Child abuse records must be disclosed to newspapers, Ky. appellate court rules

Two Kentucky newspapers earned a victory in a lengthy legal battle with child welfare officials this week when a state appellate court ruled that records relating to child abuse cases that resulted in death or near-fatal injuries must continue to be publicly disclosed.

The Kentucky Court of Appeals in Frankfort ruled that the state’s Cabinet for Health and Family Services must continue to disclose requested information to The Courier-Journal and Lexington Herald-Leader under the state’s open records law, even though the records are the subject of a pending appeal. The newspapers, which continue to report on Kentucky’s high number of child abuse and neglect cases that end in death, successfully argued that there is significant public interest in the child welfare records.

“From a community point of view, I think that’s really good,” said Jon L. Fleischaker, The Courier-Journal’s attorney. “In Kentucky and elsewhere, newspapers are doing the public’s good.”

Seeking to delay its compliance with the court order for disclosure, the ruling that is on appeal, the family services cabinet attempted to meet Kentucky’s legal standard for achieving a stay by proving there would be “irreparable injury” if it continued releasing the child abuse records in question before a ruling was issued on its separate appeal.

But in a 2-1 ruling, the court found that the public interest and the publications’ newsgathering abilities outweighed the agency's purely speculative concerns that disclosure would harm the children in its care.

“Given our conclusion that the Cabinet has failed to demonstrate injury to its concrete rights, the equities clearly favor the public’s interest in disclosure of the Cabinet’s performance of its statutory duties in cases of death or near death of children under its care,” wrote Judge Glenn E. Acree in the court’s majority opinion.

Courts across the country have repeatedly declined to find a First Amendment-based right of public access to the juvenile court system. Following the U.S. Supreme Court’s rationale that such a right exists where both experience and logic favor openness, most courts have found that public scrutiny is inconsistent with the juvenile court’s aim of protecting children from the stigma and emotional trauma that can accompany publicity.

In Kentucky, the state cabinet may publicly disclose information in cases where child abuse or neglect resulted in a child death or near death. In April, cabinet officials denied the newspapers’ request for records related to the 2009 death of a 7-month-old whose father, claiming the death was accidental, was charged with murder. The agency argued that the records were exempt because it never determined that the baby’s death was caused by neglect or abuse — an assertion the newspaper’s lawyer disputed, saying in an article about the case, “there is simply no requirement of a criminal conviction” for the records to be public.

Monday’s ruling by the three-judge panel allows the enforcement of the Franklin Circuit Court’s Jan. 19 order that requires the cabinet to submit the requested records and any provisional redactions to the court for judicial review. It also sets forth a schedule for production of documents and hearings on the newspapers’ objections to any redactions.

“In our opinion the circuit court correctly determined that the Cabinet’s claimed authority to redact cannot be reconciled with its duty to disclose under the Open Records Act,” Acree wrote.

Fleischaker said he is pleased the court cleared up the “procedural quagmire” that enveloped the agency’s objections to disclosing the child abuse records but said he fears the already years-long case could still be far from over.

“It will be drawn out assuming the cabinet continues its current posture of not giving us stuff,” he said. “They can comply with this and still redact information, and we will end up litigating that sometime in the future.”

Jill Midkiff, the cabinet’s director of communications, could not be immediately reached for comment.

Related Reporters Committee resources:

· Secret Justice: Access to Juvenile Justice: The jurisprudence of access to juvenile courts

· Secret Justice: Access to Juvenile Justice: Kentucky