Tenth Circuit argues key provision of Colorado child abuse privacy law violates First Amendment

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In a decision with a potentially wide impact, Peck vs. McCann, 2022 US app. LEXIS 21956, 43 F.4th 1116 (10th Cir. Aug. 9, 2022), the United States Court of Appeals for the Tenth Circuit ruled that a Colorado law that requires records of child abuse reports remain confidential violated the First Amendment. The court held that a key provision of the law, which punishes the disclosure of information and data that does not identify the child, family or informant, is not narrowly tailored to promote the best interests imperative of the state to prevent the disclosure of identifying information regarding child abuse. . Given the reasons behind the decision, similar privacy laws in other states may now be at risk.

Colorado Child Abuse Records Privacy Act

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 other identifying information contained in such reports…be confidential.” CRS §19-1-307(1)(a) (2021).This requirement is enforced by two subsections containing separate penalties . Firstunder Section 307(c)(1), “[a]any person who breaches any provision of [] subsection (1) is guilty of a class 2 minor offence…”. Secondunder subsection 307(4),

Anyone who improperly discloses or willfully authorizes or encourages the disclosure of data or information contained in records and reports of child abuse or neglect to persons not authorized to access such information by this section or by article 19-1-303 commits an offense 1 misdemeanor … .

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