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.

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)

UK hosts annual First Amendment Celebration

An award-winning investigative reporter, author and journalism professor will deliver the annual State of the First Amendment Address at the University of Kentucky Tuesday, Nov. 15.

Mark Feldstein, author of "Poisoning the Press," is the featured speaker at the annual First Amendment Celebration sponsored by the Scripps Howard First Amendment Center and the UK School of Journalism and Telecommunications.

Feldstein worked as an on-air investigative correspondent at CNN, ABC News, and several local television stations during a 20-year career. For his work, he won the Edward R. Murrow broadcasting prize and two George Foster Peabody medallions.

And for his work, he was beaten up in the United States, detained and censored by government authorities in Egypt, and escorted out of Haiti under armed guard. His exposes led to resignations, firings, multimillion-dollar fines and prison terms.

Feldstein’s 2010 book, "Poisoning The Press," documents the bitter relationship between Jack Anderson, a journalist whose column damaged and destroyed political careers, and President Richard Nixon. Feldstein was once an intern for Anderson, whose column, "Washington Merry Go-Round," was immensely popular. The book has received widespread critical acclaim and earned top academic awards for research.

Feldstein is a graduate of Harvard and earned his doctorate at the University of North Carolina at Chapel Hill. He is the Richard Eaton Professor of Broadcast Journalism at the University of Maryland.

Feldstein has been published in numerous peer-reviewed journals; he has also won awards for his scholarship from the American Journalism Historians Association and other academic organizations. He is widely quoted as a media analyst by leading news outlets in the United States and abroad, and has testified as an expert witness on First Amendment issues in court cases and before Congress.

The State of the First Amendment Address will be given in Room 106 of the White Hall Classroom Building. The program begins at 5:30 p.m., Tuesday, Nov. 15, and is free and open to the public.

At the celebration, Al Smith will be presented with the annual James Madison Award for Service to the First Amendment. Smith, a Kentucky editor and publisher, founded and hosted Kentucky Educational Television’s “Comment on Kentucky” program, a weekly discussion of public affairs.

The Scripps Howard First Amendment Center, housed in the university’s School of Journalism and Telecommunications, seeks to promote understanding of the First Amendment among citizens of Kentucky, to advocate for First Amendment rights in the Commonwealth and nationally, and to produce internationally recognized scholarship concerning the First Amendment and its related freedoms.

Al Smith to receive James Madison Award

Al Smith, who created "Comment on Kentucky," a statewide forum that has fostered public discussion of Kentucky policy and politics, has been chosen the 2011 recipient of the James Madison Award for service to the First Amendment.

Smith will receive the award on Tuesday, Nov. 15, at the annual First Amendment Celebration held by the Scripps Howard First Amendment Center and the University of Kentucky School of Journalism and Telecommunications.

The award is presented annually to a Kentuckian who has made a significant contribution to the values embodied in the First Amendment's guarantee of freedom of speech and of the press. During his distinguished career, Smith was a tireless advocate for open government as a newspaper editor, publisher and industry leader, and television program producer.

“Throughout his distinguished career, Al Smith has promoted and fought for the values that embody our treasured freedoms of expression," Mike Farrell, director of the Scripps Howard First Amendment Center, said. "His life’s work, as a faithful steward of the First Amendment, has enlightened citizens, invigorated our public discourse and held the powerful accountable. Kentucky has been blessed because Al Smith made the state his home and because journalism was his calling.”

"Comment on Kentucky,” a public affairs program broadcast on Kentucky Educational Television each Friday, debuted in November 1974. Smith was its host, discussing with a panel that included journalists, professors and other experts important issues to Kentucky, until he retired 33 years later.

Smith, of Lexington, is the author of a memoir, Wordsmith: My Life in Journalism, which was published this month.

The Madison Award was created by the Scripps Howard First Amendment Center in 2006 and is awarded annually to a Kentuckian who has made significant contributions to the efforts of a free press or freedom of speech. Smith is the sixth recipient.

