Court of Appeals sides with The Sun and 9NEWS in dispute over disclosure of child abuse statistics

By Jeffrey A. Roberts
CFOIC Executive Director

The Colorado Children’s Code doesn’t necessarily prohibit the state Department of Human Services from publicly releasing aggregate statistics about child-abuse hotline calls made from licensed residential care facilities, the Colorado Court of Appeals ruled Thursday, reversing a 2021 district court decision.

Two judges on a three-judge appellate panel agreed with an interpretation of the statute made by The Colorado Sun and 9NEWS, which challenged DHS’ denial of their Colorado Open Records Act requests for documents showing the total number of Colorado Child Abuse and Neglect Hotline calls placed over three years from the Mount St. Vincent, Cleo Wallace and Tennyson Center facilities.  

(Credit: 9NEWS video)

The agency claimed the statistics could be used to identify individual informants, children or family members, in violation of a confidentiality provision in the Children’s Code, because the street addresses of the facilities are publicly known. But the news organizations, represented by media attorney Steve Zansberg, argued that specific address information by itself isn’t sufficient to figure out someone’s identity.

The Court of Appeals opinion, written by Judge Elizabeth Harris and released nearly a year after oral arguments, says the statute “prohibits the disclosure of an address only if it constitutes identifying information.”

The judges sent the case back to Denver District Court with instructions to “determine whether, in light of our opinion, the requested records would disclose ‘identifying information’ of a child, family, or informant associated with a child abuse or neglect report.”

Zansberg, who is president of the Colorado Freedom of Information Coalition, said the Court of Appeals opinion “avoids the absurd results that DHS’ proposed interpretation would produce. We hope DHS will accept the court’s well-reasoned ruling and swiftly provide the numeric information that was requested back in 2021 so that both news entities can get on with reporting information that is of tremendous interest to the public.”

The dispute between the news organizations and DHS focused on the meaning of the statute, which says that “reports of child abuse or neglect and the name and address of any child, family, or informant or any other identifying information contained in such reports shall be confidential and shall not be public information.”

An assistant attorney general, representing DHS, argued that “addresses are always identifying” and can be “used in conjunction with other pieces of information to identify an individual.” But Zansberg contended the word “address” in the provision “is one example of information that is modified by the final phrase — ‘other identifying information.’ And so, if an address isn’t identifying information in a particular context … then it’s not identifying information.”

Harris called Zansberg’s interpretation “reasonable.” DHS’ interpretation, she wrote, “would require that some nonidentifying information is kept confidential, a result we cannot square with the legislative history or even with other sections of the Children’s Code, which themselves authorize the public disclosure of information from child abuse reports, so long as the information does not ‘identify individuals.’”

“DHS’s construction may also raise difficult constitutional problems,” Harris added, citing the U.S. 10th Circuit Court of Appeals’ determination in 2022 that a portion of the Children’s Code criminalizing the public disclosure of both identifying and nonidentifying child abuse and neglect records violated the First Amendment.

“This reasoning suggests DHS’s interpretation — which could prohibit the disclosure even of some nonidentifying information (that is, information that would not identify a particular child, family, or informant) — could be an unconstitutional restriction on free speech. By contrast, adopting the media organizations’ interpretation avoids this possible constitutional infirmity,” the opinion says.

Court of Appeals Judge Neeti Pawar dissented: “The suggestion that the General Assembly intended to protect the names and addresses of children in child abuse reports only in certain circumstances is absurd and illogical,” she wrote. “… The only reasonable interpretation is that the names and addresses of children, families, or informants in child abuse reports are always confidential, as is any additional information that is identifying.”

Thursday’s ruling stemmed from 2021 reporting by The Sun and 9NEWS that focused on failings of the system that is supposed to protect and treat vulnerable foster children and youths with severe mental health issues.

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