The Maine Legislature’s Government Oversight Committee (GOC) will subpoena confidential case files related to the recent deaths of four children involved with the state’s child welfare system.
Whether the GOC can view the documents has been a source of contention between the Department of Health and Human Services (DHHS) and the committee.
During a July 20 meeting, the GOC voted unanimously to send a letter requesting the case files of four children who died between May and August 2021. The committee noted they would view the files in an executive session in order to avoid privacy issues.
DHHS Commissioner Jeanne Lambrew responded to that letter on August 19, denying the committee access on the advice of Assistant Attorney General Ariel Gannon, who cited disclosure limitations in state statute.
In a letter to Office of Child and Family Services (OCFS) Director Todd Landry, Gannon wrote that Maine’s laws related to the disclosure of confidential information do not allow that information to be transmitted to the GOC, but would allow it to be transmitted to the Office of Program Evaluation and Government Accountability (OPEGA), an independent legislative office that exists to provide oversight.
In her August 19 letter, Lambrew informed the GOC that, pursuant to Gannon’s advice, DHHS would not be able to provide GOC with the materials it requested but would share them with OPEGA.
“Should this be of interest to the Committee, we stand ready to coordinate with OPEGA staff,” Lambrew wrote.
Lambrew further noted that criminal investigations and prosecutions related to the deaths of the children whose files were being requested were ongoing.
“Any dissemination of information relating to the criminal cases, intentional or not, could undermine the purpose of those proceedings–to obtain justice for the child victims,” Lambrew concluded.
This issue was raised at the GOC’s July 20 meeting, where an OPEGA analyst noted that state law requires DHHS to release child death information at the close of criminal judicial cases and that waiting for court cases to end could avoid a potential legal battle between DHHS and GOC.
During their September 21 meeting, the GOC discussed two avenues open to the committee to pursue more information related to OCFS’ handling of child fatalities. The first involved directing DHHS to transmit the child death files to OPEGA so that the oversight body could study them and produce a report. The second involved proceeding with a subpoena in an attempt to force DHHS to turn over the records.
The GOC entered an executive session to discuss next steps with legal counsel. When the committee convened following the executive session, the committee voted unanimously to direct OPEGA to conduct a “rapid review” of the four child deaths and report back as soon as practicable.
Sen. Nate Libby (D-Androscoggin), the committee chair, explained that the rapid review would include a list of entities referenced in records that appear to have knowledge in the relevant cases, a chronology of key events and communications, and a list of potential areas of concern or breakdowns in OCFS’ system.
Libby added that a second part of the project would include a random audit of case files from the past 18 months to ensure the adequacy of OCFS’ systems and the safety of children in their custody.
Sen. Lisa Keim (R-Oxford) then motioned to subpoena the records of the four children whose records had previously been requested to review in executive session during GOC’s next scheduled meeting.
“We are way outside of the realm of doing business as usual with the record that we have at OCFS,” Keim said as part of comments explaining her motion.
Keim also said she was concerned that deferring to Gannon’s interpretation of Maine’s disclosure laws would set a precedent that could limit future GOC investigations.
Libby spoke in opposition to the motion “as a practical matter,” stating he thought the GOC would not prevail in a legal battle and that OPEGA staff were better suited to conduct the review of documents.
“I don’t believe today that the statute provides for these confidential records to be turned over to the twelve of us,” Libby said, referencing the statute’s reference to a singular “legislative official.” He also added that the legislature has the authority to change that statute.
Sen. Jeff Timberlake (R-Androscoggin) disagreed with Libby’s interpretation of the statute.
“I think we’d be totally wrong to vote no on not subpoenaing the records,” Timberlake said.
“I’m a little surprised today that DHHS isn’t here. They haven’t been a participant in this all along. I am totally frustrated,” Timberlake continued.
Sen. Deschambault also added that she agreed with Libby, but believed the public expected the GOC would go to court to push the issue.
Keim’s motion passed by a vote of 10 to one.