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 says UK should release records on pediatric heart surgery program, which is under review

Attorney General Jack Conway has ruled that the University of Kentucky hospital violated the state Open Records Act by refusing to give a reporter for the university-owned radio station records relating to the work of the chief of cardiothoracic surgery, who has stopped doing surgery on children. UK refused to let Conway's staff examine the records to evaluate UK's claimed need for confidentiality.

After inquiries by Brenna Angel of WUKY, "UK announced that the hospital had stopped performing pediatric cardiothoracic surgeries pending an internal review," John Cheves writes for the Lexington Herald-Leader. Angel reports that she sought records on Dr. Mark Plunkett, left, who was also director of the pediatric and congenital heart program: "the date of Plunkett’s last surgery, the mortality rate of pediatric heart surgery cases, and documentation related to the program’s review." She sought no patient-specific data.

UK denied her request, citing the federal Health Insurance Portability and Accountability Act and arguing that release of the information could lead to the identification of one or more patients because Plunkett was doing so few surgeries on children. It also cited HIPAA in refusing to let Conway's staff review the records. Conway rejected that argument, noting that HIPAA does not supersede state laws and even make allowances for them.

Because it deals with the Open Records Act, Conway's decision has the force of law. UK can appeal the decision to circuit court within 30 days of March 27, the date of the decision. "UK spokesman Jay Blanton says officials are considering whether to file an appeal," Angel reports. The decision was publicly released Monday, the same day UK held a press conference about "the progress UK Healthcare has made in cardiology," she notes. "Yet the pediatric cardiothoracic surgery program remains under review, and patients from Central and Eastern Kentucky are being referred to hospitals out of state. Dr. Mark Plunkett remains on staff."

When Angel asked Dr. Michael Karpf, UK's executive vice president for health affairs, to comment, he replied, “We’ll have something to say about that in a little while.” Cheves notes, "UK recruited Plunkett, a noted surgeon at the University of California at Los Angeles, in 2007 to strengthen its pediatric heart program. He makes $700,000 a year, one of the highest salaries at UK." (Read more)

Read more here: http://www.kentucky.com/2013/04/01/2582150/uk-violated-open-records-law-in.html#storylink=cpy

Read more herehttp://www.kentucky.com/2013/04/01/2582150/uk-violated-open-records-law-in.html#storylink=cpy

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)

Judge closes hearing in case involving mother accused of sexualizing 6-year-old at pageants

A judge in Campbell County closed a hearing in a high-profile child custody case Saturday and put a gag order on the mother, who had "claimed that her ex-husband was using [her daughter's] participation in child beauty pageants as a reason for the court to award him full custody," reports Meaghan Murphy of WXIX-TV. Family Court Judge Rick Woeste also ordered that 6-year-old Madisyn "Maddy" Verst and her mother could not participate in any pageants "until further notice," Murphy reports. The proceedings are to resume Aug. 31.

Maddy's "saucy shake and shimmy landed her on the cover of People magazine, with the headline asking, 'Gone Too Far?'," Murphy reports. A court-appointed psychologist said the mother, Lindsay Jackson, was sexualizing her daughter. Jackson denied that, saying the child's padded Dolly Parton outfit on the "Toddlers and Tiaras" TV reality show on TLC was "designed to represent our state. Dolly’s from Tennessee. . . . I shouldn’t be at risk of losing my child simply because she participates in a hobby that some people don’t like." (Read more) For a Fox News report and talking-heads debate aired before the recent hearing, click here.

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."

Bill that would limit release of child-abuse information appears to be dead with one day left

A bill that could increase secrecy of child-abuse records at the Cabinet for Health and Family Services failed to win passage on the next-to-last day of the legislative session and appears to be dead. "Senate Majority Leader Robert Stivers, a Manchester Republican, said some senators had questions about the bill and it appears unlikely to pass," Deborah Yetter of The Courier-Journal reports.

