Appeals Court won't release records to advocates

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Associated Press

Posted on May 9, 2013 at 1:02 PM

Updated Thursday, May 9 at 1:02 PM

LOUISVILLE, Ky. (AP) — The Kentucky Court of Appeals has ruled the Council on Developmental Disabilities has no right to review the records of two disabled men who died in state care in 2009.

The men were wards of the state and had no family members involved in their care. Both died shortly after being moved to new homes.

Council Chief Executive Donovan Fornwalt told The Courier-Journal (http://cjky.it/173hHUz) on Wednesday that he was concerned that the court seemed to think the Kentucky Cabinet for Health and Family Services should police itself.

The government argued the records are confidential. The council argued that there is an exception in the law for agencies that have "a legitimate interest in the case."

The appeals court ruled the council does not have such an interest. One member dissented.

Judge Joy Moore of Burlington used unusually harsh language in her dissent, writing that it is "highly disingenuous to say that an agency that has such a long-term investment in individuals with disabilities does not have a real, valid or genuine interest" in the investigations of their deaths.

"Disclosure is absolutely warranted in this case, and it only adds to the tragedy of Mr. Farris' death that the events leading to his death will not be exposed to public scrutiny," she wrote. "I firmly dissent."

Donovan Fornwalt, the council's chief executive, said the agency likely will ask the Kentucky Supreme Court to hear the case.

Fornwalt said it was disturbing that the court ruled only other government agencies have a right to such records, which he said "smacks of the fox guarding the henhouse."

"One of our biggest concerns in recent years is that attorneys for the cabinet have embraced a culture of secrecy — to protect the government and its employees, with a lot less emphasis on protecting individuals who may have been harmed," he said.

Cabinet spokeswoman Jill Midkiff said officials were pleased with the ruling.

"Although the council is a fine organization and an effective advocate for its members, it clearly does not meet the statutory criteria" to receive the records requested, she said.

Jon Klein, a cabinet lawyer, said in the agency's brief that there is no intent to "shield its programs from outside scrutiny."

"Put simply, the cabinet is not allowed to release to the council the records that it requests," Klein wrote, adding that releasing the information is prohibited "for the good and sensible reason" that it would "offend the dignity of the private individuals they involve."

The cabinet said there were no allegations of abuse or neglect and that the men, who were 59 and 61 years old, lived "long lives given their medical diagnoses."

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Information from: The Courier-Journal, http://www.courier-journal.com

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