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)

Hopkinsville paper publishes public officials' pay, makes readers aware of records

Many Kentuckians are not aware they can file open-records requests to obtain information they are entitled to see, such as salaries of public employees, reports Dave Boucher of the Kentucky New Era in Hopkinsville.

In a recent weekend issue of the paper (Aug. 27-28), Boucher reported that he filed 20 records requests to acquire information on city and county employee salaries. Al Cross, director of the Institute for Rural Journalism and Community Issues, told Boucher that public officials in rural places "can feel like a request to know their salary is an invasion of privacy," a feeling that stems from rural community culture in which a public office can be regarded as a private possession.

People simply don't understand what types of information they are entitled to see, Cross told Boucher. According to the Kentucky Open Records Act, any agency that receives at least 25 percent of its funding from public sources is subject to a request, Boucher writes. There are some exemptions, including "unwarranted invasion of personal privacy" and classified information, but salaries are not on that list. (Read more)

AG rules Carter County Fiscal Court violated open meetings law by restricting recording

A Carter County Fiscal Court's resolution to restrict cameras and video recording of fiscal court meetings to the last pew of the fiscal court room" was overturned Thursday by Attorney General Jack Conway, Katie Brandenburg of The Independent in Ashland reports. Conway called the resolution "unenforceable and inimical to the public good."

The resolution was passed Aug. 9 after the court's request for "Mignon Colley, Carter County Republican chairwoman, to move her video camera," Brandenburg reports. After an unresolved complaint Colley made to Carter County Judge-Executive Charles Wallace, Colley filed an appeal with the attorney general's office.

Conway ruled, "The Carter County Fiscal Court cannot, by ordinance, executive order, or resolution, abridge the statutorily invested right to videotape public meetings." This decision is not "just an opinion" as Wallace told Brandenburg. The attorney general "issues legally binding decisions in disputes under the open records and meeting laws," the attorney general's website reports. The court must file an appeal in circuit court to contest this decision. (Read more)

C-J, ACLU ask Conway to decide if Louisville's University Hospital is a public agency

Attorney General Jack Conway has been asked to decide "whether University Hospital is a public institution — an issue in the controversial plan to merge the University of Louisville’s main teaching hospital with two other health-care systems," Patrick Howington of The Courier-Journal reports.

ACLU of Kentucky and The Courier-Journal have appealed denials of open-records requests they made to University Medical Center Inc., which does business as University Hospital. "(University Medical Center) turned down both requests on grounds that it is a nonprofit corporation rather than a public agency and therefore isn’t subject to the act," Howington writes. An attorney general’s opinion on open records or open meetings has the force of law unless overturned in court.

News outlets are less inclined to take legal action for open government, but citizens are becoming more active, national survey finds

"While a lack of resources has made news organizations increasingly less inclined to file freedom-of-information lawsuits, citizens have a growing interest in government transparency and are becoming more active in asserting their right to government information," the Media Law Resource Center and the National Freedom of Information Coalition report after an informal, online survey conducted Aug. 9-15. It confirmed continuation of a trend first noticed in 2009.

"If ordinary citizens are becoming more aware of their access rights, and more assertive regarding them, it is indeed a reason to be gratified," said Ken Bunting, executive director of NFOIC. "However, if news organizations are trending toward being less gung-ho in an area once regarded as a matter of responsibility and stewardship, there is the frightening potential that journalism could suffer, as could the health of our democracy." For the NFOIC release and links to the study documents, click here.

After the 2009 survey, the John S. and James L. Knight Foundation created the Knight FOI Fund to pay initial expenses and fees for open-government lawsuits that the fund considers worthwhile.

U of L physicians' group drops open-records appeal, but C-J may still not get records

An organization representing University of Louisville doctors who were trying to keep their financial records private dropped its lawsuit appealing an adverse open-records decision Tuesday. In April, Attorney General Jack Conway ruled that University of Louisville Physicians Inc. is a public agency and, as such, is subject to the Kentucky Open Records Act. Conway's opinion was requested by The Courier-Journal.

Last November, state Auditor Crit Luallen released a scathing audit of Passport, which provides managed care for 165,000 Medicaid patients in Jefferson and 15 surrounding counties. The audit accused the organization of "wasteful spending, conflicts of interest and the questionable transfer of $30 million in Medicaid funds to organizations represented on Passport's board, including University Physician Associates," The Courier-Journal's Tom Loftus reports. Because of the audit, the newspaper asked for financial records from University Physicians Associates and University of Louisville Physicians Inc., which is the successor to University Physicians Associates. They refused to hand over the records, and Conway's decision followed.

