Maine Supreme Court Blocks Legislative Committee from Obtaining Confidential DHHS Records Concerning Children’s Deaths

A Maine legislative committee has been blocked by the state’s highest court from requiring a state agency to turn over confidential records concerning the deaths of four children in 2021.

The Maine Supreme Judicial Court ruled Thursday that the Maine Department of Health and Human Services (DHHS) cannot be compelled to give certain child protective files to the Legislature’s Government Oversight Committee (GOC).

DHHS declined to turn over these records citing confidentiality, prompting the GOC to ask the Superior Court to enforce compliance with a subpoena. After this request was denied, the GOC appealed to the state’s Supreme Judicial Court.

The Justices’ ruling Thursday affirms the lower court’s decision to reject the GOC’s request to compel DHHS to turn over the documents.

In explaining their reasoning for upholding the lower court’s ruling, the Justices outline the difference between the authorizing statues for the GOC and the Office of Program Evaluation and Government Accountability (OPEGA).

While OPEGA was granted the statutory authority to access confidential records as part of its responsibility to conduct “evaluation[s] of agencies and programs of State Government,” the Court argues that the GOC does not, as it is tasked with “direct[ing] and oversee[ing] OPEGA’s work.”

Under OPEGA’s statute, the information legally available to the GOC is limited to that which is available under Maine’s Freedom of Access Act (FOAA) or that which is “relevant to, and within the scope of, the Committee’s duties, authority, and purpose.”

“The OPEGA statute’s plain language, structure, and purpose creates a clear division of roles between OPEGA and the Committee,” the Court’s ruling states. “Their respective access to agency records and information follows from that division of roles.”

The Court further backs up this understanding of these authorizing statutes by delving into their legislative history, citing changes that were made specifically in response to confidentiality concerns in the early 2000s.

The Justices went on to conclude that the “Legislature controls the authority and functioning of its own committees” and, based on their interpretation, they have “determined the role of the Committee in the scheme of governmental oversight and review as well as the information available to it in that process.”

“It is free to clarify or change the Committee’s role, the scope of its authority, and the nature of the information believed necessary for the Committee to carry out its work,” the Justices concluded.

Justice Rick E. Lawrence issued a concurring opinion in which he agreed with the majority’s decision to reject the GOC’s request to enforce the subpoena for confidential information but suggested that they went too far in saying that the Committee could not access such documents under any circumstances.

Instead, he indicates that the GOC may take action to review confidential records if necessary “to review and determine whether it endorses the OPEGA reports and to determine what, if any, legislation to propose to implement OPEGA’s findings and recommendations.”

Click Here to Read the Full Ruling

In recent years, Maine’s DHHS has come under fire as various reports and studies have shown that the agency is failing the state’s most vulnerable children.

Walk a Mile in Their Shoes (WAMITS) — a non-profit founded by former Democratic state senator Bill Diamond — released an extensive report in December of 2023 detailing these failings and and making recommendations regarding what can be done about it.

This report was the culmination of a series of listening sessions held throughout the state with those who know first hand what’s happening on the ground in these situations — including “current and former caseworkers, foster parents, childcare providers, educators, law enforcement officials, and others who interact with DHHS on a regular basis.”

[RELATED: Ex-Dem Sen Diamond’s Report Details Mountain of Failures in Maine’s Child Welfare System]

Such concerns were echoed in the Child Welfare Ombudsman’s 2023 Annual Report, where it was revealed that there was a continued “decline in child welfare practice” in the 2023 fiscal year.

“As has been true in previous annual reports, this year shows continued struggles with decision-making around child safety,” the report stated. “Primarily, the Department has had difficulty in two areas: 1) during initial investigations into child safety and decision-making around where a child is safe during an investigation, and 2) during reunification when making safety decisions about whether to send a child home.”

[RELATED: Child Welfare Ombudsman Reports Continued “Decline in Child Welfare Practice” for 2023]

Most recently, Maine Republicans joined calls for reform at the DHHS after 145 unionized workers issued a letter of no confidence in the leadership of Bobbi Johnson, director of the Office of Child and Family Services (OCFS).

The letter criticized systemic issues under Johnson’s tenure, which they argue compromise the safety and well-being of vulnerable children in Maine.

[RELATED: Maine Republicans Join Call for DHHS Reform Amid Child Welfare Crisis]

Signed by caseworkers, community care workers, and case aides, the letter alleges a pattern of ignored concerns and poor policy implementation, including the controversial use of hotel accommodations for children in state custody. Staff claim this practice exacerbates trauma for children and imposes undue burdens on employees, who are required to supervise these placements in addition to their regular duties.

The letter came in the wake of a federal audit by the U.S. Department of Health and Human Services’ Inspector General, which found that Maine’s child welfare system failed to meet key federal requirements in 94 percent of reviewed cases. The state has also seen a series of child fatalities in recent years, prompting heightened scrutiny.