A three-member panel of the Kentucky Court of Appeals upheld a Franklin Circuit Court ruling on Friday that the state Cabinet for Health and Family Services violated the state’s sunshine law in refusing to turn over records requested by the state’s two-largest newspapers.
In addition, the court upheld the fees and penalties, totaling more than $1 million, Circuit Judge Phillip Shepherd imposed when he ruled the cabinet willfully withheld the records.
The records sought involved reports about the deaths and injuries of children who were under the supervision of the cabinet, often because of abuse or neglect. The newspapers sought the cabinet’s records under provisions of the state’s Open Records Law.
The first step in this battle was taken in December 2010 when Courier Journal reporter Deborah Yetter filed a request for records related to the death of a child. The case highlighted the deaths of two children under the supervision of the cabinet.
Nine-year-old Amy Dye was beaten to death in 2011 at her adoptive home in Todd County. Kayden Branham died in 2009 after the toddler drank drain cleaner from a meth lab in a trailer where the teenage parents were staying.
The cabinet had argued federal law and privacy restrictions of state law prohibited it to release the records, arguments Judge Shepherd rejected.
In upholding Judge Shepherd’s decision, the appeals court said, “Public entities must permit inspection of public records as required or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust,” Judge Irv Maze wrote for the appeals court.
“The Cabinet’s conduct in this case was indeed egregious,” the court’s opinion concluded. “The face of the record reveals the ‘culture of secrecy’ of which the trial court spoke; and it evinces an obvious and misguided belief that the Open Records Act is merely an ideal – a suggestion to be taken when it is convenient and flagrantly disregarded when it is not. We could not disagree more. ‘Publicity,’ Justice Brandeis tells us, ‘is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.’”
“It’s a terrific ruling, just terrific,” Jon Fleischaker, who represented The Courier-Journal in the case told a reporter for the Louisville newspaper. “We hope this puts an end to it.”
Judge Jeff Jones dissented with the amount of the penalty imposed by Judge Shepherd, concluding that he had interpreted the law incorrectly. Judge Janet Stumbo concurred with the ruling of Judge Maze.
The cabinet, now under the leadership of the administration of Gov. Matt Bevin, can appeal the decision to the state Supreme Court. The decisions to refuse to release the records and appeal Judge Shepherd’s rulings was made during the administration of Gov. Steve Beshear.
The decision, 2012-CA-000179 can be read at http://apps.kycourts.net/Supreme/SC_Opinions.shtm
Mike Farrell, Ph.D, is head of the Scripps Howard First Amendment Center at the University of Kentucky, a Covington resident, former managing editor of The Kentucky Post and co-founder of the nkytribune.com.