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)

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.