Dispute Relating to the Release of Records in Case Involving the Death Of A Toddler

When a newspaper was denied access to records from the Cabinet for Health and Family Services relating to a case involving the death of a toddler, they turned to Dinsmore. The paper requested records from the Cabinet following the death of a 20-month old toddler, whose mother had been under investigation by the Cabinet. The Cabinet denied the requests, citing confidentiality provisions of HIPAA and personal privacy exemptions in the Kentucky Revised Statutes (KRS) Open Records Act. The Attorney General had previously upheld the Cabinet’s decision to withhold the records from another newspaper, and that case was headed to the Franklin Circuit Court on appeal. We moved to intervene in the circuit court action, and the motion was granted. The circuit court found that the Cabinet was obligated to provide the records, and had violated the Open Records Act because the state laws cited by the Cabinet did not forbid disclosure of the records. The Court also ruled that attorney’s fees and costs were to be awarded to the newspaper, citing another part of Kentucky’s open records law that says, “Any person who prevails against any agency in any action in the courts regarding a willful violation of [the Kentucky Open Records Law]…may be awarded costs, including reasonable attorney’s fees incurred in connection with the legal action.” The circuit court’s ruling was affirmed by the Kentucky Court of Appeals. This ruling results in not only financial savings for the client, but also establishes clear precedent for asserting that governmental agencies may be responsible for a private litigant’s attorney’s fees when successful in seeking to open government records for public review.