Jan. 1, 2014 — We wanted to jump up and cheer last week when Franklin Circuit Judge Phillip Shepherd ordered the Kentucky Cabinet for Health and Family Services (CHFS) to pay fines and legal fees that could surpass $900,000.
We still don’t agree with this judge on his death penalty rulings but he was right on target when he ruled that CHFS had consistently ignored the law and his previous orders to release the files on deaths and near-deaths of children under its care.
The actual fine of $756,000 was based on what Judge Shepherd held as “persistent non-compliance” with the state’s open records law.
The case was brought to court originally in 2011 by the Louisville Courier-Journal and the Lexington Herald-Leader.
The judge wrote that the object of public disclosure of the records is "not to satisfy some unhealthy curiosity, not to sensationalize and not to gratuitously invade the privacy of mourning families. It has been enacted for a single, overriding purpose: to ensure both the cabinet and the public do everything possible to prevent the repeat of such tragedies in the future."
His ruling also directed the CHFS to pay attorney fees and court costs estimated at $200,000.
Those daily newspapers and a weekly, the Todd County Standard, had filed numerous open records requests but CHFS had released files which were heavily redacted (edited), often omitting more information than had been specified in the judge’s orders.
The newspapers sought the records to determine if any of the deaths or serious injuries of children under state protection were due to negligence on the part of state social workers or of administrative errors.
CHFS says it is legally bound to protect the privacy of such children and their families.
Shepherd also wrote:
"The cabinet has intentionally continued to employ a wholesale blanket approach to withholding public records, despite such approach being prohibited by the Open Records Act and contrary to this court's repeated orders."
In our view, the refusal of CHFS to open records is blatant disregard for the public’s right to know what its government is or is not doing to protect its most vulnerable citizens.
Judge Shepherd also wrote of the reasoning behind opening the files:
"There can be no effective prevention when there is no public examination of the underlying facts."
We believe the CHFS cabinet secretary and staff legal counsel have shown utter contempt for the court – and should be sent to jail – to make the point that no one is above the law.