Act is the only method available by which the public and the legislature can obtain information regarding the systematic breakdown of our child protective services that contributed so directly to this child’s death,” Shepherd wrote.

The lawsuit was filed by the Todd County Standard. The weekly newspaper sought records which the cabinet initially indicated did not exist. For the paper's story, click here. The Courier-Journal's story is here.

AG again says Health and Family Services Cabinet violated Open Records Act

The attorney general's office has again cited the Cabinet for Health and Family and Services for failing to following the dictates of the Kentucky Open Records Act. This is the second time this year the attorney general's office has ruled that the cabinet violated the law in response to a request from Elizabeth Coleman, a cabinet employee.

In the Sept. 6 opinion, which has the force of law unless overruled by a state circuit court judge, Attorney General Jack Conway held the cabinet "committed both procedural and substantive violations" by failing to provide an employee with timely access to the records she requested.

Coleman filed a grievance with the cabinet June 10. On July 15, she filed a request under the provisions of the Open Records Act for records related to the grievance. On July 19, the cabinet replied it could not meet the three-day deadline required under the law but expected to fulfill her request by July 27. According to the attorney general's opinion, when Coleman heard no more from the cabinet by Aug. 3, she appealed to the attorney general, an option available to anyone who is denied records.

The cabinet told the attorney general's office it had replied on July 21. Coleman denies receiving a response before she filed the appeal on Aug. 3. In either case, the opinion said the cabinet failed to provide Coleman all the records she was entitled to review. The document she received was a single record indicating the disposition of her complaint, lacking any of the notes or interviews of those involved in reviewing her grievance.

In an opinion issued in April in an almost identical appeal, the attorney general's office ruled "The information to which she requested access is contained in the records reviewed and/or generated in the course of the investigation that resulted from the grievance she filed. She is entitled to inspect and copy “any record,” including investigator’s notes, that relate to the investigation. The cabinet’s refusal to allow her access to these records constituted a violation of the Open Records Act."

The cabinet can appeal the ruling to Franklin Circuit Court within 30 days to keep it from becoming final.

Newspapers push fight against state cabinet

The state's two largest newspapers wasted no time in pushing their case for a judicial order forcing the Cabinet for Health and Family Services to provide records about the deaths or abuse of children under the cabinet's supervision.

The Courier-Journal and the Herald-Leader filed a motion in Franklin Circuit Court asking Judge Phillip Shepherd to order the cabinet to release the records after U.S. District Judge Danny Reeves on June 1 denied the cabinet's motion to move the issue to federal court.

The motion filed by the newspapers asks Judge Shepherd to order the records to be made public, records similar to those the judge declared were public records in May 2010. They also ask that the court nullify emergency orders the cabinet issued to try to circumvent the judge's ruling. Rather than appealing Judge Shepherd's decision ordering the release of some records, the cabinet wrote orders to limit what records it will release concerning the death or abuse of a child under the cabinet's protection.

In December Courier-Journal reporter Deborah Yetter filed an open records request for records related to the deaths of two children under the cabinet's supervision. The cabinet told Yetter it needed 30 days to determine whether the records she sought existed even though the state's Open Records Act gives an agency three days to make that determination. In January, Herald-Leader reporter Bill Estep made a request for records relating to the death of any child under the cabinet's supervision that had died during Fiscal Year 2010, and the cabinet denied Estep's request as being burdensome.

At that point the newspapers filed suit again. The cabinet responded by trying to move the case to federal court, a move that failed.

Federal judge rules for newspapers, returns fight over child death records to state court

A federal judge has ruled against the Cabinet for Health and Family Services in its continuing battle with two Kentucky newspapers over the cabinet's records of child abuse deaths and injuries.

U.S. District Judge Danny Reeves issued his order June 1 remanding the lawsuit to state court, where The Louisville Courier-Journal and The Lexington Herald-Leader had filed it. The cabinet had filed a motion to move the case moved to federal court.

At stake is access to records Franklin Circuit Court Judge Phillip Shepherd has already declared are public records.

In May 2010, Judge Shepherd ruled that the state Open Records Act did not allow the cabinet to shield from the public its records of the death of a child who was under the supervision of the cabinet. The case involved the death of a Somerset toddler who drank drain cleaner. He and his mother, then 14, were both under the supervision of the cabinet.

After Shepherd's ruling, the newspapers sought cabinet records involving other deaths. When the cabinet denied their requests, the newspapers filed suit in Franklin Circuit Court. The cabinet issued emergency regulations that would limit what records the state would have to make public and then filed a motion to move the case to federal court.

