State agency, legislative committee clash in supreme court hearing over records

Dec. 6—AUGUSTA — Lawyers for the state agency that oversees child protective services and a legislative oversight committee clashed over access to confidential case records during a hearing in the state’s highest court Wednesday.

“This case is about maintaining the checks and balances inherent in our constitutional system of government,” said Josh Dunlap, an attorney for the Legislature’s Government Oversight Committee, in oral arguments before the Maine Supreme Judicial Court.

The committee sued the Mills administration after being refused access to records involving children who died following contact with the state office in charge of protecting them.

Dunlap said the high court ruled years ago that the Legislature has authority to subpoena confidential records absent explicit exemptions in state statute. Dunlap said there are no such exemptions in this case and state law mandates the release of the records to “an appropriate state executive or legislative official with responsibility for child protection services,” such as the committee.

Assistant Attorney General Hunter Umphrey, representing the Department of Health and Human Services, argued that the state has an established framework for reviewing the four child deaths at issue in the case, and that state law limits what information should be released to members of the committee. The records have instead been made available only to the investigative staff preparing reports to the committee.

“We agree this is a vitally important matter and the Legislature needs all the information on this matter that’s appropriate,” Umphrey said. “It’s getting that information. It’s part way through getting that information from the (Office of Program Evaluation and Government Accountability)… so it’s not necessary for the disclosure to go beyond OPEGA to the GOC.”

Justices on the court asked Umphrey if the committee should have the ability to make its own determinations about the department’s handling of those cases based on the records rather than being forced to rely on OPEGA’s review. Umphrey pointed to the current review framework that he said was put in place by the Legislature.

“We’re simply saying, on behalf of DHHS, an executive branch agency, that this is the framework established by the Legislature, where confidential information goes to OPEGA and the GOC and public at large receive reports on that confidential information simultaneously at public hearings,” Umphrey said.

He said the case is not about whether the committee has the power to issue subpoenas, but “whether they have the authority for that subpoena to claw in confidential records that the full Legislature said are confidential.”

The justices also asked Dunlap how the committee would respond if the department made the records available but wanted to redact or withhold personally identifiable information.

Dunlap said it hadn’t been raised as an issue but “the committee is willing to work with the department on appropriate redactions.”

Wednesday’s oral arguments before the high court came after the committee moved almost one year ago to appeal a superior court ruling that supported the department’s position that lawmakers should be barred from looking at the records.

The court agreed that those records can only be provided to the state’s watchdog agency, the Office of Program Evaluation and Government Accountability, which then reports its findings to lawmakers.

The high court is expected to issue a written decision on the case at a later date.

The hearing comes as the oversight committee continues to probe into the child deaths as well as reports that the protection system is falling short and complaints from caseworkers that the child protective office is understaffed. Shortly after the court hearing, Maine Department of Health and Human Services Commissioner Jeanne Lambrew told committee members she shares their frustration about the problems and is working to correct them.

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