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Maine's high court hears case over lawmakers' access to child welfare records

The State House is seen at dawn during the final week of winter, Thursday, March 16, 2023, in Augusta, Maine.
Robert F. Bukaty
The State House is seen at dawn during the final week of winter, Thursday, March 16, 2023, in Augusta, Maine.

Attorneys for two branches of Maine state government faced off in court on Wednesday over access to confidential child welfare documents.

Maine's Supreme Judicial Court heard 30 minutes of oral arguments in Augusta in a case brought by lawmakers who are frustrated by their inability to obtain confidential records from the Department of Health and Human Services. 

The Legislature's Government Oversight Committee wants access to thousands of pages of case files as it investigates the abuse-related deaths in 2021 of four children whose families were part of Maine's child welfare system.

DHHS has already turned those confidential documents over to the Office of Program Evaluation and Government Accountability, or OPEGA, which is the investigative agency that reports to the committee. But the department has refused to share the documents with lawmakers themselves, arguing the law only allows such confidential records to be shared with OPEGA, which then summarizes and reports their findings to the committee.

A Superior Court judge sided with DHHS on the issue and lawmakers on the Government Oversight Committee appealed to Maine's highest court.

"The committee is pursuing a vital legislative investigation relating to the safety of Maine children," Joshua Dunlap, the attorney representing the Government Oversight Committee, told the Law Court. "It is entitled to confidential records that it needs in order to pursue meaningful legislative reform on this issue."

The justices had plenty of questions for attorneys on both sides. They pressed Dunlap, for instance, on whether there were any limitations to legislative subpoena power under the committee's interpretation of the law.

But at one point, the lawyer for DHHS, Assistant Attorney General Hunter Umphrey, was pressed by several justices about whether the department was impeding the committee's work.

"An investigating committee absolutely should investigate whatever the Legislature directed it to investigate," Umphrey said.

"Yeah, but you are tying its hands by saying, 'You can investigate us. But we don't have to turn over all of our information regarding cases that we are handling.'" retorted Justice Joseph Jabar. "How can a legislative committee perform its function without that information?"

Umphrey responded that all of confidential information in question "was turned over immediately to OPEGA and it's in the process of being analyzed by the nonpartisan analysts there."

But Justice Wayne Douglas cut in, asking "The committee has a responsibility, does it not, to monitor and evaluate OPEGA?"

Staff at OPEGA have already completed three of the four investigations into a spate of child deaths that occurred over the course of a month in the summer of 2021. Those reviews — coupled with testimony from frontline caseworkers at DHHS — have identified process shortcomings, overworked and overburdened staff as well as other problems within the department. The director of the DHHS Office of Child and Family Services, Todd Landry, resigned last month following the most recent critical review.

The court did not give a timeline for issuing an opinion in the case between the committee and DHHS, although Chief Justice Valerie Stanfill said she was cognizant that the Legislature is slated to return to Augusta next month.