The Richmond Register


January 3, 2014

Judge’s ruling a victory for transparency

FRANKFORT — In his recent ruling smacking the Kentucky Cabinet for Health and Family Services with a $756,000 fine for making “a mockery” of the commonwealth’s Open Records Act, Franklin Circuit Court Judge Phillip Shepherd sent a strong message: transparency matters.

It especially matters in cases where children die or are critically injured as a result of abuse or neglect – despite the involvement of the cabinet and it social workers, which will receive nearly $2 billion in funding from state taxpayers this year.

Nothing the judge could say or do will bring back 20-month-old Kayden Branham, who died in Wayne County after drinking drain cleaner in a trailer where the dangerous drug methamphetamine was being cooked, or 9-year-old Amy Dye from western Kentucky, who was beaten to death with a hydraulic jack handle by her 17-year-old adopted brother.

Neither will the judge’s punitive measures bring back the many other children who have died while under the cabinet’s purview. However, increased transparency resulting from his decision in future similar cases will save many young lives in the years to come.

Shepherd’s decision is the culmination of a long legal battle between the cabinet, which is required to send social workers to investigate reports of suspected child abuse, and the Courier-Journal and Lexington Herald-Leader, which sued the cabinet after being denied information related to how these cases were handled.

“A lack of transparency continues to weaken efforts to protect children from dying at the hands of an abuser,” said Terry Brooks, executive director of Kentucky Youth Advocates.

Jon Fleischaker, the Courier-Journal’s attorney who has been a dedicated proponent of government transparency throughout his career and who represented the newspaper in the lawsuits that led to Shepherd’s decision, noted that while Kentucky has one of the nation’s strongest open-records laws, it correspondingly has one of the least transparent child protection services.

"As a result, Kentucky in recent years ranks among the states with the highest rates of child-abuse deaths,” Fleischaker said. "As this culture of secrecy pervaded Kentucky’s child protection services, the rates of child abuse fatalities and near fatalities rose.”

The judge in his decision shows that not only does transparency matter, a lack of transparency – especially by an agency charged with protecting children who already are suspected of having been abused or neglected – matters perhaps even more.

Noting that his decision is not about assigning blame, satisfying some “unhealthy curiosity” or invading the privacy of mourning families, Shepherd wrote it instead is about “a single, overriding purpose: to ensure both the cabinet and the public do everything possible to prevent the repeat of such tragedies in the future. There can be no effective prevention when there is no public examination of the underlying facts.”

The judge believes shining the light brightly on this public agency – and demanding that transparency statutes are followed – will deter potential future offenses.

Brooks also called for more transparency when it comes to the Child Fatality and Near Fatality External Review Panel, which was established to review the state’s child protection system in order to prevent future deaths.

He stresses the need for it to be independent and credible in order to gain and keep public trust.

Such credibility would be enhanced if panel members would sign a public-disclosure form revealing potential conflicts of interest, Brooks said.  

“The public, the General Assembly and Kentucky’s kids deserve to know just who is charged with investigating these fatalities,” he said. “Do panel members have – or have they had – linkages with the cabinet, and, in fact, the executive branch? Have panel members had a role in campaign contributions with this or future administrations?”

While such disclosures don’t necessarily preclude anyone from serving on the panel, making the information transparent would strengthen the credibility of the panel’s findings.

“We will know clearly who is charged with protecting Kentucky’s kids – and that is a needed extra measure of transparency,” Brooks said. 

Jim Waters is president of the Bluegrass Institute, Kentucky’s  free-market think tank. Reach him at Read previously published columns at 

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