Though the attorney general determined the organization should be subject to the open-records law, and the doctors' lawsuit has been dismissed, giving Conway's opinion the force of law, The Courier-Journal may not receive the records it has asked for. In its notice of dismissal, University of  Louisville Physicians stated it could change "its structure and function in the future which it believes may alter its status as a public agency."

"We are still forming our final structure and function," Diane Patridge, ULP's vice president for marketing and communications, told Loftus. "Once we're up and fully established we may appeal this current determination." Curiously, "Partridge also said that ULP has no records to release to the newspaper as a result of the dismissal of the case," because it has no employees – even though it was incorporated in March 2010. "She said University Physicians Associates . . . has handled all financial matters and paperwork for ULP to date," Loftus reports.

“This case is another piece of a puzzle,” Courier-Journal attorney Jon Fleischaker said. “It’s another step to try to make sure there’s more transparency at the University of Louisville School of Medicine and University Medical Center.” (Read more)

"Sounds like a shell game with shell corporations," said Al Cross, director of the Institute for Rural Journalism and Community Issues and associate extension professor of journalism at the University of Kentucky.

Series on questionable disability payments in Lexington led to closure of records involved

Sometimes journalism based on public records prompts government officials to hide the records to prevent further journalism about them.

In 2005, the Lexington Herald-Leader revealed "a high rate of disability pensions among Lexington police officers and firefighters. The stories named pensioners with allegedly severe physical ailments who remained competitive athletes or who returned to the public payroll for new jobs similar to their old ones," John Cheves writes for the newspaper.

"Change came almost immediately. But not to the system doling out millions of dollars in disability pensions every year. Rather, the public no longer has access to many city records the newspaper used to report its stories. Police and fire unions successfully lobbied the General Assembly in 2006 to exempt those documents from the Kentucky Open Records Act." (Read more)

Kentucky looks like only state that denies access to recordings made by police-cruiser cameras

Kentucky appears to be the only state that denies public access to recordings made by cameras in police cruisers. Scott Wartman of The Kentucky Enquirer discovered that this week as he followed up on the guilty plea by Covington City Commissioner Steve Frank for driving under the influence.

"Open-records laws across the country compiled by the Reporters Committee for Freedom of the Press show that only in Kentucky is the public not allowed to view video of DUI traffic stops," Wartman writes. "First Amendment experts say they don't know of any other state with an exemption for DUI videos," and some think the law "raises constitutional issues and violates the public's right to know." Making cruiser recordings available "serves as an important check on police abuse," David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, told Wartman.

The law was passed in 1984 with major changes to Kentucky's DUI law. The sponsor of the bill, then Sen. Henry Lackey, told Wartman that he didn't know why. "I don't remember anyone bringing that issue up," said Lackey, now deputy state aviation commissioner. Jon Fleischaker, attorney for the Kentucky Press Association, told Wartman, "Although I don't know for certain, my guess is it was done out of some misguided sense of privacy and some concern for how the thing could be used." He said the law could be challenged on constitutional grounds if a recording is used in a case. "Let's say I'm a defendant who is wrongfully accused and I want to show the public the tape," he said. "Why shouldn't I be able to do that?"

Judge closes evidentiary hearing in Todd murder case; newspaper seeking child-welfare records

Todd Circuit Judge Tyler Gill has sealed the case record and barred journalists from a continuing hearing in the murder case of a 9-year-old girl, "fearing the disclosure of evidence that jurors won’t be allowed to hear at trial," Nick Tabor reports from Elkton for the Kentucky New Era in Hopkinsville.

Tabor reports that state police say Amy Dye's 17-year-old cousin and adoptive brother, Garrett Dye, who is being tried as an adult, confessed to killing her, but his attorney says the confession was coerced and has asked the judge to suppress it. The hearing lasted all day Friday and is to continue Monday. Gill told the five reporters who wanted to cover the hearing, “I can’t do anything to intentionally sabotage the defendant’s right to a fair trial.”

Gill also sealed the court record until after the trial, which is scheduled for November. The defense "requested a mental evaluation to determine whether Dye was eligible to plead insanity and competent to stand trial," Tabor reported. "The evaluation results are confidential, and so far attorneys have not scheduled a hearing for Gill to rule on Dye’s competency." (Read more)

The case has raised other open-government issues. The weekly Todd County Standard asked the state Cabinet for Health and Family Services for its file on the case and won an appeal at the attorney general's office when the cabinet said it had no such records and refused the request of the office for a confidential review of records.

