In a decision with potentially wide-ranging impact, Peck v. McCann, 2022 U.S. App. LEXIS 21956, 43 F.4th 1116 (10th Cir. Aug. 9, 2022), the U.S. Court of Appeals for the Tenth Circuit ruled that a Colorado statute that requires records of reports of child abuse to be kept confidential violated the First Amendment. The court reasoned that a key provision of the law, which punishes disclosure of information and data that does not identify the child, family, or informant, isn’t narrowly tailored to promote the state’s compelling interest in preventing disclosure of identifying information concerning child abuse. Given the rationales underlying this ruling, similar confidentiality laws in other states could now be in jeopardy.
Colorado’s Law on the Confidentiality of Child Abuse Records
Section 19-1-307 of the Colorado Children’s Code Records and Information Act requires that “reports of child abuse or neglect and the name and address of any child, family, or informant or any other identifying information contained in such reports … be confidential.” C.R.S. §19-1-307(1)(a) (2021). This requirement is enforced by two subsections containing separate penalties. First, under subsection 307(c)(1), “[a]ny person who violates any provision of [] subsection (1) is guilty of a class 2 petty offense … .” Second, under subsection 307(4),
Any person who improperly releases or who willfully permits or encourages the release of data or information contained in the records and reports of child abuse or neglect to persons not entitled to access such information by this section or by section 19-1-303 commits a class 1 misdemeanor … .
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