Senate Bill 126, originally a social-work licensing bill, includes in its Section 10 provisions of House Bill 200 to "create an outside panel of experts to review child deaths and serious injuries, with the goal of better detecting those that result from abuse or neglect. It also would create an outside office to review continuing operations of the state’s child welfare system," Yetter writes. "And it would clarify the definition of child abuse to spell out that any adult living in the home or a sibling older than 16 could be considered a perpetrator of abuse.

The bill would also limit what the cabinet must disclose about child-abuse deaths and serious injuries as a result of child abuse, so the Kentucky Press Association lobbied against it. One portion of the bill would prohibit the cabinet from releasing "the name or any identifying information of a child who has suffered a near fatality, or any information on a sibling or children living in the home of the child who suffered a fatality or near fatality," which is defined as an injury that places a child in serious or critical condition.

KPA counsel Jon Fleischaker, chief author of the state Open Records Act, testified before a Senate committee that if the measure had been law when Amy Dye, a 9-year-old Todd County girl, was killed by her adoptive brother, the public may have never known about her death, or that the brother confessed to killing her.

Westrom told Yetter the cabinet insisted on the language. 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, and the cabinet has appealed. For Yetter's story, click here.

Cabinet appeals judge's order that it pay civil penalties and newspaper's legal fees

The state Cabinet for Health and Family Services has appealed a judge's order telling it to pay more than $6,000 in civil penalties and nearly $10,000 in attorney fees for acting in bad faith in resisting release of files related to Amy Dye, the 9-year-old Todd County girl who was murdered by her foster brother last year.

Franklin Circuit Judge Phillip Shepherd ruled that the Todd County Standard was entitled to the fees and fines because the agency violated the state Open Records Act. "That ruling and others like it for the Louisville Courier-Journal and Lexington Herald-Leader are thought to be the first time a state agency had been fined for violating the open record laws since they were adopted in the 1970s," the Standard reports.

"The agency at first denied even having any records on Dye then said it did not have to give the records to the Standard because Dye was killed by a sibling and not a parent," the paper notes.

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)

Beshear and child-welfare officials appeal records decision, say it is too broad, look to legislature

On the day the state was supposed to release unadulterated records on deaths and near deaths from child abuse, under a court order, it filed an appeal to stop the process. And though Gov. Steve Beshear had ordered the Cabinet for Health and Family Services to release the records, yesterday he sided with its officials, saying in an op-ed piece sent to Kentucky newspapers he did not "think the judge's order was protective enough" of informants who often want to remain secret, such as relatives, health-care providers, teachers and law-enforcement officials. (Getty Images photo)

“You teach in a small community and suspect a student is being abused,” Beshear wrote. “Can you come forward without the newspaper naming you as the accuser?" Jon Fleischaker, attorney for The Courier-Journal and the Kentucky Press Association, said Beshear was “fear-mongering,” and noted that Shepherd’s order to release records applies only in cases in which children were killed or nearly killed from abuse or neglect, following a state law designed to hold the cabinet accountable for its child protective services.

Beshear wrote, “The cabinet has been accused of 'operating under a veil of secrecy' in a supposed attempt to protect inept workers and a poorly designed system. But this is not about shielding the system from scrutiny. We understand the need to be more transparent than in years past.” The legislature may decide the issue, because Beshear said legislation is needed to clarify the extent of confidentiality, and House Health and Welfare Committee Chairman Tom Burch, D-Louisville, agreed.

