- Associated Press - Thursday, August 14, 2014

FRANKFORT, Ky. (AP) - The Kentucky Supreme Court has heard arguments in a records dispute between the Council on Developmental Disabilities and the state Cabinet for Health and Family Services.

The advocacy group is asking to review the records of two disabled men who died in state care in 2009 shortly after being moved to new homes.

The Courier-Journal (https://cjky.it/1uThbRU) reports justices heard arguments on Wednesday in the case.

David Tachau, a Louisville attorney who represents the Council on Developmental Disabilities, argued the agency should have to release the records under the state’s Open Records Act.

“This court has said over and over again for more than 20 years that the Open Records Act is supposed to mean public disclosure,” argued David Tachau, a Louisville attorney who represents the Council on Developmental Disabilities. “The Open Records Act is supposed to allow people like the council to see whether public servants are in fact serving the public.”

Cabinet attorney D. Brent Irvin argued that a different state law calls for records in such cases to be released only to government agencies with a legitimate interest in the case.

Lower courts, including the state court of appeals, have ruled that the council does not have such an interest.

“We think the lower courts got it correct. The duty of the court is to ascertain and follow the intent of the legislature, not make policy,” Irvin said.

The council asked for death investigations records of the men, who were both severely disabled and without families, to find out if they could have been abused or neglected before their deaths.

“The folks we are most concerned about actually do not have families - like these two men - live most of their lives in a state institution,” Donovan Fornwalt, chief executive of the council, said after the hearing. “To claim that only government entities have a right to review records when a ward of the state dies in state custody, really concerns us. It’s the fox guarding the hen house.”

Afterward, Irvin said he commends the council for what it’s trying to do.

“We applaud that they are out there trying to help the disabled,” he said. “Our only interest in this case, as in all cases, is to follow the requirements of the statute.”


Information from: The Courier-Journal, https://www.courier-journal.com

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