Colorado Privacy Law Violates First Amendment, Federal Court of Appeals Says


A Colorado law that prohibits disclosure of all information in child abuse and neglect cases violates the US Constitution, the US 10th Circuit Court of Appeals ruled last week.

The law violates the First Amendment because it is overly broad in prohibiting the disclosure of any information contained in reports or records in cases of child abuse and neglect in the child welfare system of the state, including information that does not identify the child involved, the Denver-based federal appeals court found.

The decision stems from a years-long dispute between Denver family law attorney Jessica Peck and the Colorado Department of Human Services. In a Westword article 2019Peck accused Denver Human Services of improperly seeking to remove a 3-year-old girl from her mother.

After speaking 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 breaches confidentiality in a child protection case can be criminally charged with a misdemeanor.

Peck was not charged or disciplined, but nonetheless challenged strict secrecy laws in a federal lawsuit later that year, arguing that secrecy protected government malpractice. Last week, the 10th Circuit agreed with Peck that part of Colorado’s law violated his First Amendment rights.

The privacy law’s provision that prohibits the disclosure of all information — including non-identifying information — is unconstitutional, the court said. The justices did not rule on a separate provision of the law prohibiting the disclosure of identifying information, concluding that Peck did not have the legal standing to challenge that part of the law.

“This decision preserves the privacy of child victims but affirmatively waives any right to secrecy for misbehaving social workers and others within our family and juvenile justice systems,” Peck said in an email. email Monday. “That’s all we ever wanted.”

Tuesday’s appeals court ruling 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 had argued that most of the other states – 48 – had similar privacy laws on the books and that it was necessary to have such strict rules against the disclosure of information for the protection services of the Childhood states receive federal funding under the Child Abuse Protection and Treatment Act, or CAPTA.

“It’s no excuse for a state that violates the constitutional rights of its citizens to say ‘the federal government is paying us to do it,'” the opinion read. “And in any event, Defendants have produced no affirmative evidence that the federal government would in fact withhold CAPTA funding if Section 307(4) were to be struck off the books or restricted to allow private parties to release non-identifying information from child abuse records.”

Carolyn Tyler, spokeswoman for the Denver District Attorney’s Office, said Monday they are reviewing the decision.

Madlynn Ruble, spokeswoman for the Department of Social Services, said the agency was “disappointed” with the court’s decision to strike down part of the law but “satisfied” that the privacy requirements for credentials remained intact.

“The Colorado Legislature enacted this provision years ago to protect a child’s and family’s right to privacy when involved in the child welfare system,” it said. she said in a statement. “Keeping child abuse and neglect reports and records confidential, except where a professional or agency has a legal right to know, is essential to protecting the privacy of vulnerable children and their families.”


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