By Jeffrey A. Roberts
CFOIC Executive Director

Because of a 2023 law that protects the privacy of juveniles, the Colorado Judicial Department plans to limit attorneys’ access to criminal court records and clerks may take longer to process document requests from journalists and the public.

Senate Bill 23-075 requires the deletion of names and identifying information of child victims and witnesses from criminal justice records before they are released, but the courts “do not have any way of identifying affected records without word-for-word review of each document to flag and redact the newly protected information,” says a recent judicial branch memo.

“The Department must therefore secure all pertinent criminal records in” the Colorado courts e-filing system, starting Jan. 1, 2024, it adds.

The new policy restricts access to felony, misdemeanor and DUI traffic files only to the attorneys of record in those cases. Those not representing parties will be required to submit requests to a court clerk, who will review and redact, if necessary, the requested documents before releasing “a public copy.” They may be charged for the clerk’s time, as allowed under Chief Justice Directive 05-01.

That’s pretty much how it currently works for the news media and public, who from now on may experience delays when requesting criminal court records because of the new law and policy, according to Jon Sarché, deputy public information officer for the judicial branch.  

“The biggest change will be that obtaining copies of court records in felony, misdemeanor and DUI cases could take longer,” Sarché told the Colorado Freedom of Information Coalition. Because he and Public Information Officer Rob McCallum will no longer have access to “most or all” filings in criminal cases, the court clerks’ offices around the state will be the only source for those documents.

“And those offices will have to review every document that’s requested to make sure that any child victims’ or witnesses’ names are redacted,” Sarché wrote in an email to CFOIC.

Both courthouse and remote public access terminals no longer will provide links to trial-court records in criminal cases on appeal, he added. Appellate briefs in criminal cases shouldn’t be affected because the Colorado Supreme Court and Colorado Court of Appeals already have rules requiring that briefs contain only the initials of minors. The registers of actions available on CoCourts.com also should not be affected.

While the new policy could impact timely news reporting, Boulder lawyer Janene McCabe called it “a massive sledgehammer approach” that will impede the ability of defense attorneys to adequately represent their clients. McCabe, who is president of the Colorado Criminal Defense Bar, told CFOIC defense attorneys rely on quick and easy access to criminal records for multiple reasons such as reviewing their clients’ past cases and the cases of any co-defendants.

“It’s really important for me to see what’s happening in the co-defendant’s case,” she said. “How do I effectively represent my client when there is a filing that potentially impacts my client and I can’t access it?”

McCabe said lawyers must check for possible conflicts of interest before they agree to take on a client. But if a lawyer wasn’t the attorney of record in a client’s past case or in another case where the client was a juvenile victim or witness, “now we can’t get access. That makes no sense.”

She predicted the new policy will “flood” the judicial system with records requests, also lengthening delays in processing requests for the news media and public. “What does that delay look like? In the meantime, does the client go unrepresented because no one can get access to the files?”

McCabe questions why the Colorado judiciary doesn’t institute an electronic records filing system like PACER, the federal system that requires attorneys to redact confidential information from documents before they are uploaded.

“It’s not a bad idea to think about putting the onus on those who are uploading the records,” she said.

The judicial department memo says “[t]he expansive mandate of SB23-075, coupled with the Department’s operational constraints, requires these broad changes across criminal cases. The current system cannot auto-detect documents concerning child victims or witnesses.”

A planned system upgrade “will enable court staff to flag such cases,” it adds, “but its effectiveness hinges on when staff receive notice about a child’s involvement. This mechanism thus lacks the precision needed to guarantee that every applicable case is flagged. Moreover, the large volume of existing documents makes a retroactive search for every record concerning a child victim or witness impractical.”

Before SB 23-075, the Colorado Criminal Justice Records Act (CCJRA) required the redaction of names and identifying information of children who were victims of certain sexual offenses.

Lawmakers passed the additional restrictions after hearing testimony about cases in which the names of minor victims and witnesses were not redacted from records — even though they could have been under CCJRA’s “contrary to the public interest” provision. One case was the June 11, 2022, murder of a 17-year-old at the Colorado Springs Walgreens where she worked. Another was a Nov. 19, 2021, shooting in the parking lot of Hinkley High School in Aurora.

The new law permits a news organization or anyone else to argue in court for the disclosure of the name of a child victim or witness — but only if they can show “that the public interest in accessing the name and identifying information … substantially outweighs the harm to the privacy interest of the child victim, child witness” or their legal guardians.

SB 23-075 is expected to increase judicial department expenditures by $480,000 in FY 2023-24 and $572,241 in FY 2024-25, according to the bill’s fiscal note, which estimates the courts will potentially need to review and possibly redact 850,000 documents per year.

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