Their deaths or injuries are reported in detail in files kept by the Cabinet for Health and Family Services, which investigated the abuse or neglect they suffered. And for the past three days, officials with the cabinet, including social workers, testified about why some of the details, including in some cases the name of the abuser, should be kept from the public.
The hearing in Frankfort Circuit Court was the latest in an on-going legal battle between the Cabinet, which has fought releasing the case files, and the state’s two largest newspapers. The Courier-Journal and the Lexington Herald Leader both filed open-records requests seeking the files of those children killed or severely injured by abuse or neglect.
The Cabinet denied the records and the case ended up in court. Last year, the Cabinet began releasing files, but redacted information officials argue protects the privacy of those involved, including in some cases people charged criminally or found to have perpetrated abuse.
Since Monday, Cabinet officials have argued that protecting the children and families involved in the case should be the primary concern.
“These aren’t just cases,” said Teresa James, commissioner of the Department of Community Based Services, which oversees abuse investigations. “These are little bitty vulnerable people.”
James explained that the Cabinet developed a protocol on what to take out of files released to the public and applied it to each of the 140 cases involved in the lawsuit. Those redactions include the names of all children mentioned, all adults who were not involved in the abuse, all unsubstantiated prior reports of abuse and other details.
In many cases, the files contain documents, such as court records, newspaper articles, and police reports, that are available to the public. Attorneys for the newspapers argued that since information is already out there in the public, they should not be protected by the Cabinet.
Jon Fleischaker, an attorney for The Courier-Journal, said he believes that the newspapers illustrated their point in the three-day hearing and feel confident Judge Phillip Shepherd understands that the files were “severely over-redacted.”
Fleischaker said the newspapers want to ensure that “there is enough information made public so that the public can make a determination on what went wrong … where we could do better” in protecting children.
Throughout the hearing Judge Phillip Shepherd, who had previously ordered the Cabinet to release the records, asked questions of the Cabinet, asking officials how they strike a balance between protecting children and the public’s right to know what a public agency is doing in response to abuse.
Shepherd will now take written arguments from the parties to consider before issuing a ruling on whether the Cabinet has removed too much information from the files.
Before court concluded Wednesday, he told Cabinet attorneys that he was struggling to understand how they could make some of the redactions to public documents found in its files.
“That could be interpreted as an effort to obstruct public access to information that’s publicly available,” Shepherd said, saying that he did not believe it showed “good faith.”
Shepherd did not give a time table for making his decision in the case.
Attorneys for the newspapers asked James questions all day Wednesday about specific cases, asking about why information was removed.
In one case, the 2010 death of 4-month-old Rafe Calvert, James acknowledged that there were errors made in investigating the case. She also said that just last week, the case was reclassified based on the autopsy, which had never been obtained by the Cabinet until preparation for this hearing.
Rafe, who had been born premature, died while sleeping at home in Jefferson County, and the cause of death was never determined. The Cabinet had substantiated medical neglect by Rafe’s parents, both of whose names were taken out of the file. Rafe had missed several medical appointments, prompting a healthcare worker to report suspected neglect to the Cabinet.
But records show the Cabinet did not respond to the report until several days later and then learned that Rafe had died. And it wasn’t until last week that the Cabinet got the autopsy report and changed the finding in Rafe’s death, saying while there was medical neglect there was no neglect tied to the baby’s death.
Shepherd raised questions about that situation, because now the case would not be considered a death due to neglect and would no longer be considered an open record under Shepherd’s ruling.
“I don’t understand that the Cabinet doesn’t take the position to assume that it’s connected,“” Shepherd said.