Can Maine's Department of Health and Human Services hand confidential child welfare records straight to the Government Oversight Committee, or does the law route those records through a different office?

Subject

Whether Maine DHHS may release confidential child welfare records and information directly to the Government Oversight Committee (GOC) of the Legislature, or whether disclosure must be routed through the Office of Program Evaluation and Government Accountability (OPEGA). AG Aaron M. Frey concluded the records go to OPEGA, not directly to GOC.

Plain-English summary

Maine's child welfare files are tightly protected. Federal law (CAPTA) and state statute (Title 22, section 4008) limit who can see them. The Government Oversight Committee, a legislative committee that supervises program evaluation work, asked DHHS to hand over confidential child protective records as part of its oversight function. DHHS asked the AG whether it could do that directly.

The AG said no, but offered a workable path. The legal framework does not give the GOC itself the authority to receive confidential child welfare records. It does give that authority to OPEGA, the office that does the actual investigative and audit work the GOC directs. OPEGA is governed by 3 M.R.S. §§ 991-997, and section 997(4) explicitly says state agencies "must provide the office access to information that is privileged or confidential" when OPEGA requests it for program evaluation. The statute then sharply limits what OPEGA can do with those records: process the information, distill it into work product, and present results back to the GOC, but not pass the underlying confidential records up. The Legislature wrote that asymmetry on purpose.

Federal law (CAPTA, 42 U.S.C. § 5106a(b)(2)(B)(viii)(VI)) lets states designate "entities or classes of individuals authorized by the State" to receive confidential child protective information. Maine designated certain narrow categories under 22 M.R.S. § 4008(3). The closest fit for legislator access is § 4008(3)(D), but the AG read that, with 42 U.S.C. § 671(a)(8)(D), as authorizing disclosure for an audit or similar activity through OPEGA, not direct disclosure to legislators sitting on the GOC.

The AG's recommendation: DHHS and OPEGA should negotiate the scope of records OPEGA needs and the confidentiality terms. The terms should ensure the disclosures don't undermine ongoing criminal investigations and don't run afoul of HIPAA, FERPA, or 42 CFR Part 2 (substance use disorder records). DHHS should then comply with OPEGA's request under those terms.

The opinion was signed by an Assistant Attorney General in the Child Protection Division.

What this means for you

If you work at DHHS

Don't release confidential child welfare records to GOC members directly, even at GOC's request. The legal channel is OPEGA. Sit down with OPEGA staff, agree on what records they actually need to do the program evaluation, and write down the confidentiality terms. The opinion identifies four guardrails to put in those terms: avoid undermining ongoing criminal investigations, comply with HIPAA, comply with FERPA, and comply with 42 CFR Part 2 if any substance use disorder records are involved.

If you sit on the Government Oversight Committee

Your access to confidential child welfare records runs through OPEGA, not directly to you. OPEGA can take the underlying records, distill them into reports and findings, and present those findings to GOC. You will see OPEGA's work product, not the raw files. The opinion is explicit on this asymmetry: "If GOC were intended to receive the information undergirding OPEGA's reports, that provision would say so."

If you work at OPEGA

You have the statutory authority to request and receive confidential child welfare records under 3 M.R.S. § 997(4). The AG's view is that you should negotiate disclosure terms with DHHS that handle confidentiality, ongoing investigations, and overlapping federal frameworks (HIPAA, FERPA, 42 CFR Part 2). The records stay with you; what goes to GOC is your synthesis.

If you are an attorney advising on legislative oversight in child welfare

This opinion confirms a structural feature of Maine's oversight law that is easy to miss. Legislative oversight of child welfare runs through a designated investigative office, not through the committees themselves. Replicate this pattern when designing oversight access elsewhere, and don't assume "the legislature directed it" overrides the confidentiality framework.

If you cover Maine child welfare policy

Reports from OPEGA to GOC are the public-facing output of this process. The underlying records do not flow to legislators. If you see a GOC member quoting from raw case files, that should prompt a question about how those files were obtained.

Background and statutory framework

Maine's child welfare records are confidential under both federal and state law. The federal Child Abuse Prevention and Treatment Act (CAPTA), at 42 U.S.C. § 5106a(b)(2)(B)(viii)(VI), allows states to designate entities or classes of individuals authorized to receive confidential child protective information. Maine implemented that authority in 22 M.R.S. § 4008, which lists circumstances where DHHS may make discretionary or mandatory disclosures.

The closest statutory hook for legislator access is 22 M.R.S. § 4008(3)(D). The AG's view is that this provision, read together with the federal CAPTA companion at 42 U.S.C. § 671(a)(8)(D), allows disclosure of confidential records "for an audit or similar activity," but only on appropriate terms.

The Office of Program Evaluation and Government Accountability is governed by Title 3, chapter 27 (3 M.R.S. § 991 et seq.). Section 997 details what OPEGA may request, what agencies must provide, and what OPEGA does with the information after it gets it. The key provision is § 997(4): when OPEGA requests confidential or privileged information for a program evaluation, agencies must provide access. The companion provisions in § 997 then describe how OPEGA processes the information into work product. The statute does not authorize OPEGA to forward the underlying confidential records to GOC.