The Madison Award will be presented at 5:30 p.m. on Nov. 15. Mark Feldstein, former investigative reporter for CNN and ABC News, will then deliver the State of the First Amendment address. The event is free and open to the public in Room 106 of the White Hall Classroom Building on the UK campus.

Greenup sheriff fails to answer records request; that's ruled a violation of state law

The Greenup County Sheriff's Department has violated the Kentucky Open Records Law by failing to respond to a request for records.

On September 16, 2011, John M. Smith submitted an open records request to the sheriff’s department for evidence log sheets relating to a specific case. The department did not respond to Mr. Smith’s request, and on October 3 Mr. Smith filed an appeal to the Office of the Attorney General. The sheriff’s department had yet to respond to Mr. Smith’s request for evidence log sheets or this appeal when the attorney general issued its opinion on Nov. 3.

That inaction violates the Open Records Law, which reads "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision."

The attorney general's opinion stated public agencies such as the sheriff's department are not permitted to elect a course of inaction and ordered the Greenup County Sheriff’s Department to provide Mr. Smith with copies of his request unless the department can provide him, in writing an acceptable legal basis to deny the requests.

UK's refusal to release cancer registry data violates Open Records Act

The University of Kentucky violated the Kentucky Open Records Act in denying Dr. James W. Coleman’s August 1, 2011, request for “statistical information on female breast cancers in Jefferson County,” according to a recent opinion of the Attorney General's Office.

In response to the request, Official Records Custodian Frank Butler advised Dr. Coleman that the “Kentucky Cancer Registry does not maintain the data you have requested in the format you have requested, he [Dr. Coleman] may apply for a dataset as described on the…website, and that KCR records are confidential by statute.”

The attorney general found UK’s reasons for the denial flawed. The opinion, dated Nov. 1, stated that, a “database is unquestionably a ‘public record’ as that term is defined in the Open Records Law. Dr. Coleman’s request sought information from the Kentucky Cancer Registry, which UK maintains by incidence and mortality rates for more that 70 cancer sites in the state.

The university’s first ground for the denial was that it could not sort the data by zip code and thus could not respond to the request. The attorney general rejected this argument because “UK is not statutorily required to tailor the format of its existing database to conform to the parameters of a request submitted under the Act; however, the alternative is generally to provide a requester with a copy of the entire database after those fields of information for which statutory protection exists, if any, have been redacted.”

The second reason was that UK told Dr. Coleman he could apply for a data set online. This argument was rejected by the attorney general because of KRS 61.874(3), which states that “if a public agency is asked to produced a record in non-standardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred.” While this provision is discretionary the other option is to release the entire database. If UK did not want to sort the information requested by zip code then it was supposed to release the whole database in order to let Dr. Coleman sort it himself.

The third reason UK cited was that all cancer registry data is confidential under state law. The attorney general's opinion rejected this argument as well, restating what it had held in a 2004 opinion, the “prohibition on disclosure of data is not … absolute, but is instead confined to data identifying any person whose condition or treatment has been reported to the (Kentucky Cancer Registry.)”

Since the attorney general rejected all of the university’s reasons for the denial, and the university could not provide more detailed information on how the database is maintained, the attorney general found that UK did violate the Open Records Act by refusing to provide Dr. Coleman with access to responsive data that did not describe or identify a particular person. An Open Records Opinion of the Office of Attorney General has the force of law unless appealed to circuit court.

Butler County loses another Open Meetings appeal

Butler County Fiscal Court has violated the Open Meetings Law again; this time, the court failed to distribute an agenda to fiscal court members for its September 14 special meeting 24 hours before the meeting.

The Open Meetings Law requires public agencies to deliver a special meeting notice consisting of the date, time, and place of the special meeting and the agenda for the special meeting at least 24 hours before a special meeting.

