By Bill Estep
A circuit judge plans to release new guidance on what information the state can withhold when it releases files on children who die or nearly die as a result of abuse or neglect.
Franklin Circuit Judge Phillip Shepherd said Wednesday it seemed almost certain that rules the state had proposed to use would result in information being withheld that should be public under the law.
Shepherd’s ruling comes after the Lexington Herald-Leader and The (Louisville) Courier-Journal filed complaints against the Cabinet for Health and Family Services.
Under state law, the cabinet must do a review of its performance when a child with whom it had prior contact — such as a child placed in foster care — dies from abuse or neglect.
The newspapers sued to get access to case files on such deaths, including those internal reviews.
Shepherd ruled last month that the files, which the cabinet had long refused to release, were public records.
The cabinet recently gave the newspapers copies of 86 internal reviews done after the deaths and near-deaths of children in 2009 and 2010, but withheld a range of information, including the counties where the incidents happened and the names of people suspected of abusing or neglecting the children.
The cabinet also proposed to redact a broad range of information from the larger case files.
The newspapers objected to the cabinet’s protocol for redactions.
“This protocol is subject to an interpretation that will very likely be overbroad,” Kif Skidmore, the Herald-Leader’s attorney, said at a hearing Wednesday morning.
Shepherd agreed, saying the protocol could be applied in a way that would “completely undermine the court’s order to produce these records.”
He said he would issue new guidance on the issue to the cabinet, and set up a mediation process the newspapers and cabinet can use to resolve disputes when the cabinet starts producing the case files next year.
Shepherd also ordered the cabinet to give him unaltered copies of the internal reviews of fatalities and near-deaths by the end of Thursday. Shepherd will review those and decide if the newspapers should get additional information the cabinet initially withheld from them.
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