A Colorado law that prohibits the release of all information in child abuse and neglect cases violates the U.S. Constitution, the 10th U.S. Circuit Court of Appeals ruled last week.
The law violates the First Amendment because it is too broad when it prohibits the release of any information contained in reports or records in child abuse and neglect cases in the state’s child welfare system, including information that does not identify the involved child, the Denver-based federal appeals court found.
The ruling comes out of a years-long dispute between Denver family law attorney Jessica Peck and the Colorado Department of Human Services. In a 2019 Westword article, Peck accused Denver Human Services of wrongly seeking to take a 3-year-old girl from her mother.
After she spoke publicly about the case — without identifying the girl — a judge warned her not to continue sharing information with the media. Under current law, anyone who violates confidentiality in a child welfare case can be charged criminally with a misdemeanor.
Peck was not charged or disciplined, but nevertheless went on to challenge the strict confidentiality laws in a federal lawsuit later that year, arguing that the secrecy protected government malpractice. The 10th Circuit last week agreed with Peck that one part of the Colorado law infringes on her First Amendment rights.
The provision of the confidentiality law that prohibits the release of all information — including non-identifying information — is unconstitutional, the court found. The judges did not rule on a separate provision in the law that prohibits the release of identifying information, finding Peck did not have legal status to challenge that portion of the law.
“This decision maintains privacy for child victims but affirmatively disavows any right to secrecy for misbehaving caseworkers and others within our family and juvenile court systems,” Peck said in an email Monday. “This is all we ever wanted.”
Tuesday’s ruling from the appeals court upholds a lower court’s finding that the law was unconstitutional and rejects arguments to the contrary by Denver District Attorney Beth McCann and the Department of Human Services.
They’d argued that most other states — 48 — have similar confidentiality laws on the books and that having such strict rules against the disclosure of information was necessary for state child protective services to receive federal funding under the Child Abuse Protection and Treatment Act, or CAPTA.
“It is no excuse for a state that is violating the constitutional rights of its citizens to say ‘the federal government is paying us to do it,’” the opinion reads. “And in any event, Defendants have produced no affirmative evidence that the federal government would in fact withhold CAPTA funding were Section 307(4) to be taken off the books or narrowed to allow private parties to disclose non-identifying information from child abuse records.”
Carolyn Tyler, a spokeswoman for the Denver District Attorney’s Office, said Monday they are reviewing the decision.
Madlynn Ruble, a spokeswoman for the Department of Human Services, said the agency was “disappointed” by the court’s decision to strike down part of the law but “pleased” that confidentiality requirements for identifying information were left intact.
“Colorado’s legislature passed this provision years ago to protect a child and family’s right to privacy when involved in the child welfare system,” she said in a statement. “Keeping reports and records of child abuse and neglect confidential, except where a professional or agency has a legal right to know, is key to protecting the privacy of vulnerable children and their families.”