In this case, fiscal court members received a copy of the agenda minutes before the meeting began. The fiscal court argued that this was a mere technical violation because there was reference to the special meeting on the September 12th regular meeting agenda. The fiscal court, through County Attorney Richard J. Deye, reasoned that this reference gave adequate notice of when the special meeting would be and what its purpose was.

In its response issued Nov. 1, the Office of the Attorney General restated two important principles:

"The [Open Meetings] Act does not recognize a class of violations of lesser gravity than the remaining violations and therefore capable of being dismissed as merely “technical.”

“The failure to comply with the strict letter of the law in conducting meetings of a public agency violated the public good.”

In a letter to the attorney general, County Attorney Deye argued, “[t]he only provision of the Open Meetings Law that was violated is that the magistrates did not receive a piece of paper twenty-four hours in advance . . . . One must struggle to discern how the actions of the Butler County Fiscal Court compromised the citizens of Butler County.”

The attorney general's office answered that claim in the opinion, "Neither this office nor the Butler County Fiscal Court need 'struggle to discern' how the interests of the citizens of Butler County were compromised by the Fiscal Court’s failure to comply with the express requirements of the Open Meetings Law. The law recognizes harm any time an agency acts in derogation of these requirements regardless of how inconsequential its actions may appear to the agency."

The opinion also noted that the law does not empower the attorney general to impose fines or negate actions because of Open Meetings Law violations, but the law does allow a circuit court judge to impose penalties.

Broad request for cell phone information is denied

The Lexington-Fayette Urban County Government Division of Police properly denied a request for copies of cell phone records, according to an opinion of the attorney general's office.

The documents sought pertained "to the ability of law enforcement officers to obtain records from cell phone companies that reveal the past or present travels of cell phone users” over a two and a half year period.

The division reasoned that this request was overly burdensome as it could not accurately estimate the number of records encompassed by the request and that it would cause division personnel to manually search more than a thousand case files and more than a million e-mails.

The attorney general's opinion on Nov. 4 agreed with the division and stated that the scope of the request “represents an impediment to access and that the volume of record implicated by the request magnifies the possibility of harm to open investigation/enforcement action through inadvertent disclosure of protected matter.”

Tax payments plans deemed open records

The Attorney General's Office ruled on Oct. 31 against the Marshall County Attorney’s failure to disclose records relating to delinquent property tax payment agreement plans.

Marshall County Attorney Jeffrey G. Edwards denied a citizen’s request to view the records based on the fact that these tax payment plans contain confidential information about the taxpayer and the agreements were not fully discharged and therefore preliminary.

The county attorney said he relied upon exemptions in the Open Records that protect preliminary drafts and public records made confidential by the General Assembly, citing the privacy of tax returns.

The attorney general's office disagreed with Mr. Edward’s application of the law to tax payment agreement plans. The opinion, which has the force of law unless appealed to circuit court, explained that “these prohibitions do not extend to any matter properly entered upon any assessment record, or in any way made a matter of public record .... and therefore, the payment plans do not afford protection under these statues nor can they be considered preliminary drafts.

Given that delinquent property taxes become a public record when the county clerk records a lien for the amount owed and publishes a notice of all delinquencies in the newspaper, the attorney general's opinion explained that delinquent taxpayers therefore do not have a reasonable expectation of confidentiality in the information contained in the payment agreement.

Additionally, the county attorney’s authority to make these payment agreements is a matter of public interest; the public has a right to monitor the operation of the government, which clearly encompasses the county attorney’s collection duties.

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.

Hospital appeals attorney general's ruling

University Hospital of Louisville has filed a lawsuit in Jefferson County Circuit Court to overturn an open records opinion of Attorney General Jack Conway that the hospital is a public agency under the Kentucky Open Records Act.

The attorney general's opinion issued Oct. 5 declared University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." The university has argued University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal.

Conway's ruling could affect the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System. If the court upholds the attorney general's opinion, the state will have a say in the merger. The ruling means the documents pertaining to the merger itself would have to be made public.

