The justices voted 3-3 on whether to grant a stay of a lower court’s order that the Cabinet for Health and Family Services open the cases. Because the court was evenly split, a previous decision by the appeals court denying the stay was upheld.
Franklin Circuit Judge Phillip Shepherd had ruled that The Courier-Journal and the Lexington Herald-Leader should be allowed access to internal reviews of cases in which children died or were seriously injured from abuse or neglect.
That means the cabinet must provide case files following a protocol set out by Shepherd spelling out what information can be redacted by the cabinet and ordering the cabinet to explain each redaction. Shepherd had ruled that previous redactions were overly broad, making it impossible to assess how effectively the cabinet did its job protecting children.
Despite asking for the stay, cabinet officials have released some case files with redactions that officials describe as “minimal.”
Cabinet spokeswoman Jill Midkiff responded to the Supreme Court decision, saying Thursday that the cabinet has never attempted to protect the names of social workers involved in the cases and has only made redactions to protect the privacy of some parties involved.
The Supreme Court’s tie vote “demonstrates that the cabinet made strong arguments to protect the privacy of innocent siblings and the identity of all individuals who report suspected abuse,” she said.
Attorney Jon Fleischaker, who represents the newspapers, said the cabinet has failed to comply with Shepherd’s order. Not only have cabinet officials not turned over every case requested, Fleischaker said they have failed to fully explain why each redaction is made.
For example, the records indicate that names of adults who were not involved in the neglect were withheld, but do not provide a reason. Or, in some cases, reports where neglect wasn’t substantiated have been withheld from the files without explanation.
Fleischaker said those are key details that must be seen for a full assessment of whether the information was withheld in keeping with Shepherd’s order.
In more recent case files that have been released, the cabinet has indicated documents were removed, including family and juvenile court documents and medical documents.
Fleischaker said he questions whether those files are simply being left out to avoid releasing them at all. “They play games,” he said of the cabinet.
Midkiff said the redactions are intended to ensure that people can report abuse without fear of retaliation.
“Because the courts’ actions preclude the cabinet from protecting the confidentiality and privacy of all citizens and family members who report suspected abuse, we fear this may have a chilling effect on the voluntary reporting of child abuse or neglect and lead to needless injuries and deaths of children,” Midkiff said.
Thursday’s ruling only deals with the requested stay on releasing information and Fleischaker said it will enable the case to move forward. There are still issues pending on the merits of the case regarding public access to information.
This is the latest round in the lengthy court fight by the state’s two largest newspapers to get records after several high-profile child-death cases. Shepherd has ruled multiple times that there is “no legal basis” for withholding the records.
Fleischaker said he expects to file a motion soon seeking release of the rest of the records. He said he may also ask that the cabinet be held in contempt for failing to comply with Shepherd’s original order in the first place.
“We’re going to go back to court and hold their feet to the fire,” he said.