PHOENIX — Proponents of Proposition 122 insist a potentially far-reaching amendment to the Arizona Constitution is necessary to ensure the public gets to monitor how well Arizona does in protecting children.
Postcards being paid for and mailed to voters by the Arizona Republican Party declare “an unconstitutional federal law” forces the state “to hide botched investigations of abused kids.” It features a photo of a young girl with a bruise on her arm crouching in the corner with her teddy bear.
The measure on the November ballot would allow the Legislature — or voters — to declare the new Department of Child Safety will not follow the federal Child Abuse Prevention and Treatment Act, which includes provisions about what can and cannot be publicly released.
But it may not be necessary to amend the state constitution to do that.
“We could get out of CAPTA now if we reject the federal funds,” said Dana Naimark, president of the Children’s Action Alliance. Naimark, whose organization has taken no position on Prop. 122, said she objects to proponents of the ballot measure using child-abuse issues to gain support, calling it a “distraction.”
Rep. Kate Brophy McGee, R-Phoenix, who has been at the forefront of demanding more transparency at DCS, supports Proposition 122.
She acknowledged the problem may not be with the federal child-abuse provision. In fact, she said that law specifically mandates disclosure of information in cases of deaths or near-fatal cases of abuse.
The big problem, she said, is how the state attorneys assigned to the child-welfare agency have chosen to read the federal law, using it as a shield to reject requests for public records.
“They interpret CAPTA so broadly as to make it shut down the access to and flow of information, as opposed to do what CAPTA was intended, which is to facilitate the sharing of information in the case of the death or the near-death of a child,” Brophy McGee said.
As far as whether Proposition 122 will force the state to open up records, “It’s another tool in the toolbox,” she said, to ensure the new state agency she helped create is open to disclosure.
In essence, Proposition 122 would permit lawmakers or voters to decide a federal law or program is not “consistent with the (federal) constitution.” If that happens, all state and local governments and school districts would be prohibited from using their workers or funds “to enforce, administer or cooperate with the designated federal action or program.”
Where child abuse comes in is with CAPTA.
On one hand, the law that provides federal dollars to states for child-abuse programs specifically allows disclosure of information in instances of abuse that result in a fatality or near fatality. But other information is considered off limits.
Officials at the now-defunct Child Protective Services for years have cited that law’s restrictions in rejecting requests for public records.
Brophy McGee said recent amendments to the law on confidentiality were designed to address some of that.
For example, the statute says records have to be maintained as required by federal law. But they also have declared “all exceptions for the public release of DCS information shall be construed as openly as possible under federal law.”
“Every time we ‘fix’ (the law), they go right back to where they were and they cite CAPTA,” Brophy McGee said.
And she said the new DCS is “not doing any better” than the old CPS at being transparent about its operations .
While critics say the disclosure issue could be fixed with more simple changes to state law, businessman Jack Biltis, who is financing much of the pro-122 campaign, said he doubts an amendment to state law would do much.
“CPS has really just been creating excuses not to disclose anything they didn’t want to,” he said, and blaming the federal law. He said Proposition 122 would solve that issue.
Biltis acknowledged ignoring the federal law risks losing federal dollars — about $670,000, according to Jennifer Bowser Richards, spokeswoman for DCS.
But Brophy McGee said she doubts there would be a legal fight from the feds if Arizona were to say it is going to make more information public, with or without Proposition 122.
“No state has ever lost funds because of CAPTA violations,” she said.
DCS Director Charles Flanagan would not be interviewed about the issue.