In December, the cabinet handed over 353 pages of records, but the names of at least eight children who died from abuse or neglect had been redacted, along with all the names of children who had been seriously injured, as well as much other information. The Courier-Journal, the Lexington Herald-Leader and the Todd County Standard had sued the cabinet for refusing to release the records. Twice before, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to turn them over. Last week, Shepherd fined the agency $16,000 for its secretive treatment and delays. He also found the cabinet should pay more than $57,000 in legal fees for the newspapers. (Read more)

Yesterday, the cabinet filed its motion with the state Court of Appeals and "asked the court to block Shepherd's Jan. 19 order to release records, starting today, with limited redactions," reports the C-J's Deborah Yetter. In the meantime, the cabinet released about 90 internal reviews of child deaths and serious injuries incurred by abuse but with deletions it feels is necessary "to protect the best interests of the state's child welfare system," its motion read. (Read more)

Journalists, child-protection officials debate their differing approaches to Ky. child abuse problem

In a state that has led the nation in deaths of children from abuse and neglect, Kentucky journalists and the officials who must protect children agree that more public attention needs to be focused on the issue.

But they don’t agree on how to do it, and have been fighting expensive battles in court over it, because their professions have sharply divergent views on what kind of information the state should have to release.

“The profession of social work is based on confidentiality,” the state’s top child-protection official told reporters, editors and publishers during a panel discussion at the Kentucky Press Association convention in Lexington Friday afternoon.

Confidentiality “was drilled into us just as openness was drilled into you” in professional education, said Teresa James, who became acting commissioner of the Department for Community-Based Services in December after 25 years as a social worker. “Just as passionate as you are about the First Amendment, I am passionate about confidentiality.”

Social workers argue that without being able to assure informants of confidentiality, the system that protects children won’t get some of the information it needs.

But journalists, their employers and their lawyers say the state has been much more secretive than the law allows about cases in which children died or nearly died, circumstances in which state law makes otherwise confidential information available. (Read more)

Making agency more open gets top priority from attendees at Ky. Summit to End Child Abuse Deaths

"Eliminating secrecy at the Cabinet for Health and Family Services was the top vote-getter" among 250 "judges, lawmakers, child advocates and social workers" in a packed house at the Kentucky Summit to End Child Abuse Deaths yesterday in Louisville, reports Deborah Yetter of The Courier-Journal.

The top recommendations, as listed by Linda Blackford of the Lexington Herald-Leader, were to increase:
 Improve transparency and accountability at the cabinet;
 Increase funds for proven and effective services such court appointed advocates, substance abuse programs, in-home services and parent advocate programs;
 Increase funds for additional social workers and support;
 Improve the system of collaboration among agencies involved in the child welfare system.

"Transparency and accountability became big issues after the Herald-Leader and The Courier-Journal sued the state to get access to case files of children who have died or nearly died as a result of neglect and abuse," Blackford notes in her story.

Jon Fleischaker, left, and Dr. James J. Clark,
associate dean for research at the University
of Kentucky College of Social Work

Top Kentucky news-media lawyer Jon Fleischaker said it was details of the case of murdered Todd County 9-year-old Amy Dye — details "that the cabinet first denied it had, then fought to keep secret — that helped galvanize public outrage over shortcomings of the child welfare system," Yetter reports, quoting Fleischaker: “There is a culture of secrecy that deprives the public of all information. If the public doesn’t know about it, good luck on getting more funding.”

Cabinet Secretary Janie Miller "gave a brief luncheon speech at the summit, saying her agency welcomed the work of the summit," Yetter reports. "Afterward, in an interview, Miller declined to comment on the litigation over access to child abuse records between the cabinet and the state’s two largest newspapers." (Read more)

"Any bill that Kentucky lawmakers pass in the name of children should uphold the spirit and the letter of the state’s open records law," The Courier-Journal says in an editorial.

Judges like bill to open juvenile courts, but it would make reporters' notes subject to inspection

Family Court judges told a legislative committee yesterday that Kentucky's juvenile courts should be made open, to improve scrutiny of the state's bedraggled system of child protection, and endorsed a bill to start that. But the state's leading news-media lawyer, who has been fighting to open the system, objected to a provision in the bill that would make notes taken by anyone in court subject to inspection by the judge. For the story from Beth Musgrave of the Lexington Herald-Leader, click here.