Judge Reeves, however, denied the cabinet's motion and returned the case to Judge Shepherd. "The Franklin Circuit Court aptly defined the contours of the Open Records Act as it relates to child protection cases," the order said, then quoted from Judge Shepherd's 2010 decision: “Under the Kentucky Open Records Act, the public records related to the death of a child under the protection of the state foster care system are open to public inspection."

The newspapers will file a motion asking Judge Shepherd to order the cabinet to release the records. (Read more)

States can't reveal drug costs because federal law makes them secret; Montana governor blames drug lobby, Ky. contractor

When Montana journalists asked Gov. Brian Schweitzer to reveal the prices the state pays for drugs in government health care programs, he said he wanted to tell them, but had to refuse because federal law keeps the information secret. Congress is "bought and paid for" by drug manufacturers, said Schweitzer, a conservative Democrat with a maverick streak. "Congress has created a system so that even the states, which buy tens of millions of dollars worth of these drugs, have no idea what we pay on a per-unit basis."

"Actually, Schweitzer does know what the state pays — but, before acquiring the information last summer, had to have his chief counsel sign a written agreement not to disclose it publicly," Mike Dennison of the Billings Gazette reports. "Schweitzer said the drug industry wants to keep secret the rebates it gives to states buying drugs for public programs, because it doesn't want regular retail customers to know how much more they're paying for drugs."

Schweitzer obtained the information last summer when he was trying to compare what the federal-state Medicaid program for the poor and disabled was paying for drugs compared to the cost in Canada. Montana news outlets argued that the state open-records law requires him to release "documents in his possession that list public money paid out or received by the state," Dennison reports. But the governor's chief legal counsel "said federal law bars disclosure of the information requested by the news organizations, and that federal law pre-empts Montana's open-records laws."

Also, "Magellan Medicaid Services, the Virginia-based contractor that negotiates additional drug rebates for the state Medicaid program, also claimed that the rebate information is a trade secret protected from public disclosure," Dennison reports. MMS, which works for several states including Kentucky, said revealing the information would hamper its ability to compete with other companies doing the work." It seems to us that if all such information from all states were released, that wouldn't be a problem.

Courts rule against two state agencies

Two Kentucky courts have made pro-transparency rulings recently.

Franklin County Circuit Judge Phillip Shepherd has awarded attorney's fees and court costs to the Lexington Herald-Leader and the Louisville Courier-Journal in a case against the Cabinet for Health and Family Services.

The papers had asked for records related to the death of Kayden Daniels, a toddler under "custody and control" of the cabinet when he died at an alleged meth lab. The court, which had earlier ruled the records had to be released under the Open Records Act, in this follow-up decision took issue with the cabinet's blanket refusal to release individual child fatality reports, labelling it a "willful" and intentional violation of the law. "A party requesting public records who prevails in a judicial action ... at a minimum, should be made whole ... when the denial of access is an intentional policy of the agency rather than administrative oversight, bureaucratic confusion, or negligence," the ruling said. It awarded the two papers a total of $20,737.69 in fees and costs. (Kentucky circuit court decisions are available online only to lawyers and state and local officials, so no link could be provided).

"The court recognizes that the Open Records Act is there for the good of the public as a whole," said media attorney Jeremy Rogers, who represented the Courier-Journal in the case. "This opinion acknowledges the reality that court cases to protect rights under the Open Records Act can be costly. However, the court has properly viewed the law’s provision for attorneys’ fees as an incentive for public agencies to comply with the law and as an incentive for members of the public to vindicate the public’s right to know. As the court wrote, '[w]ithout the provision for statutory attorneys fees, public officials would have a great incentive to deny valid open records requests secure in the knowledge that few, if any, parties will be willing to assume the burden of legal fees necessary to challenge such decisions in court.'"

In a separate case, the state's Supreme Court ruled against the Department of Revenue, which in several instances involving a tax refund appeal had refused to release records in a case filed by Mitzi Wyrick on behalf of Gannett Satellite Information Network, Inc. The department had cited the "civil litigation limitation" on the release of information, which provides for special exceptions in ongoing lawsuits. However, the Supreme Court ruled in this case the department did so in error. "The civil litigation limitation is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n). It is not an exception to an agency's duty to disclose nonexempted records. And it does not allow a court to prevent disclosure of records available to the general public simply because the requesting party is involved in litigation against a public agency," the ruling said. (For the full text, go to http://apps.courts.ky.gov/supremes/sc_opinions.htm, then search 2008-SC-000468-DG.pdf.