Colo. Sun v. Brubaker

542 P.3d 1190

2023 COA 101

2023 COA 101

COLORADO SUN and Tegna, Inc., d/b/a KUSA-TV/9News, Plaintiffs-Appellants,

v.Amanda BRUBAKER, in her official capacity as the Records Custodian for the Colorado Department of Human Services, Defendant-Appellee.

Court of Appeals No. 21CA1608

Colorado Court of Appeals, Div. VII.

Announced November 2, 2023

City and County of Denver District Court No. 21CV31379, Honorable Darryl F. Shockley, Judge

Law Office of Steven D. Zansberg, LLC, Steven D. Zansberg, Denver, Colorado, for Plaintiffs-Appellants

Philip J. Weiser, Attorney General, Ann H. Pogue, Second Assistant Attorney General, Bianca E. Miyata, Assistant Solicitor General, Denver, Colorado, for Defendant-Appellee

Opinion by JUDGE HARRIS

¶ 1 This case involves a dispute under the Colorado Open Records Act (CORA), §§ 24-70-201 to -230, C.R.S. 2023. Plaintiffs, Colorado Sun and Tegna, Inc., d/b/a KUSA-TV/9News (the media organizations), requested records under CORA from defendant, Amanda Brubaker, the records custodian for the Colorado Department of Human Services (DHS),¹ showing the total number of child abuse reports received over a three-year period from certain residential child care facilities in Colorado. DHS denied the requests, citing a provision of the Colorado Children’s Code that prohibits disclosure, subject to statutorily enumerated exceptions, of child abuse reports as well as "the name and address of any child, family, or informant or any other identifying information contained in such reports." § 19-1-307(1)(a), C.R.S. 2023. According to DHS, disclosure of the aggregated information would necessarily reveal the address of a child or informant contained in a child abuse report, as the requests were linked to specific addresses—the address of each residential care facility.

¶ 2 On judicial review of DHS’s denial, the district court entered judgment in favor of DHS, and the media organizations appeal.

¶ 3 The question is whether section 19-1-307(1)(a) prohibits, under all circumstances, the disclosure of any address contained in a child abuse report or whether the statute prohibits disclosure of an address only when the address constitutes "identifying information"—that is, information that could lead to the identification of a particular child, family, or informant.

¶ 4 We conclude that the statute is ambiguous. To break the impasse, we turn to the legislative history of section 19-1-307(1)(a) and the possible consequences of adopting either construction. In our view, the evolution of the statutory provision at issue demonstrates that the General Assembly intended to keep confidential only information that could reveal a person’s or family’s identity, and the possible consequences of adopting either interpretation reinforce this conclusion. We therefore adopt the media organizations’ interpretation of the statute.

¶ 5 As a result, we reverse the district court’s judgment and remand the case for further proceedings.

I. Factual Background²

¶ 6 Residential child care facilities (RCCFs) are licensed by DHS to "provide twenty-four-hour group care and treatment" for children, § 26-6-903(29), C.R.S. 2023, most of whom have "serious emotional, behavioral and/or developmental disorders," Off. of Colo.’s Child Prot. Ombudsman (CPO), Investigation Report: CPO Case ID 2017-2736, at 3 (Aug. 12, 2019), https://perma.cc/8RSS-RDKE (CPO Report).

¶ 7 In 2017, DHS revoked the license of an RCCF in Pueblo amidst allegations that staff members had abused and neglected the child residents. Id. The CPO investigated the circumstances surrounding the facility’s closure and issued the CPO Report. The CPO Report documented the total number of child abuse and neglect reports received by the county human services department in the year preceding the closure, as well as the number and percentage of reports "screened out" by the county (i.e., reports that are not assigned to a caseworker for further assessment). Id. at 10–11.

¶ 8 In March 2021, while DHS was allegedly scrutinizing its practices, a second RCCF closed. The CPO disclosed the number of complaints received by county human services officials about the RCCF in the preceding year.

¶ 9 Shortly thereafter, the media organizations sent the following requests to DHS for records concerning other RCCFs:

• "[A]ny documents that show how many calls have been made to the child abuse hotline³ from Mount Saint Vincent (RCCF) and Cleo Wallace (RCCF) from 1/1/2018 to 3/26/2021."

• "The number of hotline calls/abuse and neglect reports/runaways reports from Tennyson Center, Mount St. Vincent, and Cleo Wallace to local child welfare authorities in the last three years, and how many were screened in."