Child-abuse records were opened in 1990s

Though it made big, breaking news last week, releasing state records about severe child abuse isn't new in Kentucky, writes Joseph Gerth, right, in a column in The Courier-Journal.

"During Gov. Brereton Jones' term in office from 1991-1995, the state social-work agency released child-fatality reports on its own," he writes. "That came after an earlier tragic death of a child in Wayne County who was beaten to death by his stepfather after numerous contacts with state social workers."

Gerth's column comes after last Tuesday's announcement by Gov. Steve Beshear that he ordered the Cabinet for Health and Family Services to release records pertaining to children who have been killed or nearly killed as a result of abuse or neglect. "Transparency will be the new rule," he said.

Gerth said Beshear "finally gave in to mounting pressure from the media, an angry judge and frustrated legislators to release the records involving the death of a Wayne County toddler who drank drain cleaner that was allegedly being used to produce methamphetamine," Gerth writes. The C-J and the Lexington Herald-Leader had long been suing the cabinet to release documentation pertaining to the case and Franklin Circuit Judge Phillip Shepherd had twice ruled the cabinet do so.

In the 1990s, it was then-cabinet Secretary Masten Childers II who ordered that child-fatality records be released. "The reports showed that the agency wasn't doing its job and that low-paid social workers were stretched thin and handling too many cases," Gerth writes. "Jones ultimately called for raising the pay for the lowest-paid social workers ... and he called for hiring 60 more social workers across the state. Could it have been that Childers believed more in openness than the current secretary, Janie Miller?" (Read more)

Small, weekly newspaper beats stonewalling state agency in case of adopted child's murder

When a 9-year-old girl was found beaten to death and her adoptive brother was charged with murder, the local newspaper wanted to know what the state child-welfare agency had done, or not done, with the family in the four years Amy Dye, left, had been placed there. The Kentucky Cabinet for Families and Children stonewalled the Todd County Standard, but the small, weekly newspaper fought in court and a judge found that the agency had violated the state open-records law -- and prevented further stonewalling on appeal by putting the records in his ruling.

The records paint "deplorable picture of what happens when those who are assigned to protect a child fail," Editor-Publisher Ryan Craig wrote in his Nov. 9 paper. Franklin Circuit Judge Philip Shepherd of Frankfort "said that Amy was put in the Dye home despite there being a 'substantiated' incident of child abuse prior to her placement" and the case is an "example of the 'potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny'," Craig wrote.

In his Nov. 16 edition, Craig reported that a closer look at the records showed "that the cabinet made a choice within a few days of Amy Dye’s death and a day after the Standard filed an open records request to declare the scope of the investigation in a way that would keep the files from becoming public," by classifying its probe as a "neglect investigation" instead of a "fatality investigation," which by law must be public. His story noted that "Officials with the Cabinet delayed nearly two weeks — violating open-records laws — before even responding to the Standard’s initial request for records. Then when the Standard received a response, it was told there were no files whatsoever on Amy Dye."

The Standard is not online, but we have posted PDFs of its Nov. 9 front and jump pages here and here and its Nov. 16 pages here and here. The photo of Amy is from The Courier-Journal of Louisville, which reported on the case in detail today. For the story by Deborah Yetter, go here.

Judge rules against state, cites 'culture of secrecy' in ruling opening records in child abuse deaths

A state judge has ruled for the second time in 18 months against the efforts of the state Cabinet for Health and Family Services to keep records of the deaths of children in its care hidden from public inspection.

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.

Family-services cabinet gets a runner-up national Black Hole Award for secrecy

The state Cabinet for Health and Family Services' insistence on secrecy about deaths of childred for which it has responsibility has made it a runner-up in the Society of Professional Journalists' new Black Hole Award. SPJ says it created the award "to highlight the most heinous violations of the public's right to know." The award went to the Utah Legislature, which excluded electronic records from the state open-records law.