The cabinet appealed Franklin Circuit Court's award of costs and attorneys' fees but not the substance of the ruling, which cited an earlier opinion of the court that the cabinet must release records of a case where child abuse or neglect resulted in a fatality or near fatality. "The cabinet had substantiated allegations of abuse or neglect involving Amy and had imposed certain conditions upon the family," the Standard said in its lawsuit to force the cabinet to release the records.

The Standard asked Todd County Dispatch for access to logs and recordings of calls it received on the night the killing was reported, but the agency denied the request, saying disclosure could compromise the investigation. The attorney general's office upheld the denial, saying in an opinion written by Assistant Attorney General Ryan Halloran that the agency had demonstrated that "disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action."

Louisville school-bus fight tape is open record

Attorney General Jack Conway has ruled that a videotape of an assault on a Jefferson County Public Schools bus driver by a parent is a public record and should be released to Louisville television station WLKY.

An opinion issued July 11, written by Assistant Attorney General Amye Bensenhaver, held that the school system violated the state's Open Records Act by refusing to make the tape available. The district declined the station's request, declaring the tape was protected by the Family Educational Rights and Privacy Act. The videotape, the school district argued, is an educational record and is therefore confidential under the federal law.

But the opinion held that the videotape focused on the action of the adults involved rather than the students. The school system should blur the identities of any students visible in the tape and release it to the television station, said the opinion, which has the force of law unless overturned by a court. The school system has 30 days to appeal. Lauren Roberts, a spokeswoman for the school system, said no decision has been reached on an appeal. UPDATE, Aug. 9: The system released the tape, in which the identities of the students were obscured, and the station did a story and posted the opinion.

The opinion said, "Because the conduct at issue in the disputed videotape does not focus on students, or student activities, we do not believe the videotape can be withheld in its entirety as an 'education record.' Instead, we find that it is a public record in which there is a strongly substantiated public interest predicated on the public’s ‘right to know’ . . . whether public servants are indeed serving the public . . . .” The opinion held that the privacy interest of the students "does not override the public’s right to know that its agencies and their employees are 'properly execut[ing] their statutory functions,' in this case, insuring the safety and protection of the students who have been entrusted with their care."

But the attorney general's office also stipulated that the opinion applies only to this particular situation and is not a precedent that applies to all school videotapes.

According to the website of WLKY-TV, on March 1, Chesica White boarded a bus ridden by her 7-year-old son intent on finding out who was bullying him. White and her 12-year-old daughter argued with bus driver Johnetta Anderson. The argument escalated and White dragged the driver off of the bus. Anderson suffered a torn ligament. White was charged with 20 felonies and two misdemeanors. She entered an Alford plea, meaning she didn't admit guilt but acknowledged a jury likely would find her guilty of two assault charges.

The station filed an open-records request seeking reports of bullying on the bus on which the March 1 altercation occurred. The documents the station received outlined 150 such reports since the start of the school year. Of that number, 51 were filed in the two weeks leading up to the March 1 incident. For the station's story, click here.

AG again finds KSP violated Open Records Act

Attorney General Jack Conway, the state's chief law-enforcement officer, has again found the Kentucky State Police, the state's main law-enforcement agency, in violation of the state's open-records law – this time in a case involving the 1977 Beverly Hills Supper Club fire that killed 165 people, one of the deadliest fires in American history.

The case began when David Brock, who is seeking evidence in the supper club fire, asked the state police for all photos and slides related to the fire. The state police gave him some black and white photos but refused to pursue access to color photos that had been taken home, with permission, by former trooper Ronnie Freels.

Conway's opinion, written by Assistant Attorney General Amye Bensenhaver, rejected the state police's contention that Freel's pictures were not in their control. Since they were removed with permission, they remained official state records and the state police must recover them and furnish copies to Brock, the opinion said, adding, "While KSP is not obligated to 'verify Mr. Brock’s assertion' that Mr. Freels maintains additional responsive photographs and slides relating to the Beverly Hills Supper Club fire, it must secure those records from Mr. Freels so that Mr. Brock is afforded the opportunity to do so himself."

The opinion called the police's action a "serious open records management issue that involved subverting the intent of the open records law, as well as the laws governing records management and retention." The opinion noted that the attorney general's office had referred the matter to the Kentucky Department for Libraries and Archives "for further inquiry." For a copy of the opinion, click here.

The attorney general's office earlier found the state police had repeatedly violated the records law in a homicide case, and a survey last year by the Kentucky Open Goverment Blog showed many news organizations in the state labeled the Kentucky State Police as "stingy" with public information.

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)