- Associated Press - Friday, February 19, 2016

LOUISVILLE, Ky. (AP) - A Kentucky Court of Appeals panel on Friday ruled in favor of two newspapers and sharply scolded the state for unlawfully denying access to records documenting child abuse deaths. The ruling orders the Cabinet for Health and Family Services to pay about $1 million in legal fees and penalties.

Writing for the three-judge panel, Judge Irv Maze criticized the agency for its “systematic and categorical disregard for the rule of law” in its long-running legal fight with The Courier-Journal and the Lexington Herald-Leader, the state’s two largest newspapers.

“The cabinet’s conduct in this case was indeed egregious,” Maze wrote, criticizing the agency for its “culture of secrecy.”

“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,” Maze wrote. “We could not disagree more.”

The legal fight stemmed from open-records requests for documents possessed by the cabinet regarding child abuse deaths and near fatalities, and the deaths of children while under the cabinet’s supervision.

One of the cases involved a 9-year-old adopted girl who was beaten to death in 2011 in her home in Todd County, and another focused on a Wayne County toddler who died in 2009 from drinking drain cleaner from a meth lab, The Courier-Journal reported.

The cabinet initially declined to release many of the documents requested by the newspapers, citing the confidential nature of the information and the personal privacy exemption under the open-records law.

The newspapers filed a complaint in Franklin County Circuit Court, accusing the cabinet of violating the open-records law. The papers sought attorneys’ fees and penalties for noncompliance.

Circuit Judge Phillip Shepherd determined the cabinet had improperly denied the open-record requests and ordered officials to turn over the records, subject to some redactions. He also awarded attorneys’ fees to the papers and imposed penalties against the cabinet.

In the records the cabinet released, Shepherd ruled that officials had redacted more than was allowed under the law’s personal privacy exemption. The agency has since released most of its files. But it disputed the order that it pay more than $300,000 in legal fees to the papers and $756,000 in fines.

Maze acknowledged that the penalty is substantial and the cost ultimately will be borne by taxpayers.

“Substantial, too, is the legal obligation the cabinet owed the public and the effort it expended in attempting to escape it,” he wrote. “While it will ultimately be the public that bears the expense of this penalty, we maintain that the nominal punishment of an egregious harm to the public’s right to know would come at an even greater price.”

The appeals court panel also included judges Jeff Taylor and Janet Stumbo.

In a separate opinion, Taylor concurred with the decision affirming the attorneys’ fees assessed against the cabinet. But he disagreed with the amount of the penalties.

Asked whether the state will appeal, Gov. Matt Bevin’s spokeswoman said the matter is under review.

The open-records dispute occurred during former Gov. Steve Beshear’s tenure. Bevin spokeswoman Jessica Ditto said the ruling was based on a “serious cover-up” leading to “an unfortunate million-dollar liability for the commonwealth’s taxpayers.”

David Thompson, president of the Kentucky Press Association, told the Lexington Herald-Leader that the $756,000 fine in the case is the largest he’s aware of under the state’s public records law.


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