February 22, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
The Kentucky child protection agency believes it has the right to keep Kentucky citizens in ignorance of what its employees are doing. Indeed, over the past six years, the Cabinet for Health and Family Services has been so adamant about refusing to allow the public to know how it conducts its business that it’s violated the state’s Open Records Act, the clear intent of the Legislature and several court orders in order to keep its secrets.
But others disagree. Notably, Kentucky’s two largest newspapers, the Courier-Journal and the Lexington Herald-Leader, one trial judge and three appellate court judges believe the Open Records Act means what it says and the public has a right to know what the Cabinet is up to.
The judges are so sincere in their belief that trial judge Phillip Shepherd tagged the Cabinet with a whopping fine of over $720,000 and awarded attorney’s fees to the two newspapers of about $300,000. This article reports that the Court of Appeals just issued its stamp of approval on Judge Shepherd’s ruling (Courier-Journal, 2/20/16). Shepherd is obviously one unhappy judge and the appellate judges clearly understand why. Here’s the appellate court’s ruling.
How’d he get to be so out of sorts?
Back in December, 2010, the two newspapers submitted to the Cabinet, open records requests regarding 140 incidents of child abuse that resulted in fatality or near fatality of the child in question. Those are records that the Cabinet is required to divulge unless certain exemptions exist. Those exemptions are things like personal privacy, ongoing criminal proceeding, etc.
So the Cabinet immediately went into all-out secrecy mode, at first refusing to produce any of the records and then simply producing its own summary of some of them. Remarkably, when the Herald-Leader made one request, the Cabinet rejected it but said another narrower request would be honored. Two weeks later, the paper submitted another request along the lines specified by the Cabinet. It too was refused.
Why? It seems the Cabinet had, within that two week period, passed its own “Emergency Regulation” specifically aimed at denying the request it had previously said would be honored. Really. Nothing in the entire sorry case gives quite the sense of the agency’s attitude toward the public as does that Emergency Regulation.
The problem – apart from keeping the public in ignorance – with the Cabinet’s intransigence was that it violated state law. So the newspapers went to court seeking an injunction to force production of the information sought. But the Cabinet had just begun to stonewall.
Judge Shepherd ordered it to produce the records but said that certain names could be redacted from the documents based on narrowly-drawn considerations. So, for example, the name of an injured child, the child’s sibling or a private person reporting the abuse could be redacted to preserve their privacy.
The circuit court also noted that the Cabinet could seek to make additional redactions to an individual record by specifically invoking an exemption under the Open Records Act and by arguing with specificity its application to such record.
That is, if the agency wanted to rely on a statutory exemption, it had to specify which one and the grounds for claiming it. But, in keeping with its established pattern of non-cooperation, the Cabinet simply asserted various privileges without complying with the court’s order. By then, it was three years from the date of the initial request by the papers.
[T]he court held that none of the exemptions provided under the Open Records Act applied to the Cabinet’s redactions…The court viewed the Cabinet’s redactions as both directly and implicitly violative of the Open Records Act…
Even the witness designated by the Secretary to oversee compliance with the Court’s orders testified that she had not personally reviewed any of the files, and could not provide meaningful testimony about the redactions.
The Cabinet eventually produced the records sought in the format ordered by the judge, but then, weirdly, appealed the case. By producing the records, the agency made the case moot. After all, even if the appellate court ruled in its favor and ordered that the records not be produced, they already had been. That cat was out of the bag. So the appeal by the Cabinet accomplished nothing except to waste more time and incur still greater attorney’s fees that the Cabinet – i.e. the taxpayers of the state – would have to pay.
Like Judge Shepherd, the appellate court judges were none too pleased by the Cabinet’s behavior. Judge Irv Maze, who wrote the opinion, called the agency’s actions “egregious” and a “culture of secrecy.” The Court said the Cabinet acted “willfully” and “intentionally” in violating the statute. It “withheld records without plausible justification.” This was no honest mistake about what the law required. Agency personnel knew that what they were doing was illegal and did it anyway.
[T]he Cabinet acted with conscious disregard for the Plaintiffs’ rights…
[T]he Cabinet intentionally adopted a legal strategy designated to delay, obstruct, and circumvent the Court’s ruling.
That pretty much sums up the attitude of the Cabinet for Health and Family Services toward the public’s right to know what it’s doing. Indeed, it accurately describes the attitude of children’s welfare agencies across the country to that very thing. Time and again we see CPS agencies not only acting in secret, but violating applicable laws in order to keep its actions behind closed doors. Their view seems invariably to be that We the People have no right to know how our children are being treated by the state, even when the law clearly states that we do.
In responding to requests for documents, the agency was required by statute to balance privacy considerations against the public’s right to know. The court ruled that it failed to do so in any meaningful way and “[t]he Cabinet’s own witnesses testified that it always erred on the side of nondisclosure.”
By passing the Open Records Act, the Legislature clearly stated that the agency had a duty to inform the public. The various judges agreed, but the Cabinet refused.
I of course have argued long and hard that the secrecy with which child welfare agencies are invariably cloaked does more harm than good. It allows employees to act beyond the view of the public, a fact that dramatically increases the chances of malfeasance within the agency.
Child protective authorities always argue that it would redound to the detriment of kids to let the public know what they’re doing with our kids. But that’s easily rectified by the simple redactions Judge Shepherd ordered in the first place and that the agency eventually complied with.
If that so endangered Kentucky’s kids, it must have done so when the Cabinet eventually turned over the records. But it didn’t.
The Cabinet vigorously argued that release of these documents would cause harm to the Cabinet and its clients. Yet the Court released all of the Child Fatality Review reports with minimal redactions over two years ago, and when the evidentiary hearing was held in July of 2013, the Cabinet did not put on any evidence of a single real world problem that it had encountered by virtue of the release of the minimally redacted Child Fatality Reports.
Precisely as I’ve long argued.
Read the Courier-Journal article. Read the appellate court’s opinion. Each gives a good idea of the attitude of child welfare agencies across the country toward the public’s right to know. But the more the public knows about what those agencies are doing to protect kids, the better they’ll do that all important job. Until we let the sunshine in, the reports will continue to be scandalous and sometimes tragic.
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