DHS denied the requests "pursuant to CRS 19-1-307(1)(a)." It explained that the responsive records would effectively disclose the address "of the child or informant associated with the hotline calls." Instead, DHS offered to provide the media organizations with the aggregated number of child abuse hotline calls, including the number that were "screened in" (i.e., reports that were referred to a caseworker for further assessment), from all three RCCFs during the relevant period.

¶ 10 The media organizations sued DHS pursuant to section 24-72-204(5), C.R.S. 2023, seeking an order compelling it to produce the requested records. DHS moved to dismiss the complaint on the ground that an address is identifying information that must be kept confidential. The district court granted the motion, concluding that "the Defendant has properly withheld [the requested] information."

II. Statutory Background

A. CORA

¶ 11 "With the passage of CORA, the General Assembly declared it to be the public policy of Colorado that ‘all public records shall be open for inspection by any person, at reasonable times,’ except as otherwise provided by law." Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011) (quoting § 24-72-201, C.R.S. 2023). "Public records" are "all writings made, maintained, or kept by the state [or] any agency … for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds." § 24-72-202(6)(a)(I), C.R.S. 2023.

[1, 2] ¶ 12 DHS does not dispute that child abuse reports are "public records." See § 19-1-302(1)(a), C.R.S. 2023 ("The general assembly declares that information obtained by public agencies in the course of performing their duties under this title [of the Children’s Code] is considered public information under [CORA]."). Still, while the general purpose of CORA is to provide open government through disclosure of public records, its purpose is not to disclose information that falls under an exception in the statute. See Mountain-Plains Inv. Corp. v. Parker Jordan Metro. Dist., 2013 COA 123, ¶ 35, 312 P.3d 260. In light of the strong presumption in favor of disclosure, exceptions to disclosure are narrowly construed, and the record custodian bears the burden to prove that an exception applies. See Shook v. Pitkin Cnty. Bd. of Cnty. Comm’rs, 2015 COA 84, ¶ 6, 411 P.3d 158.

¶ 13 One exception to the rule requiring disclosure is where "inspection would be contrary to any state statute." § 24-72-204(1)(a). DHS relied on this exception in denying the media organizations’ requests, contending that section 19-1-307(1)(a) prohibited disclosure of the requested information.

B. Section 19-1-307(1)(a)

¶ 14 Section 19-1-307(1)(a) provides as follows:

Identifying information—confidential. Except as otherwise provided in this section and section 19-1-303, 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 shall be confidential and shall not be public information.

¶ 15 The earliest iteration of the statute was enacted as part of the Colorado Child Protection Act of 1975 (the 1975 Act) and broadly prohibited disclosure of information in child abuse reports:

Records confidential. (1) It is unlawful for any person or agency to solicit, encourage disclosure of, or disclose the contents of any record or report made under this article.

Ch. 177, sec. 1, § 19-10-115, 1975 Colo. Sess. Laws 654.

¶ 16 Shortly after passage of the 1975 Act, a lawsuit by journalists required a district court to determine whether the strict confidentiality imposed by the statute ran afoul of Colorado’s Public Meetings Law (PML), section 29-9-101, C.R.S. 1975 (repealed 1991). See Gillies v. Schmidt, 38 Colo. App. 233, 234–35, 556 P.2d 82, 84 (1976).

¶ 17 The district court determined that the PML and the records statute could be harmonized by distinguishing "between information which could lead to identification of the child, parents or informant" and "information in the reports which is ‘nonconfidential.’" Id. at 237, 556 P.2d at 86. Nonconfidential information could be discussed at public meetings, the district court ruled, while "identifying information" could only be discussed in nonpublic executive sessions. Id.

¶ 18 A division of the court of appeals rejected the district court’s reasoning. It concluded that the statute prohibited disclosure of the "entire contents" of a child abuse report and, therefore, the distinction between identifying information and nonconfidential information had no statutory basis. Id.

¶ 19 Within a year, the legislature amended the statute. The new act (the 1977 Act) included an amended legislative declaration (with the amended language marked in capital letters):

Legislative declaration. The general assembly hereby declares that the complete reporting of child abuse is a matter of public concern and that in enacting this article it is the intent of the general assembly to protect the best interests of children of this state and to offer protective services in order to prevent any further harm to a child suffering from abuse. IT IS ALSO THE INTENT OF THE GENERAL ASSEMBLY THAT CHILD PROTECTION TEAMS PUBLICLY DISCUSS PUBLIC

...