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June 2012
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EXPENSIVE Judge gives right lesson to records law violators

Tuesday a Frankfort judge ordered the Kentucky Cabinet for Health and Family Services to pay a combined $301,784 in legal fees to The Louisville Courier-Journal and The Lexington Herald-Leader for violations of Kentucky's Open Records Act. Franklin Circuit Judge Phillip Shepherd also declined to reconsider his earlier decision to fine the cabinet $756,000 for the same violations of the Open Records Act.

It seems appropriate that the combined penalties of more than $1,000,000 against the state came down during Sunshine Week, a nationwide effort by news organizations and journalists to raise awareness of the importance of public access to government records and meetings.

Judge Shepherd's penalties were based on a finding that the cabinet "willfully withheld" records the two newspapers sought relating to children who were killed while under the state's supervision. For years the cabinet had successfully deflected newspaper inquiries into such incidents by hiding behind confidentiality laws designed to protect the identity of children in state control.

The Courier-Journal reported in its article about Shepherd's ruling that the judge referred to dozens of children who have died in state custody, including four he specifically named, and said their deaths were not "inevitable." Shepherd wrote, "The record in this case demonstrates that such preventable tragedies will continue to occur as long as the Cabinet's conduct in child-fatality cases remains effectively shielded from public scrutiny."

One would hope that the more than $1 million in penalties and attorneys fees would serve as a powerful lesson to the cabinet and other government agencies that sometimes seem to see obstructing legitimate requests for public records as a game.

The Paxton Media Group-owned newspaper in Owensboro recently received $24,000 in legal fees from the City of Owensboro after the city was found to have willfully and wrongfully withheld public records. The city paid after the Kentucky Court of Appeals upheld the award. The publisher in Owensboro later was advised that a well-known lobbying group for Kentucky cities had urged Owensboro to fight the newspaper "on principle" even though the city's denial of the records had no legal merit.

The truly unfortunate aspect of these cases is that in the end, it's not the government entities that pay for such illegality. It's the taxpayers who get stuck with the bill for the fines and legal fees.

Last month Republican Sen. Julie Denton of Louisville, expressing outrage at the conduct that led to the $756,000 award against the Cabinet for Health and Family Services referenced above, filed a bill that would require agency leaders to pay court awards and attorney fees out of their own pockets in cases where their agencies willfully and wrongfully withhold public records. Her bill would also require such officials to lose their jobs and be banned from holding any other public office in the state for five years.

That bill will likely go nowhere, although something like it may ultimately be what it takes to stop public officials from throwing away millions in tax money every year in efforts to hide public information that may not reflect well on them.

The Open Records Act was not written for the media. It does not exist in this state (and in some form, in every state) just to give reporters something to write about. It exists for the benefit of the public - the people who pay the bills - so that they can have the information necessary to hold accountable the people they elect and the agencies whose duty it is to serve them.

The Open Records Act's importance to good government cannot be overstated. And it would be in the public's best interest if changes were made so that officials who willfully violate the law do have something to lose other than taxpayers' money.

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