NOTE: The governor signed this measure on 6/8/2016. HOUSE BILL 16-1377 BY REPRESENTATIVE(S) Primavera, Joshi, Coram, Landgraf, McCann, Moreno, Tyler, Becker K., Fields, Kraft-Tharp, Lontine, Melton, Pabon, Rosenthal, Ryden, Singer, Hullinghorst, Carver, Duran, Hamner, Lebsock, Mitsch Bush, Williams, Young; also SENATOR(S) Lambert, Aguilar, Heath, Hill, Jahn, Johnston, Kefalas, Kerr, Lundberg, Martinez Humenik, Newell, Scheffel, Todd. Concerning the creation of a task force on the collection and security of digital images of evidence of child abuse or neglect. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add part 8 to article 3 of title 19 as follows: PART 8 TASK FORCE ON THE COLLECTION AND SECURITY OF DIGITAL IMAGES OF EVIDENCE OF CHILD ABUSE OR NEGLECT 19-3-801. Legislative declaration. (1) The general assembly has a strong interest in the practices, standards, and safeguards surrounding county employees in the child welfare system who have an open involvement with a child related to suspected assault or child abuse or neglect that is documented through digital imagery. (2) The general assembly finds that there is a need to balance the policies and practices used in documenting suspected child abuse or neglect through digital imagery with the need to protect the privacy rights of children and parents. (3) Due to advances in technology and in digital imagery, it is important to evaluate whether the current statutes, rules, and practices relating to the collection and storage of digital images of children that document suspected child abuse or neglect are handled in ways that ensure the privacy, safety, and protection of children. (4) In addition, there is a need to ensure there is adequate guidance about the security and confidentiality of evidence that might be obtained in documentation of suspected child abuse or neglect, including the taking and storage of digital images of children and encouraging collaboration between county employees, law enforcement, medical personnel, and other agencies legally authorized in the investigation of abuse and neglect of children. While the general assembly acknowledges that some parents may have concerns about any photographs or digital images being taken of their children, the general assembly finds that documentation of abuse or neglect is important to protect children and that all photographs and digital images taken of children should be safeguarded and remain confidential as required by law. (5) The general assembly recognizes the importance of establishing clear standards to achieve consistent practices in documenting evidence of abuse or neglect, the need to periodically review whether laws, rules, and practices regarding the collection of digital images of children by government employees need to be updated to reflect changes in technologies and emerging technologies, and the importance of encouraging collaboration between government employees, medical personnel, and any other agencies legally authorized in the investigation of child abuse or neglect. (6) Therefore, the general assembly finds that it would be valuable to create a task force of persons with experience in or knowledge of the child welfare policy system to examine the current policies and statutes governing the collection and security of digital images of evidence of child abuse or neglect, study best practices on collecting and securing digital images of evidence of child abuse or neglect, study the best practices for documenting evidence of abuse or neglect or the absence of evidence of abuse or neglect in areas visible or not visible in plain sight on the child and private areas of a child, and make recommendations to the executive branch and general assembly on administrative and legislative changes to improve the collecting and securing of digital images of evidence of suspected child abuse or neglect. 19-3-802. Definitions. As used in this part 8, unless the context otherwise requires: (1) "Child's private areas" means the child's genitals, pubic area, buttocks, or female breast area. (2) "County department" means a county department of social or human services. (3) "County employee" means an employee of a county department. "County employee" also includes a person working as a contractor or subcontractor who is providing caseworker services for a county. (4) "Digital image" or "digital imagery" means any visual depiction created electronically or transformed into an electronic format, including any photograph, film, video, computer or computer-generated image or picture, or any similar visual depiction that is: (a) Capable of storage in or transmission to an electronic format, including on electronic devices and applications, on the internet, or in the cloud; or (b) Capable of transformation from an electronic format into another format, such as a printed page. (5) "Government" means the state; any county, city and county, municipality, or law enforcement agency; and any school district. (6) "Government employee" means a person employed by the government or acting under the color of state law. (7) "Open involvement" means a situation in which the county department currently has a referral, has a response to a report, has opened an assessment, is providing services, or has an open case in the Colorado TRAILS system that is related to the provision of child welfare services, as defined in section 26-5-101 (3), C.R.S. (8) "State department" means the state department of human services. (9) "Task force" means the task force on the collection and security of digital images of child abuse or neglect, created in section 19-3-803. (10) "Visible in plain sight on the child" means an area of the child's body that is viewable by the public and that could be observed visually without removal or rearrangement of the child's clothing. "Visible in plain sight on the child" does not include a child's private areas. 