SPJ says the cabinet "has embarked on a campaign of obfuscation aimed at preventing the public from learning the details about the death of a toddler under the cabinet’s supervision. . . . The infant died in May 2009 after drinking drain cleaner at what police have described as a methamphetamine lab." SPJ notes that the cabinet "has a blanket policy of refusing to disclose all information in child abuse and neglect cases" and quotes Franklin Circuit Judge Philip Shepherd, who said its bias in favor of confidentiality seems to be driven more by the culture of the agency, "which seeks to avoid public scrutiny," than by the law.

The cabinet failed to conduct an internal review of the death, as required by law. The Courier-Journal and the Lexington Herald-Leader asked Shepherd to require the cabinet to produce related records; most of what the cabinet produced was redacted, and the judge ordered it to return with the entire unredacted record so that he could decide what would be released. Then the cabinet issued emergency regulations with the force of law to restrict access to such records. The papers filed suit again, asking Shepherd to strike down the regulations and order the cabinet to release the records. The cabinet has petitioned to move the lawsuit to federal court, arguing that federal law prohibits the cabinet from releasing information about children who die in its care. SPJ asks, "What is more egregious than a state government refusing to provide answers to the people of the state about the death of a child in its custody?"

Bill would create panel to review deaths and near-deaths of children in state care; change promised for accountability, transparency

The House Health and Welfare Committee approved a bill Thursday to "create a panel to review deaths and near-deaths of children who are neglected or abused while under the state’s supervision," the Lexington Herald-Leader reports.

The vote was unanimous, but some committee members "said they would not support the bill on the House floor unless it was amended to provide more transparency," Beth Musgrave writes for the newspaper. The bill's sponsor, committee chairman Tom Burch, D-Louisville, left, "told the committee that he was going to offer a floor amendment that would ensure the records of the panel would be available to the public."

Burch's House Bill 441 "would exempt the panel from disclosing its conversations and documents regarding neglected and abused children," and that would make the state child-care system more secret than it is today, argued Jason Nemes, a lawyer for the Kentucky Press Association. “It removes the transparency that we have today,” he said.

For several months, the cabinet has fought in court to keep the Herald-Leader and The Courier-Journal from reviewing records of children who have died when the state was supposed to be looking after them. After a judge ruled in favor of the newspapers, the cabinet issued an emergency regulation that "limits the release of information about the actions of child protection workers in cases involving children who are killed or severely injured because of abuse and neglect," Musgrave writes.

The papers are in court again, challenging the cabinet's refusal to release certain records. This week, the cabinet asked that the lawsuit be moved to federal court, arguing that federal law prohbits the release of such information. (Read more)

Key lawmaker, advocacy group back opening records of severe child abuse and neglect

Kentucky, which leads the nation in deaths of abused and neglected children, should open its records in such cases and those involving severe injuries, the chairman of the state House Health and Welfare Committee and the head of Kentucky Youth Advocates said yesterday.

"State Rep. Tom Burch, D-Louisville, said Friday he will introduce legislation in the 2010 General Assembly that would require state child-protection officials to release their records on children who died or were severely injured as a result of abuse or neglect," reports the Lexington Herald-Leader. Burch told the newspaper that it's possible state employees "didn't do their job right or they had heavy caseloads and didn't have time to look at the case sufficiently."

House Speaker Greg Stumbo told the paper, ""The House is more than willing to look for ways to make life safer for our youngest citizens, and if Rep. Burch believes this is an effective approach to take, I expect the chamber will be supportive of his efforts." Stumbo and Burch are Democrats; the Senate is controlled by Republicans, and Senate President David Williams said he would have to see the legislation before commenting.

KYA Executive Director Terry Brooks, said his group would support the bill and a separate measure to open at least some proceedings in Family Court. "The current undue emphasis on confidentiality only hides issues in the child-welfare system," he told the Herald-Leader. "Broader public exposure is a beginning step to fixing many of the issues that afflict child protection. It is a tough proposition but the right balance can be found between privacy rights, system accountability and disclosure for the sake of system improvements." (Read more)