By Beth Musgrave
FRANKFORT — A proposal that would give an independent review panel more records on abused children who have been killed or critically injured will be heard by a House committee next week, its sponsor said Friday.
Rep. Tom Burch, D-Louisville, said House Bill 290 would provide more transparency and oversight of Kentucky’s child protection system by appointing an independent panel of 20 members — police officers, doctors, social workers and prosecutors — to review the worst child abuse cases and make recommendations for improving protection efforts. There would be 15 voting members and five non-voting members.
“This is the first time that we’ve ever been able to put eyes into the Cabinet (for Health and Family Services),” Burch said Friday. “No secrecy. No withholding. No excuses. We want complete records turned over to see whether any children are falling through the cracks of the system.”
However, an attorney with the Kentucky Press Association said the industry group, whose members include the Lexington Herald-Leader, will oppose the bill because too much of the panel’s work would be done in secret.
Gov. Steve Beshear created an independent review panel of experts to review child abuse deaths by executive order in July after a series of newspaper articles highlighted shortcomings in the child protection system. The General Assembly must approve legislation for the review panel to continue its work beyond this year.
The panel – which has met twice since July — has only seen redacted copies of case files from the cabinet’s Department for Community Based Services, which oversees child protection. Panel members have said they could not follow what happened in many of the cases because of missing and redacted information in the files.
Burch’s bill would give the panel access to unedited versions of the files, along with other documents the cabinet doesn’t always collect, such as medical, school and juvenile justice records.
The bill says records that are already blocked from public release under state and federal law would remain private. It also would allow the panel to close portions of its meetings when it discusses individual cases.
Jon Fleischaker, a lawyer for the Kentucky Press Association, said the bill allows too much of the panel’s work to be kept secret. The public would have little way of determining if the panel is doing its job and how it came to its conclusions, he said.
“I really think that the more you close this process, the bigger the step backward it is,” Fleischaker said.
Fleischaker contends that the bill’s wording would allow the panel to exempt all of its records from disclosure, including documents that are otherwise public under the Kentucky Open Records Act.
There is no reason to close portions of a meeting where child deaths are discussed, he said, because a deceased person does not have a right to privacy.
“When you are talking about fatalities, when a child is dead, there is no privacy,” Fleischaker said. “The persons that are responsible in almost all of these cases have already been publicly identified in a criminal case. There is no reason to talk about it in private.”
Fleischaker also said he was concerned that the bill prohibits people from talking about what happened during closed portions of the panel’s meeting. The provision could violate someone’s First Amendment right to free speech, he said.
“What if a parent wanted to talk about what happened?” Fleischaker said.
Burch said Friday that he believes most of the panels records would still be available to the public and that only limited portions of its meeting would be closed.
“I don’t think we’ll have to go into executive (closed) session very often on these cases,” Burch said.
Kentucky’s two largest newspapers and the Cabinet for Health and Family Services have been fighting in court for more than three years over what information can be made public after a child dies or nearly dies as a result of abuse or neglect.
A judge has ruled twice that the public should have access to social worker records in such cases, but the state and the newspapers remain at odds over what information in the files can be censored. That case is pending before the Kentucky Supreme Court.
Terry Brooks, executive director of Kentucky Youth Advocates, said Burch’s bill helps the panel get the documents it needs but closes too much of the panel’s work to the public.
“A key weakness is that it fails to open the process and continues to make the panel too much of a star chamber proceeding,” Brooks said.
Burch said he expects HB 290 to be heard next week in the House Health and Welfare Committee, which he chairs. He also said he is open to making some changes in the bill.
Sen. Julie Denton, R-Louisville, also may file a bill that would establish an independent review panel for the worst child abuse cases. Denton is chairwoman of the Senate Health and Welfare Committee.
Burch said he and Denton disagree on where the external review panel should be housed within state government. Burch’s bill keeps the panel attached to the Justice and Public Safety Cabinet, where Beshear put it.
Denton has suggested attaching the panel to the Legislative Research Commission, the administrative arm of the General Assembly.
Burch said such a move would cost too much money, but Brooks said he believes the panel should be removed from any influence by the executive branch of state government.
Denton said Friday that she had not seen Burch’s bill and could not comment on its contents.
Under HB 290, the panel would meet quarterly and would develop recommendations on how to improve the child protection system by Dec. 1. Those recommendations would be shared with the legislature, State Supreme Court Chief Justice John D. Minton Jr., the cabinet and Beshear.