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Governor takes records fight to public
BY ROGER ALFORD, Associated Press
FRANKFORT — Gov. Steve Beshear took a legal dispute over government transparency to the court of public opinion on Thursday, trying to defend himself from criticism about his administration’s decision to continue a fight to keep child death records private.
The second-term Democrat sent a column to newspapers Thursday, the same day that the Kentucky Cabinet for Health and Family Services appealed a judge’s ruling that it must release the records to the Lexington Herald-Leader, The Courier-Journal and the Todd County Standard.
The newspapers had sued the agency seeking access to records regarding children the social service agency had contact with before they were killed or badly hurt as a result of abuse or neglect.
Franklin County Circuit Judge Phillip Shepherd sided with the newspapers earlier this month, and fined the agency for withholding the records.
Lawyers for the agency asked the Kentucky Court of Appeals on Thursday to reverse Shepherd’s ruling, saying it raises significant legal and policy questions.
“We are not arguing for the right to camouflage the actions of the cabinet or its workers,” Beshear wrote. “That information is already being provided, and we will continue to do so. But increased openness has to be implemented in a consistent and thoughtful way that holds the best interests of the child as its paramount priority. That is our top and only concern. There are very real consequences — sometimes unintended — to eliminating confidentiality.”
The appeal and the governor’s public defense of it drew a sharp response from Louisville attorney Jon Fleischaker, lead attorney in the case and an expert on First Amendment issues.
“I’m disappointed about the appeal, but I’m not surprised,” Fleischaker said. “It’s been clear from the beginning that the cabinet and the governor are intent on trying to protect a system which protects adults as opposed to children. And that’s the problem.”
The Lexington and Louisville newspapers sued in 2010 after the agency withheld records that Shepherd had ruled were public. The Todd County Standard filed a separate lawsuit.
Shepherd ruled earlier this month that the agency could redact only the names of child victims who are hurt but don’t die, the names of private citizens who report suspected abuse, the names of minor siblings of victims and the names of minor perpetrators.
Beshear said publicly releasing names of people who report child abuse has “real-life consequences.” Those consequences could include making people less willing to report suspicious behavior.
In the column, Beshear outlined many of the same issues that lawyers for agency included in the appeal.
He said police and prosecutors routinely share information with social workers to help determine whether children need to be removed from a home for safety reasons. The judge’s ruling doesn’t exempt that information from disclosure, even in cases that still are under investigation.
“Consequently, prosecutors will likely begin withholding that information rather than risk jeopardizing their ability to pursue criminal charges,” Beshear wrote. “As a result, the cabinet will lack crucial information it needs to decide whether to intervene to protect children.”
Beshear said Shepherd’s ruling also doesn’t allow adoption information to be withheld in cases where parental rights have been involuntarily terminated.
“As a result, a parent who previously lost custody of a child via court order will be able to track down the child and the family who adopted that child,” Beshear said. “The result could potentially be tragic. And it certainly will stymie the cabinet’s ability to find people to adopt abused or neglected children.”
Beshear said the ruling also allows for the public release of the names of parents accused of child abuse but later exonerated in court proceedings.
“The cabinet must make decisions in a short timeframe and often errs on the side of caution,” he wrote. “Parents or others accused should have the right to defend themselves before they’re punished.”
Fleischaker said the issue is about informing the public about wrongdoers.
“What we’re talking about here are children who have been killed, or who have been abused to the point where they have nearly been killed,” he said. “We are talking about crimes that have been committed in the vast majority of cases by adults.”
Fleischaker said the Beshear administration appears to be trying to cover up “the inadequacy of the cabinet and its processes and keeping them secret as long as possible.”
“We had thought for some time that the governor was trying to get the best of both worlds, claim transparency and cover up what was going on,” Fleischaker said. “And now we know for sure that’s what he’s trying to do.”
The second-term Democrat sent a column to newspapers Thursday, the same day that the Kentucky Cabinet for Health and Family Services appealed a judge’s ruling that it must release the records to the Lexington Herald-Leader, The Courier-Journal and the Todd County Standard.
The newspapers had sued the agency seeking access to records regarding children the social service agency had contact with before they were killed or badly hurt as a result of abuse or neglect.
Franklin County Circuit Judge Phillip Shepherd sided with the newspapers earlier this month, and fined the agency for withholding the records.
“We are not arguing for the right to camouflage the actions of the cabinet or its workers,” Beshear wrote. “That information is already being provided, and we will continue to do so. But increased openness has to be implemented in a consistent and thoughtful way that holds the best interests of the child as its paramount priority. That is our top and only concern. There are very real consequences — sometimes unintended — to eliminating confidentiality.”
The appeal and the governor’s public defense of it drew a sharp response from Louisville attorney Jon Fleischaker, lead attorney in the case and an expert on First Amendment issues.
“I’m disappointed about the appeal, but I’m not surprised,” Fleischaker said. “It’s been clear from the beginning that the cabinet and the governor are intent on trying to protect a system which protects adults as opposed to children. And that’s the problem.”
The Lexington and Louisville newspapers sued in 2010 after the agency withheld records that Shepherd had ruled were public. The Todd County Standard filed a separate lawsuit.
Shepherd ruled earlier this month that the agency could redact only the names of child victims who are hurt but don’t die, the names of private citizens who report suspected abuse, the names of minor siblings of victims and the names of minor perpetrators.
Beshear said publicly releasing names of people who report child abuse has “real-life consequences.” Those consequences could include making people less willing to report suspicious behavior.
In the column, Beshear outlined many of the same issues that lawyers for agency included in the appeal.
He said police and prosecutors routinely share information with social workers to help determine whether children need to be removed from a home for safety reasons. The judge’s ruling doesn’t exempt that information from disclosure, even in cases that still are under investigation.
“Consequently, prosecutors will likely begin withholding that information rather than risk jeopardizing their ability to pursue criminal charges,” Beshear wrote. “As a result, the cabinet will lack crucial information it needs to decide whether to intervene to protect children.”
Beshear said Shepherd’s ruling also doesn’t allow adoption information to be withheld in cases where parental rights have been involuntarily terminated.
“As a result, a parent who previously lost custody of a child via court order will be able to track down the child and the family who adopted that child,” Beshear said. “The result could potentially be tragic. And it certainly will stymie the cabinet’s ability to find people to adopt abused or neglected children.”
Beshear said the ruling also allows for the public release of the names of parents accused of child abuse but later exonerated in court proceedings.
“The cabinet must make decisions in a short timeframe and often errs on the side of caution,” he wrote. “Parents or others accused should have the right to defend themselves before they’re punished.”
Fleischaker said the issue is about informing the public about wrongdoers.
“What we’re talking about here are children who have been killed, or who have been abused to the point where they have nearly been killed,” he said. “We are talking about crimes that have been committed in the vast majority of cases by adults.”
Fleischaker said the Beshear administration appears to be trying to cover up “the inadequacy of the cabinet and its processes and keeping them secret as long as possible.”
“We had thought for some time that the governor was trying to get the best of both worlds, claim transparency and cover up what was going on,” Fleischaker said. “And now we know for sure that’s what he’s trying to do.”
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