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DHHS denies lawmakers' request for confidential files in child death cases

The Maine State House towers over a fog bank rising from the Kennebec River on a chilly morning, Thursday, Oct. 7, 2021, in Augusta, Maine.
Robert F. Bukaty
AP file
The Maine State House towers over a fog bank rising from the Kennebec River on a chilly morning, Thursday, Oct. 7, 2021, in Augusta, Maine.

The Mills administration is refusing to provide a legislative committee with confidential case files about four children who died last year, allegedly at their hands of their parents or caretakers.

The denial is likely to spark discussion among lawmakers over whether to push for access, potentially sparking a court fight with the executive branch.

Earlier this month, members of the Legislature’s Government Oversight Committee formally requested that the Maine Department of Health and Human Services share the complete case files for four children who reportedly died of abuse or neglect. The spate of deaths, which all occurred over about a month last summer, sparked yet another round of investigations into potential failures within the programs that are supposed to keep children safe.

Committee members said they need the full case files as part of their investigation, even though a watchdog agency that reports to the committee already has access to the records. But DHHS Commissioner Jeanne Lambrew declined the request late last week, saying disclosure of the confidential records to lawmakers was not required under state law and could undermine ongoing criminal investigations.

“DHHS has — and will continue to — share information either directly with the committee or with the Office of Program Evaluation and Government Accountability (OPEGA) relevant to the Committee’s work regarding the Child Protective Services system as permitted under state and federal laws,” Lambrew wrote in her Friday letter. But she added that, based on advice from the Office of Attorney General Aaron Frey, DHHS “is unable to provide the requested materials to the committee.”

Rep. Amy Arata, a Republican from New Gloucester, is among the committee members who has been pushing for access to the files.

"I think we certainly need to have more of a sense of urgency in this investigation,” Arata said. “It's been dragging on. And this is really about children's lives, it's not about politics."

Arata says the Government Oversight Committee is unique because it has the power to subpoena documents, so she expects a robust discussion with legal counsel about potential next steps during the committee's meeting next month.

"But the other thing that makes us unique is that we are bipartisan, so I would like to see us reach a consensus,” Arata said.

OPEGA, which is the Legislature’s watchdog agency, has already obtained the confidential files for the four children who ranged from six weeks old to four years old when they died last summer. OPEGA will then summarize its findings for the committee in reports that do not contain confidential information. The final report from OPEGA is due in the fall and comes several years after the agency issued a lengthy report – and detailed recommendations — on improving Maine’s child protective services programs following the high-profile murders of two young girls in 2017 and 2018.

But some lawmakers have been frustrated with DHHS’ response to requests for information and have been pushing for months for access to the full files. During a meeting in May, assistant attorney general Chris Taub told committee members that while state law does suggest "legislative officials" could have access to confidential records, the committee would be treading new ground if it pushed for access to the documents. And the result, Taub said, could be a court fight over how to interpret the law.

"But the short answer to your question, senator, is this has never been litigated before,” Taub said. “There are no opinions from our office. There are no court decisions that I am aware of. So that specific provision has never been looked at before."

In a subsequent memo to DHHS officials, however, Assistant Attorney General Ariel Gannon advised the department that the law appears to allow release of confidential documents only to OPEGA and not to the Government Oversight Committee directly.

“OPEGA has the resources and authority to receive, digest, and synthesize, in a confidential setting, the information GOC has expressed interest in,” wrote Gannon, who heads the child protection division within the attorney general’s office. “Beyond receiving records, OPEGA is empowered to have targeted, in-depth conversations with stakeholders about what the materials mean in context. This comprehensive analysis would not be possible during a review (by lawmakers) of a cold record in executive session.”

Sen. Nate Libby, a Lewiston Democrat who co-chairs the committee, wasn’t surprised by Lambrew's response. He expects some committee members to want to push more aggressively for access to the case files while others will prefer to either rely on OPEGA to summarize the documents or to wait for the upcoming trials. Detailed summaries of the cases are typically made available after the trials have concluded.

"Issues of child welfare, and particularly where kids have died at the hands of their caretakers, it's extremely emotional subject material,” Libby said. “And I think lawmakers on the committee from the different parties share the same goals, which is finding answers, finding justice. How we get there, I think, is a subject of debate. And I think that’s what you’re seeing now.”