Ky to pay papers nearly $700K to settle suit

Kentucky will pay the state's two largest newspapers nearly $700,000 to settle a long-running dispute over access to records of child abuse deaths and serious injuries.

The agreement ends seven years of litigation that resulted in far-reaching public access to state social service records in cases where children die or are seriously injured by abuse or neglect.

"We've been successful in changing the system for the benefit of children in Kentucky," said Jon Fleischaker, a lawyer for the Courier-Journal. "It's been a hugely successful endeavor."

The lawsuit, dating to 2009, originated under the administration of former Gov. Steve Beshear.

Under Monday's agreement, the state will pay legal costs of $339,000 to the Courier-Journal and $110,000 to the Lexington Herald-Leader. Kentucky also will pay $125,000 each to the newspapers in fines for violating the state open records act by refusing to release the records.

Wes Jackson, president of the Courier-Journal, said the news organization was satisfied with the outcome.

“We are pleased to have final resolution of this case and the resounding message it sends about the importance of Kentucky’s open records law in holding government accountable,” Jackson said.

Jackson said the CJ is evaluating options for using proceeds from the fine to serve the community, fight child abuse and promote government transparency.

The administration of Gov. Matt Bevin, which signed off on the settlement, criticized the Beshear administration for "a lack of transparency and disregard for an open government."

"In the Bevin administration things are very different - we will hold ourselves accountable and be accessible to the public, particularly regarding the most vulnerable members of society,” spokeswoman Jessica Ditto said in a statement.

Terry Brooks, executive director of Kentucky Youth Advocates, said the case brings more transparency and accountability to the state's child protection system.

"It's not really about the newspapers' attorney fees," he said. "It's about adding a process to ensure that tragedies never happen because better safeguards and accountability measures rather than secrecy are at play."

The settlement comes two months after the state Court of Appeals, upholding prior rulings of Franklin Circuit Judge Phillip Shepherd, rejected the state's appeal in the case.

The newspapers, under the settlement, will receive full reimbursement for their legal costs but agreed to accept less than the $756,000 in fines originally ordered by Shepherd as a penalty for repeated violations of the state open records law.

The Bevin administration noted the settlement saves the taxpayers an additional $500,000 in costs.

The litigation came after the newspapers sought records from the Cabinet for Health and Family Services after several high-profile child abuse deaths. The cabinet fought for years to block access to the records, citing confidentiality.

The state has since begun providing such records in conformance with orders by Shepherd, who found that under the state open records law, the cabinet must disclose such information when a child dies or is seriously injured from abuse or neglect.

In February, an appeals court panel decision written by Judge Irv Maze slammed the cabinet for "egregious" behavior in withholding the records and its "culture of secrecy."

The cabinet, Maze wrote, displayed a "misguided belief that the Open Records Act is merely an idea, a suggestion to be taken when it is convenient and flagrantly disregarded when it is not."

The appeals panel upheld the award of attorneys fees to the newspapers and also upheld fines of $756,000  for violating state open records law.

In an appeal to the Supreme Court, the Bevin administration sought only a review of whether the fines should be reduced.

Monday's settlement, in which the state will pay a total $250,000 in fines, ends any further appeals in the case. The appeals court decision is to be published, meaning it can be cited in future litigation.

The case arose after the newspapers began investigating circumstances of two high-profile child deaths.

One involved Kayden Branham, a Wayne County toddler who died in 2009 from drinking drain cleaner being used at a meth lab in the trailer where his teenage parents were staying.

The other involved Amy Dye, a 9-year-old Todd County girl fatally beaten in her adoptive home in 2011 by an older brother.

The records involving Amy were particularly damaging.

That case became a symbol of failures in the state child protection system after records eventually released showed cabinet social services officials had ignored or dismissed repeated abuse allegations involving Amy from teachers at her Todd County Elementary school.

Shepherd, in a series of rulings, upheld the right of the newspapers to review or obtain records in such cases. The judge found that federal law permits disclosure of records in cases where a child dies or is seriously injured from abuse or neglect and state open records law requires the disclosure.

The Todd County Standard, in a separate case, also won the right to obtain records in Amy's case.

Fleischaker, who represented the Todd County newspaper, said the state also has agreed to settle claims in that case by paying the newspaper $33,511 in legal costs and $6,625 in fines for withholding records.

The Appeals Court panel had been harshly critical of the cabinet in a separate opinion in Amy's case, finding officials first ignored the newspaper's request, then falsely denied having any records before eventually providing them to Shepherd, who ordered their release.

Fleischaker said he found the cabinet's actions in that case particularly troubling.

They "were inexplicable," he said. "That's a case that cried out to be resolved."

Contact reporter Deborah Yetter at (502)582-4228 or at dyetter@courier-journal.com.