Advocacy group seeks records for two disabled men

FRANKFORT, Ky. – A group that for 62 years has advocated for people with developmental disabilities asked the Kentucky Supreme Court on Wednesday for access to state records of two disabled men who died while in the state’s care in 2009.

“This court has said over and over again for more than 20 years that the Open Records Act is supposed to mean public disclosure,” argued David Tachau, a Louisville attorney who represents the Council on Developmental Disabilities. “The Open Records Act is supposed to allow people like the council to see whether public servants are in fact serving the public.”

But D. Brent Irvin, attorney for the Kentucky Cabinet for Health and Family Services, said a different state law requires that confidential records in such cases may be released only to government agencies with a legitimate interest in the case.

Irvin noted that both Franklin Circuit Court and the Kentucky Court of Appeals upheld the cabinet’s decision to deny release of the records. “We think the lower courts got it correct. The duty of the court is to ascertain and follow the intent of the legislature, not make policy,” Irvin said.

The council, founded in 1952, requested the records of death investigations of two profoundly disabled wards of the state — Richard Tardy, 61, and Gary Farris, 59 — to find out if they were victims of abuse or neglect.

“The folks we are most concerned about actually do not have families — like these two men — live most of their lives in a state institution,” Donovan Fornwalt, chief executive of the council, said after the hearing. “To claim that only government entities have a right to review records when a ward of the state dies in state custody, really concerns us. It’s the fox guarding the hen house.”

But Irvin said afterward, “We want to make clear that we have no animus toward the council, nor any advocacy organization. We applaud that they are out there trying to help the disabled … Our only interest in this case, as in all cases, is to follow the requirements of the statute.”

The cabinet has said in briefs that Tardy and Farris lived long lives given their medical diagnoses, and that there were no allegations of abuse or neglect.

But the council wants to know if a decision to move Tardy from his former home at the Bingham Center in Louisville to a group home in Somerset, contributed to his death just a few months later. And Farris died after he was transferred from Oakwood, a state-run center in Somerset, to a community home.

Irvin argued Wednesday that the law allows release of confidential records in such cases to government agencies such as law enforcement or perhaps the Board of Nursing or Bar Association which may be investigating certain aspects of a death.

But Tachau said “social service agencies can be public and private.”

After the hearing Tachau said, “The council has a legitimate interest because this is their mission. They get United Way and taxpayer dollars to monitor government program. They are — as part of their mission — trying to make these facilities safer and make the government agencies do their jobs better.”

Tachau likened the case to one brought by two newspapers — The Courier-Journal and the Lexington Herald-Leader — against the cabinet to release records of children who die from abuse or neglect in state care. “They are the same in that the cabinet is using a number of sweeping barriers to prevent public disclosure of their activities. And the Open Records Act says exactly the opposite should be happening.”

Reporter Tom Loftus can be reached at (502) 875-5136. Follow him on Twitter at @TomLoftus_CJ.