19-3-803. Task force on the collection and security of digital images of child abuse or neglect - creation - membership. (1) There is hereby created the task force on the collection and security of digital images of child abuse or neglect, for the purpose of studying the issues set forth in section 19-3-804 and making findings and recommendations to the governor, the state department, the child welfare training academy, the Colorado association of chiefs of police, the county sheriffs of Colorado, the Colorado medical society, and the general assembly on administrative and legislative changes to improve the collection and security of digital images of suspected child abuse or neglect. (2) The membership of the task force must not exceed twenty-one members and, to the extent practicable, must include persons from throughout the state and must reflect the ethnic diversity of the state. The task force consists of the following members: (a) The executive director of the state department or his or her designee; (b) The child protection ombudsman, appointed pursuant to section 19-3.3-102; (c) An attorney who is a representative of the office of the child's representative created in section 13-91-104, C.R.S., appointed by the director of the office of the child's representative; (d) An attorney who is a representative of the respondent parents' counsel created in section 13-92-103, C.R.S., appointed by the director of the office of the respondent parents' counsel; (e) A representative of the attorney general's office, appointed by the attorney general; (f) A representative of the Colorado district attorneys' council, appointed by the executive director of the Colorado district attorneys' council; (g) Five members appointed by the governor. In making his or her appointments, the governor shall consider appointing members from among the following individuals or representatives: (I) An individual who is a licensed pediatrician in this state with previous experience with child abuse or neglect cases; (II) A representative of the child welfare training academy created in section 26-5-109, C.R.S.; (III) An individual who is a director or administrator of a county department; (IV) An individual who is trained as a sexual assault nurse examiner (SANE), as defined in section 23-5-143 (2) (d), C.R.S.; (V) A licensed psychiatrist or psychologist who works with children who have been abused or neglected; and (VI) Any other individual or representative with relevant experience, as the governor sees fit. (h) Five members appointed by the speaker of the house of representatives. In making his or her appointments, the speaker shall consider appointing members from among the following individuals or representatives: (I) An individual who is a forensic interviewer with an accredited child advocacy center with experience in interviewing children who have been abused or neglected; (II) An individual representing a professional social work organization with experience counseling children who have experienced child abuse or neglect; (III) A foster parent who is currently caring for or has previously cared for children in foster care; (IV) A representative of schools, such as a principal, administrator, or school nurse; (V) An individual who is a caseworker for a county department who conducts assessments of child abuse or neglect cases; and (VI) Any other individual or representative with relevant experience, as the speaker sees fit. (i) Five members appointed by the president of the senate. In making his or her appointments, the president shall consider appointing members from among the following individuals and representatives: (I) A representative of law enforcement who investigates or has experience with investigating allegations of child abuse or neglect; (II) An individual who serves as a court-appointed special advocate (CASA) for abused or neglected children, as defined in section 13-91-103 (3), C.R.S.; (III) An attorney in private practice who has experience dealing with child abuse or neglect cases; (IV) A county attorney with experience in dependency or neglect cases; (V) An individual who represents a child advocacy organization active in this state; and (VI) Any other individual or representative with relevant experience, as the president sees fit. (3) The appointing authorities in subsection (2) of this section shall make their initial appointments to the task force no later than September 1, 2016. Each member of the task force who is appointed pursuant to subsection (2) of this section serves at the pleasure of the appointing authority who appointed the member. (4) The members of the task force serve without compensation and without reimbursement for expenses. (5) (a) The executive director of the state department or his or her designee shall convene the first meeting of the task force on or before October 1, 2016. (b) The task force shall elect a chair and vice-chair from among its members. (c) The task force shall meet four to six times per calendar year to complete its duties. (d) Upon request by the task force, the state department shall provide office space, equipment, and staff services as may be necessary to implement this part 8. 19-3-804. Task force - purposes - issues to study - written reports. (1) The purpose of the task force is to: (a) Study current laws, rules, and practices followed in the state and best practices in other states regarding the documentation of evidence or the absence of evidence of suspected child abuse through the collection and security of digital images by government employees; (b) Consider whether the statutes and practices concerning the collection of evidence of suspected abuse or neglect and the use of digital images are consistent with existing technologies and emerging electronic technologies; and (c) Recommend the best practices to be used in the collection and security of digital imagery evidence of child abuse or neglect. (2) In carrying out the purposes outlined in subsection (1) of this section, the task force shall consider: (a) The constitutional standards, case law, statutes, rules, practices, and standards in Colorado, if any, that govern: (I) How a county employee who has open involvement with a child takes, maintains, and disseminates digital images of a child, including the child's private areas, to document the abuse or neglect or the absence of abuse or neglect; and (II) How a government employee takes, maintains, and disseminates digital images of a child's body, including those areas of a child's body that are visible in plain sight and those that are private areas; (b) Whether the criteria or standards that government employees follow when documenting evidence of suspected child abuse or neglect through digital images balance the need to collect evidence of suspected child abuse or neglect with the need to protect the privacy and constitutional rights of both parents and of children; (c) The safeguards used by a government employee to ensure the