Because it deals with an open-records issue, Conway's opinion has the force of law unless overturned in court, which resulted in the hospital's lawsuit.

According to the Courier-Journal, University Hospital is Louisville's safety-net hospital for the poor. It received $61 million from the state and $7 million from the city for indigent care last year.

The lawsuit argues that the hospital is a private, nonprofit corporation because it is controlled by a board of directors, not the University of Louisville.

For more information, read the Courier-Journal's story. Read the Open Government Blog entry about Attorney General Conway's opinion 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.

Animal-care panel cancels after Humane Society asserts violation of open-meetings law

A new panel given the task of drafting standards for care of farm animals canceled its scheduled meeting yesterday, apparently because the Humane Society of the United States alleged Wednesday that the Kentucky Livestock Care Standards Commission was violating the Kentucky Open Meetings Act.

The cancellation was announced by the state Department of Agriculture, which later "said the meeting was canceled at the request of Agriculture Commissioner Richie Farmer," Janet Patton reports for the Lexington Herald-Leader. The statement said, "Although he believes that the commission has followed the Open Meetings Act, he wants to make certain that everyone concerned with the issues the commission is working on has ample opportunity to make their opinions heard. Therefore, he believes that the public interest is best served by postponing today's meeting for several days to give all parties concerned enough time to plan for the session."

"The Humane Society alleged that the board has been acting in secret to prevent public involvement and "asked that the commission take no further action on recommendations made by species-specific groups or other advisory panels until the panels hold open meetings to consider all matters previously discussed in private, Patton writes. "Agriculture Department spokesman Bill Clary said Wednesday that the commission thinks it has complied with the state's Open Meetings Act." (Read more)

Parks board defends meeting behind closed doors

The Winchester Sun has asked Attorney General Jack Conway to review an executive session the Winchester-Clark County Parks and Recreation Board held before deciding to allow alcohol sales in Lykins Park for a concert.

In a letter responding to the Sun's challenge, the parks board said it had received several specific legal threats about allowing alcohol sales in Lykins Park. Under the Kentucky Open Meetings Act, public bodies, including the parks board, are required to conduct all of their business in an open session except when certain issues arise. Threatened or pending litigation is one of those exceptions in the law, and that justified a closed discussion of the matter during a meeting, according to a letter sent to the Kentucky Attorney General’s office by Clark County Attorney Brian Thomas.

The parks board voted 4-2 to allow the Winchester Fraternal Order of Police to sell beer during the John Michael Montgomery Country-Fest, despite an existing policy that prohibits alcohol in public parks in Clark County. The vote in public session on Sept. 12 followed the discussion in executive session.

In its Sept. 21 appeal to the attorney general, The Sun argued that the possibility of litigation was “remote” and therefore the exemption did not apply. Thomas responded for the park board that several people had threatened to sue the board if the waiver were granted.

The attorney general's office has not issued its opinion in the matter. That opinion has the force of law unless it is appealed to circuit court.

Read the Sun's story here.

Agency is pressured to re-post database of doctors' malpractice and disciplinary cases

U.S. Sen. Charles Grassley has joined journalists, academic researchers and consumer groups in calling on the Health Resources and Services Administration to put back online the National Practitioner Data Bank, a database of malpractice and disciplinary cases against doctors.

"In a strongly worded letter, the Iowa Republican, who has led investigations of fraud and waste in government health programs, said the now-removed file 'serves as the backbone in providing transparency for bad-acting health care professionals'," Duff Wilson of The New York Times reports. Grassley gave HRSA, part of the the Department of Health and Human Services, until Oct. 21 to hand over documents and answer a series of questions, ending with "What is your timeline for getting the database up and running again?"

For a PDF of Grassley's letter, click here. Under pressure, the agency has scheduled a conference call on the issue for Thursday, Oct. 13, from 1 to 2 p.m. Eastern Time.

The database "was created in 1986 for hospitals, medical boards, insurers and others to share information so that bad doctors do not slip through cracks in reporting," Wilson writes. The law makes doctors' names confidential, but the database has a Public Use File for researchers and journalists, in which doctors are identified only by numbers.

