By Jeffrey A. Roberts
CFOIC Executive Director
The Colorado Department of Human Services wants the state’s highest court to review a recent appellate court opinion that could force the disclosure of aggregate statistics about child-abuse hotline calls made from licensed residential care facilities.
In November, the Court of Appeals sided with The Colorado Sun and 9NEWS in ruling that the Colorado Children’s Code doesn’t necessarily prohibit DHS from publicly releasing the number of Colorado Child Abuse and Neglect Hotline calls placed over three years from the Mount St. Vincent, Cleo Wallace and Tennyson Center facilities.
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.”
But in a certiorari petition filed with the Colorado Supreme Court last week, Assistant Attorney General Jennifer Carty called the Court of Appeals opinion “legally erroneous” and claimed it “puts the safety and privacy of children, families, and informants in jeopardy.”
“This Court needs to address appropriate parameters of disclosure for highly sensitive information in reports of child abuse and neglect,” Carty wrote for the human services department.
The legal dispute began in 2021 following stories 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.
The state agency claimed the child abuse statistics sought by the news organizations under the Colorado Open Records Act 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 Sun and 9NEWS, represented by media attorney (and Colorado Freedom of Information Coalition president) Steve Zansberg, argued that specific address information by itself isn’t sufficient to figure out someone’s identity.
The Court of Appeals, in a 2-1 decision, agreed with Zansberg that the statute “prohibits the disclosure of an address only if it constitutes identifying information.”
Writing for the majority, Judge Elizabeth Harris reasoned that DHS’ interpretation of the law “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.’”
Carty, however, wrote in the certiorari petition that section 19-1-307(1)(a) of the Children’s Code “unambiguously prohibits disclosure of the names and addresses of children, family, or informants in child abuse reports.” The Court of Appeals majority misapplied case law, she contended, by concluding DHS “must conduct an independent analysis as to whether either a name or an address is identifying before determining its release is prohibited. This is not so. And this reasoning flouts the clear statutory language.”
The petition says the Court of Appeals ruling “significantly enhances the agency’s burden to determine whether an address is, in fact, identifying.” It also argues that the appellate court misinterpreted a 2022 ruling in which the U.S. 10th Circuit Court of Appeals held that a portion of the Children’s Code criminalizing the public disclosure of both identifying and nonidentifying child abuse and neglect records violates the First Amendment.
“Contrary to the majority’s reading, the (federal appeals) court analysis did not create a question of whether ‘name and address’ were identifying information,” Carty wrote.
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