Ariana Payne

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The refusal of state Child Protective Services to release details about its connection to Tucson children who died this spring under its watch has raised concerns among some state lawmakers and advocates for open government.

They're concerned that the agency's need for confidentiality has outweighed the public's right to know.

CPS maintains that releasing information to the public violates confidentiality laws, though state law allows case summaries for children who die from abuse or neglect to be made public.

At issue is the agency's role in the deaths of Tucson children Ariana Payne and Brandon Williams and the suspected death of Ariana's brother, Tyler Payne.

"I think the public has a right to know how tax dollars are being spent and how state agencies operate," said Rep. Jonathan Paton, a Republican from Tucson who is part of legislative hearings to examine CPS' role in the two Tucson cases.

Paton is one of a handful of people to review CPS' files for the Payne and Williams cases, but he can't comment on what he's learned because of confidentiality. State law mandates that lawmakers sign confidentiality agreements if they are to review CPS cases.

"It's a misdemeanor of some sort," Paton said, explaining what would happen if he talked about the cases or hearings. "I'm not sure what the level is, but it's serious enough that I don't want to risk it."

Citing a lawsuit filed by the Arizona Daily Star seeking the Payne case summary, CPS spokeswoman Liz Barker Alvarez declined to comment about the agency's use of confidentiality laws. She referred any specific questions about the Payne case to the Attorney General's Office.

CPS was thrust into the spotlight after police discovered 4-year-old Ariana's body Feb. 18 in a plastic tub that had been placed in a trash bin. Her body had been kept in a locker at a storage facility. The body of her 5-year-old brother, Tyler, has not been found despite two searches at Los Reales Landfill, 5300 E. Los Reales Road, where police believe he may be buried.

The children's father, Christopher Matthew Payne, has been charged with two counts of murder.

Court documents and police reports show CPS had been working to help Payne gain custody of the two children.

In the other case, on March 21, Brandon Williams, 5, died after his mother and another woman gave him multiple doses of medications.

CPS has said investigators "made repeated attempts" to find Brandon and his mother, Diane L. Marsh. Marsh has been charged with first-degree murder.

Under state and federal law, state CPS case reports are confidential and that is, in part, to protect against false or unsubstantiated reports, said Dan Barr, a Phoenix attorney who is representing the Star in its suit for the Payne case summary.

However, Barr said much of the state's public-records law surrounding CPS balances on whether the release of information will promote or hinder the safety and well-being of children, and that it expressly outlines times when information should be released.

"You withhold the information if it's to promote the safety and well-being of children, but if that goal is promoted by releasing it, you release the information," he said.

With a suspect arrested in the Payne case, and Ariana dead and Tyler believed to be dead, Barr said he thought the release of the case summary could only help to prevent future deaths.

"If something can be learned so that a better decision can be made in another case, then that's certainly beneficial to promoting the safety and well-being of children," he said. "You can't have a meaningful discussion without the facts."

In the Payne case, it's unclear what CPS did or didn't do — even for the family members involved.

Police reports show that in March of last year the children's mother, Jamie Hallam, called police to ask for their help in recovering her kids from Payne, who had kept them for more than six weeks.

Hallam had a court order for sole custody, but when police arrived at Payne's West Side apartment, Payne said he was working with CPS to get custody.

The officers called CPS and spoke with a supervisor who said it would be best to keep the kids with Payne because the agency was investigating Hallam. Records show that the investigation into Hallam ended a month later.

Hallam's grandmother, Linda Cosentino, who lives in New Jersey, said the family was never notified that the investigation was closed until she called CPS out of concern for the welfare of the kids.

"We don't understand why she could not get her kids when she had the court order," Cosentino said.

State law also allows for the agency to release case information to confirm or correct information from outside sources, but Barker Alvarez declined to comment about Cosentino's assertion.

"I can't speak to a particular case," she said, citing the Star's lawsuit. "When we are finished with our investigation, we are required to notify the person who is the subject of the allegation, and that is who we notify."

Despite the lack of public information, Barker Alvarez said there are a number of internal controls to assure the proper handling of cases. Those controls range from attorney representations for parents at dependency hearings, which are not open to the public, to an independent foster-care review board, to a family-advocacy office where grievances can be filed and private legislative hearings conducted, such as the ones in which Paton is taking part.

She declined to answer a question about how not releasing case information might shape the agency's image.

However, Paton and Barr both said they thought the agency was taking a hit.

"I think that the current confidentiality laws that exist, one, prevent this agency from receiving enough scrutiny," Paton said. "Two, I think they hurt the agency in the long run because I think that people develop a lot of conspiracy theories in absence of what's going on."