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Amye Bensenhaver: ‘Sunshine is a disinfectant’ and the law; reporter Yetter tells stories of child deaths

In 2016, the Kentucky Court of Appeals issued a scathing opinion to the Cabinet for Health and Family Services in an open records dispute involving access to child fatality or near fatality records maintained by the Cabinet.

Reporter Debby Yetter’s devastating analysis of where Kentucky is today — three years after the court condemned the culture of secrecy in the Cabinet and nine years after the media’s epic open records battle which culminated in that opinion began — appeared in Sunday’s Courier Journal.

But there is one very significant difference between these articles and the articles Yetter and others — including Lexington Herald-Leader reporter Bill Estep and Todd County Standard editor Ryan Craig — wrote in the past.

C-J reporter Debbie Yetter

Yetter’s article gives no indication whatsoever that the Cabinet — as it is currently configured — attempted to avoid its legal obligations under the open records law by withholding records relating to child fatalities or near fatalities.

Yetter explained:

“While most child protection cases are confidential, the Courier Journal was able to gather details about cases . . . from state social service records that are subject to public release in instances in which a child dies or nearly dies from neglect or abuse.”

She later confirmed that the Cabinet raised no objection to disclosure of child fatality or near fatality records she requested in gathering information for her series of articles.

She obtained some information from public discussions during meetings of the Child Fatality and Near Fatality External Review Panel — created by lawmakers in 2013 in response to media coverage of the plight of Kentucky’s abused and neglected children — and some from court documents, but she obtained most of the information from Cabinet records.

That’s a far cry from the resistance, subterfuge, and deceit she and others encountered from the Cabinet in 2009.

In its 2016 opinion, the Kentucky Court of Appeals affirmed the imposition of penalties against the Cabinet of $756,000 for willfully withholding records in 140 cases involving the deaths or near-deaths of children.

The court reasoned:

“The penalty we affirm is a substantial one. Substantial, too, is the legal obligation the Cabinet owed the public and the effort it expended in attempting to escape it. 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 Cabinet’s conduct in this case was indeed egregious. The face of the record reveals the ‘culture of secrecy’ of which the trial court spoke, and 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. We could not disagree more. ‘Publicity,’ Justice Brandeis tells us, ‘is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.’

“In sum, we affirm the trial court, but we also echo its exasperation at the Cabinet’s systematic and categorical disregard for the rule of law – both as codified in the Open Records Act and as handed down by the Franklin Circuit Court.

“The Open Records Act is neither an ideal nor a suggestion. It is the law. Public entities must permit inspection of public records as required or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

Yetter’s series confirms that we continue to fail Kentucky’s children at an even more alarming rate than recounted in her original articles. But it also confirms that — at least with respect to child fatality and near fatality records — there has been a change in the “culture of secrecy” that once existed at the Cabinet for Health and Family Services.

Finally, it confirms that examination of public records exposes the factors contributing to the tragically high incidence of child fatalities and near fatalities in Kentucky: epidemic drug use, co-dependent personal relationships, mental illness, and failure to report coupled with decreasing numbers of overburdened caseworkers to address a rapidly increasing number of abuse and neglect cases.

The records disclose that errors are still being made and abused children are still being left in the homes where they are victimized. Cabinet officials offer assurances that reform efforts are underway to correct these errors.

Sadly, the records suggest no temporary, much less permanent, solutions.

In this tragic context, there is no victory except, perhaps, the victory of the grim but necessary truth over lies, deceit, and secrecy.

Amye Bensenhaver is a retired assistant attorney general, open government advocate, and blogger for the University of Kentucky Scripps Howard First Amendment Center. Along with Jennifer P. Brown, former editor of the Kentucky New Era and publisher of an online news site in her hometown of Hopkinsville, she recently helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability. This article first appeared on the Kentucky Open Government’s Facebook page.

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