Update: The Senate concurred with House amendments and repassed SB 18-223, sending the bill to the governor.
By Jeffrey A. Roberts
CFOIC Executive Director
Colorado lawmakers are poised to close public access to autopsy reports on minors, bowing to a request from county coroners who say disclosure of the records unnecessarily invades the privacy of families and encourages copycat teen suicides.
Journalist associations and open government advocates argue that juvenile autopsy reports are important tools of transparency that help the public understand the circumstances of suspicious child deaths, hold the coroners accountable and allow for the discovery of serious flaws in the state’s child welfare system.
But Senate Bill 18-223 passed the House on a voice vote Monday night, making the reports confidential and available only to certain parties. An amendment permits “any person” to petition a district court for access to a report “on the grounds that disclosure … constitutes a significant public benefit.”
That’s opposite of how public access to autopsy reports has worked for many years in Colorado. Autopsy reports are specifically excluded from a Colorado Open Records Act (CORA) provision that makes medical records confidential, and the Colorado Court of Appeals ruled in 1987 that a records custodian can deny inspection of an autopsy report on a homicide victim only by showing a court that disclosure would cause “substantial injury to the public interest.”
Flipping the legal burden to the requester is “exactly the intent of this bill,” as amended, said Rep. Matt Gray, the House sponsor of SB 18-223.
“This amendment says that the majority of young folks who die, folks who die under the age of 18, their medical records and the intense and gruesome details of how they died are not in the public interest,” the Broomfield Democrat said. “That is family information. That is not something that any individual who walks in off the street should have access to.”
Gray said the revised bill also recognizes that, in a limited number of cases, “there will be a public interest and there will be a chance to have access to that information.”
The measure, if it becomes law, will direct a district court to provide access to a child autopsy report upon a finding that “public disclosure outweighs the privacy interests of the deceased and the members of the family of the deceased,” and the sought-after information is not otherwise publicly available.
The phrase in the bill “significant public benefit” puzzled some legislators. “What constitutes a significant public benefit?” asked Rep. Joe Salazar, D-Thornton, although he supported the proposal. “Courts are going to have to spin around on this one and try to figure out what that means.”
County coroners, led by El Paso County Coroner Robert Bux, asked for SB 18-223, telling lawmakers in committee hearings that public access to the reports sometimes leads to “contagion” suicides and homicides, although they did not talk about specific cases. They also did not show examples of autopsy reports being irresponsibly or haphazardly published by news organizations.
Journalists were among those articulating the public interest in keeping child autopsy reports open. They cited a joint 2012 investigation by The Denver Post and 9NEWS, “Failed to Death,” which led to reforms of Colorado’s child welfare system. The news organizations were able to classify several deaths as abuse through access to child autopsy reports, eventually showing that 72 of 175 Colorado children who had died of child abuse in the previous five years were known to the government system that was supposed to keep them safe.
The Colorado Freedom of Information Coalition opposes SB 18-223 as do the Colorado Press Association and the Colorado Broadcasters Association. The three organizations suggested a compromise that would have required the disclosure of basic elements of a child autopsy report, but that proposal was rejected by the coroners and never introduced by the bill’s sponsors.
Rep. Cole Wist said during House floor discussion Monday that he supports the bill, but the Centennial Republican issued what he called a “cautionary note.”
“Here’s my overriding concern. I think we can come up with a lot of examples of sensitive issues in public records, and we are creating an exception in this bill to the general discoverability of a public record,” Wist said. “I hope we don’t go down a slippery slope here where we are looking at various departments and saying, ‘This kind of record is too sensitive and we need to put this on ice.’
“Government is better when it’s transparent,” Wist said, “and the reason we have open records laws is so citizens can scrutinize the way our government functions … The transparency of public records is a value we need to protect.”
After a final House vote, SB 18-223 will go back to the Senate for consideration of House amendments.
Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Visit CFOIC’s legislature page to track bills in the General Assembly that could affect the flow or availability of information in Colorado.