best interests of children when documenting evidence of suspected child abuse or neglect through digital imagery; (d) The role of law enforcement agencies in conducting a child abuse or neglect assessment or investigation jointly with county departments pursuant to cooperative agreements implemented pursuant to section 19-3-308 (5.5) and whether there are best practices that have been developed through cooperative agreements relating to the collection, sharing, and handling of digital images; (e) How governments and medical professionals collaborate during assessments or investigations of suspected child abuse or neglect to collect, transmit, and share evidence, including digital images, without slowing down the process and while ensuring that there is no impediment to the child's safety; (f) Whether section 19-3-306, regarding the taking of color photographs of children, should be amended to include all types of digital images and what precautions should be taken regarding the transmission and storage of digital images of children; (g) The statutes, rules, and policies that govern the taking of digital images of children's bodies, including private areas, on personal or government-owned cell phones, cameras, devices, or other equipment that can be used to take digital images, and the safeguards in place to guide government employees on how to take, maintain, and disseminate digital images; (h) Whether digital images of children that may be used as evidence in cases of child abuse under section 18-6-401, C.R.S., should be transmitted and stored through the statewide discovery sharing system pursuant to section 16-9-702, C.R.S., and what safeguards should be developed on the transmission and maintenance of digital images through that system; (i) The statutes, rules, and policies that govern the audiotaping and videotaping of a child interview and the storage and maintaining of those child interviews; and (j) The best practices followed in other states or recommended by national child welfare experts for child welfare caseworkers to follow when collecting evidence of suspected child abuse or neglect through digital imagery to document evidence or absence of evidence of child abuse or neglect; collaborating with and sharing in the dissemination of evidence with law enforcement agencies, medical professionals, and any other agencies legally authorized in the investigation of child abuse or neglect; referring a child for medical examinations; and maintaining, storing, and safeguarding digital images of children. (3) The task force shall consider and recommend: (a) The best practices and procedures that government employees should use when documenting evidence of suspected abuse or neglect on a child's body, including areas that are not visible in plain sight on the child or that are private areas of a child or both; and (b) The best practices and procedures that government employees should use when observing or assessing a child's private areas or collecting digital images or other evidence of suspected abuse or neglect. (4) The task force shall study the following sequence of events and recommend best practices when a government employee seeking to view or document evidence of suspected child abuse or neglect of private areas of the child: (a) Is required to obtain the consent of a parent, guardian, or legal custodian of the child; or (b) Is required to obtain the consent of a child who is fifteen years of age or older and less than eighteen years of age, in addition to obtaining the consent of that child's parent, guardian, or legal custodian; or (c) Must obtain a court order directing that the child be presented to and examined and evaluated by an independent medical provider, a sexual assault nurse examiner (SANE), or the child's own physician, if the parent, guardian, or legal custodian, or the child, if between the ages of fifteen and eighteen, refuses to give consent; or (d) May proceed in examining and photographing the private areas of the child without the parent's consent or the child's consent, if the child is fifteen years of age or older and less than eighteen years of age, and without a court order based upon a reasonable belief that exigent circumstances exist that constitute a medical emergency, such as in conjunction with a call to 911, or based upon a reasonable suspicion that the child needs treatment or is in immediate threat of serious bodily injury. (5) Based on the study of the issues outlined in subsections (2) to (4) of this section, the task force should develop recommendations for administrative changes that governments should undertake and develop specific recommendations for legislation, if any. (6) On or before December 1, 2017, the task force shall submit an initial written report on its findings and progress to the governor; the state department; the child welfare training academy; the Colorado association of chiefs of police; the county sheriffs of Colorado; the Colorado medical society; the joint budget committee; and the public health care and human services committee of the house of representatives and the health and human services committee of the senate, or any successor committees. On or before December 1, 2018, the task force shall submit a final written report to the governor; the state department; the child welfare training academy; the Colorado association of chiefs of police; the county sheriffs of Colorado; the Colorado medical society; the joint budget committee; and the public health care and human services committee of the house of representatives and the health and human services committee of the senate, or any successor committees. The final report must include, but need not be limited to, the task force's findings and recommendations for changes in administrative rules and recommendations for legislation, if necessary. 19-3-805. Repeal of part. This part 8 is repealed, effective July 1, 2019. SECTION 2. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. ________________________________________________________ Dickey Lee Hullinghorst Bill L. Cadman SPEAKER OF THE HOUSE PRESIDENT OF OF REPRESENTATIVES THE SENATE ____________________________ ____________________________ Marilyn Eddins Effie Ameen CHIEF CLERK OF THE HOUSE SECRETARY OF OF REPRESENTATIVES THE SENATE APPROVED________________________________________ _________________________________________ John W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO