Mike Farrell: ‘Culture of secrecy’ needs
to end in Health, Human Services Cabinet

By Mike Farrell

Next time you grouse about the way the media cover the news, remember these two words: public accountability.

Strip away the protection the First Amendment gives the media from government interference, strip away access to information guaranteed by laws such as Kentucky’s Open Records Act, and you have no accountability – a government that can act with impunity.

I am surprised and disheartened when I see an annual survey that reveals that more than a people think the First Amendment gives the media too much power.

Really?

The government has thousands of lawyers, billions of dollars and bureaucrats galore. It wiretaps, investigates, subpoenas, arrests, intimidates, hires informants and shares information from local police all the way up to the FBI. Does anyone think government has too much power?

Some of those PUBLIC employees don’t want to be accountable for what they do. They don’t want to answer for how they spent or misspent your money, how they did or did not enforce a law, how long it took them to arrive at an emergency, and innumerable other actions. Some of them don’t think anyone ought to question them about how they do their jobs.

A disturbing example of this serious breach of public accountability is Kentucky’s Cabinet for Health and Family Services. For the second time in 18 months, a state judge on Nov. 3 sharply criticized the cabinet, accusing it of operating under “a culture of secrecy” and ordering it to follow the law.

The cabinet’s only response, according to the Herald-Leader, is that officials are trying to decide whether to appeal the court’s decision.

The issue here is not inconsequential. The battle has been over records that document the cabinet’s actions in cases where a child under the supervision of the state died or nearly died as the result of abuse or neglect. What could possibly be of more concern to the citizens of the Commonwealth than to ensure that children are being properly cared for?

Perhaps those records would convince the public and the legislature that the cabinet’s resources are inadequate for the Herculean job of protecting children. Perhaps they would show that workers need more training, more facilities for children, more oversight or support. Perhaps those records would demonstrate that the cabinet’s procedures need to be changed.

But as long as the cabinet continues its game of hide and seek, treating the law and the judges who try to enforce it with contempt, the public will not know the answers to those questions and the most important one: Why did this child die?

In 2009, an investigation by the Courier-Journal found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.

Those results deserve additional scrutiny because citizens have a right to know what went wrong. The cabinet refused to release records relating to the deaths of children under its supervision when the Courier-Journal and the Herald-Leader sought them, arguing that the state could lose federal funding by violating privacy restrictions. And twice, Franklin Circuit Court Judge Phillip Shepherd has ruled that federal and state laws that govern child abuse investigations include privacy exceptions when a child dies or nearly dies. In his decision on Nov. 3, he even cited congressional records that make it clear the House and Senate did not intend to impede public accountability when a child dies.

It is hard to imagine that the cabinet’s lawyers, who are paid with our tax dollars, are incapable of finding the law or understanding it.

This travesty started two years ago when a 20-month-old boy who was under the cabinet’s supervision, along with his 14-year-old mother, ingested drain cleaner and died. The Courier-Journal and the Herald-Leader sought records of the cabinet’s investigation. The cabinet, citing privacy concerns it attributed to federal law, refused. The newspapers sued, and Judge Shepherd ruled the records were open for public inspection.

The cabinet then produced a 13-page report, but the state had redacted portions, again citing privacy. The judge ordered the cabinet to bring all the records to his office so he could decide what was and was not public.

Having won that case and a court ruling that records in these tragic cases are public, the newspapers sought records for deaths after July 1, 2009, and two in 2008. The cabinet issued emergency regulations, which Judge Shepherd has now ruled were not binding. The newspapers sued again, and the cabinet sought to move the case to federal court, but the federal judge sent it back to Judge Shepherd.

This is not how government officials are supposed to act. It is not how Gov. Steve Beshear pledged his administration would act. And yet here we are. Instead of spending money to fix whatever needs to be fixed in child services to protect children, the state is wasting time and tax dollars pretending the law isn’t the law, strutting defiantly as if it knows more about the law than a judge, and showing its utter contempt for the citizens of this state and the judiciary. Meanwhile, other children may be at risk.

Where are we when the government won’t obey the law?

Gov. Beshear needs to step off the campaign trail long enough to have a one-way conversation with cabinet Secretary Janie Miller and her team of lawyers. The governor ran four years ago as the transparency candidate, but his administration’s record is disheartening.  Secretary Miller needs to put an end to what Judge Shepherd called the “culture of secrecy,” either convincing her legal team the cabinet must be accountable to the public for its actions or finding new lawyers who believe in obeying court orders. If she can’t do either, Gov. Beshear needs to ask for her resignation. And Gov. Beshear owes the public an explanation of why he has allowed this misuse of public money and the courts to drag on.

That would be public accountability.

Mike Farrell is the director of the Scripps Howard First Amendment Center at the University of Kentucky and an associate professor in the School of Journalism and Telecommunications. He was a journalist for nearly 20 years at The Kentucky Post. His views are his own and not those of the university or of KyForward.