Some journalists have been able to identify doctors using information from other sources, such as lawsuits. "After a complaint by one doctor identified by The Kansas City Star, the agency threatened the newspaper reporter with a fine, pulled the doctor’s file from its Web site on Sept. 1 and began a review of how to hide the identities better," Wilson reports. "Its actions provoked protests" from the Association of Health Care Journalists, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and other groups. In a letter, they told HRSA, "Nothing in the Public Use File can be used to identify individuals if reporters or researchers don’t already know for whom they are searching."

Grassley wrote, "It seems disturbing and bizarre that HRSA would attempt to chill a reporter’s First Amendment activity with threats of fines for merely 'republishing' public information from one source and connecting it with public information from another. A journalist’s shoe-leather reporting is no justification for such threats or for HRSA to shut down public access to information that Congress intended to be public."

The Public Use File can be downloaded from the website of Investigative Reporters and Editors, one of the groups, protesting its removal from the HRSA site, but "that file will be more and more out-of-date as the dispute goes on," Wilson notes. She also reports that Robert E. Oshel, associate director for research and disputes in the Division of Practitioner Data Banks, says the agency is misinterpreting the law. (Read more)

Attorney general rules Louisville's University Hospital is a public institution

Louisville's University Hospital is a public institution, not a private one, which means the state gets a say about the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System, Attorney General Jack Conway said in an open-records decision Wednesday.

Conway said University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." U of L has long claimed University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal. The ruling means the documents pertaining to the merger itself would have to be made public. Because it deals with an open-government issue, that part of Conway's opinion has the force of law unless overturned in court.

"The finding reinforces the earlier positions by Conway and Gov. Steve Beshear that the deal cannot take place without the approval of state government, which owns the hospital property and granted the contract for University Medical Center to operate it," The C-J's Patrick Howington reports. U of L had said the hospital is private because it is run by a corporation. (Read more)

The ruling could affect the merger because of the religious implications. Saint Joseph is owned by Catholic Health Initiatives, which follows Catholic directives that prohibit abortion, sterilization and euthanasia. For more on the merger, click here.

AG declares Pike utility's records open

The records of a controversial utility in Eastern Kentucky are covered by the state Open Records Act "because two public agencies supply at least 25 percent of the funds it expends in the state," The Associated Press reports. "Deputy Attorney General Patrick Hughes wrote that Utility Management Group, based in Pike County, must turn over records requested by the Pike [County] Fiscal Court."

Hughes found that two public agencies pay the company more than $11 million a year. "The company and various agencies have been locked in a records fight after officials became concerned because of an audit," AP reports, based on a story in the Appalachian News-Express. UMG head Greg May told the newspaper that the utility will appeal the ruling.

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.

Foes of law letting optometrists use lasers may sue, alleging violation of Open Meetings Act

Although ophthalmologists and the Kentucky Medical Association strongly objected, a legislative committee appoved regulations Tuesday that will allow optometrists to perform some eye surgeries using lasers.

In answer, opponents say "they might file legal action against theKentucky Board of Optometric Examiners, which drafted the regulations, for failing to comply with the state's Open Meetings Act," reports Beth Musgrave of the Lexington Herald-Leader.

The regulations, passed under Senate Bill 110 of this year's General Assembly, now go to another legislative panel. If they pass, optometrists may be allowed to perform the surgeries by year's end. The bill has been cause for controversy, in large part because it passed through the legislature in a swift 12 days. Oklahoma is the only other state that gives similar operating privileges to optometrists.

Ophtalmologists said Tuesday the optometric board "used a task force appointed by the state optometric association, a trade group, to develop the regulations, and those meetings were held in secret with no public input," Musgrave reports. Legislators and optometrists disagreed, saying public comment was allowed at an open meeting in July, and the regulations were altered after task force members took the comments into consideration. (Read more)