The opinion notes that the federal framework consistently emphasizes confidentiality as a child-protection rights issue: families interacting with the child welfare system have privacy rights, and disclosure is justified mainly when it serves child protection (e.g., interagency cooperation aimed at preventing further abuse). When the requesting body does not itself have child protective responsibilities, privacy gets the heavier weight.

The opinion also notes that GOC and OPEGA are "discrete" entities under the statute. GOC directs OPEGA's work, but they are not the same body for confidentiality purposes.

Common questions

Why doesn't the GOC get to see the actual records?

Because the statute that lets confidential child welfare records into the legislative branch was written for OPEGA specifically, with limits on what OPEGA can do with the records. The AG read 3 M.R.S. § 997 as a "clear expression of legislative intent" that OPEGA staff get access following the statute's procedures, and the information then "is to go no further." If the Legislature had wanted the underlying records to reach GOC members, the statute would have said so.

Can OPEGA share the records with GOC after it processes them?

The opinion says no. OPEGA receives the records, develops work product, and presents the work product to GOC. The underlying confidential records do not go up. OPEGA was set up with this asymmetry on purpose.

Could the Legislature change this by amending the statute?

In principle yes, but it would have to amend Title 22 section 4008 (or related provisions) and ensure the change is consistent with federal CAPTA and 42 U.S.C. § 671. The federal framework allows states to designate authorized recipients, but the federal statutes still expect those recipients to be appropriate from a child-protection standpoint. A simple "GOC members can see anything" amendment would face federal pre-emption challenges if it didn't preserve confidentiality protections.

What other federal laws come into play?

The opinion's footnote 4 calls out three the disclosure terms must respect: HIPAA (medical records), FERPA (education records), and 42 CFR Part 2 (federal substance use disorder records). Many child welfare files contain records covered by one or more of these, and OPEGA's handling has to accommodate them. The disclosure terms between DHHS and OPEGA should spell out how each is handled.

What happens if there's an ongoing criminal investigation involving a case OPEGA wants to evaluate?

The opinion says the disclosure terms should be written so they "would not undermine or inhibit any ongoing criminal investigation or prosecution." That likely means delayed access to those specific files, redactions, or carve-outs, depending on the situation.

Does this opinion mean GOC members can never get information about child welfare cases?

No. It means they can't get the underlying confidential records directly. They can get OPEGA's reports, findings, and recommendations based on those records. They can also get information that is not confidential under the statute. The line is about the confidential underlying files, not about general program oversight.

Is this opinion binding on DHHS?

It is the AG's legal advice to DHHS. AG opinions are persuasive authority for state agencies, and DHHS would normally follow the AG's reading on a question like this. It is not binding court precedent, and a court could read 3 M.R.S. § 997 differently. But agencies typically follow their AG's interpretive guidance.

Citations

The opinion's central authorities, drawn directly from its text:

• Federal: 42 U.S.C. § 5106a(b)(2)(B)(viii)(VI) (CAPTA confidentiality and authorized-recipient framework); 42 U.S.C. § 671(a)(8)(D) (audit/similar-activity disclosure provision); HIPAA, FERPA, and 42 CFR Part 2 (named in footnote 4 as disclosure-term constraints).
• Maine OPEGA framework: 3 M.R.S. § 991 et seq.; 3 M.R.S. § 992(3) (defining OPEGA as "the office"); 3 M.R.S. § 997 and § 997(4) (mandatory access to confidential information for program evaluation; restrictions on dissemination).
• Maine child welfare confidentiality: 22 M.R.S. § 4008 (DHHS disclosure provisions); 22 M.R.S. § 4008(3)(D) (closest statutory hook for legislator access).

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2022/ag_20220615.pdf

Original opinion text

MAINE STATE LEGISLATURE

    The following document is provided by the
   LAW AND LEGISLATIVE DIGITAL LIBRARY

at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib

Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
REGIONAL OFFICES
84 HARLOW ST. 2ND FLOOR
BANGOR, MAINE 04401
TEL: (207) 941-3070
FAX: (207) 941-3075
AARON M. FREY
ATTORNEY GENERAL 125 PRESUMPSCOT ST., SUITE 26
PORTLAND, MAINE 04103
TEL: (207) 822-0260
FAX: (207) 822-0259
STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL 14 ACCESS HIGHWAY, STE. 1
TEL: (207) 626-8800 CARIBOU, MAINE 04736
6 STATE HOUSE STATION TEL: (207) 496-3792
TTY USERS CALL MAINE RELAY 711
AUGUSTA, MAINE 04333-0006 FAX: (207) 496-3291

                                                     June 15, 2022

 Director Todd Landry
 Office of Child and Family Services
 Department of Health and Human Services

 Dear Director Landry:

 You have requested my advice on whether confidential records and information relating to the
 Department of Health and Human Services' (DHHS) child welfare services may be directly
 released to the Government Oversight Committee (GOC). My view is that the law allows release
 to GOC's investigative arm, the Office of Program Evaluation and Government Accountability
 (OPEGA), but not to GOC directly. While GOC directs OPEGA, the two entities are discrete.

 Federal law permits states to pass laws enabling "entities or classes of individuals authorized by
 the State" to receive confidential child protective information. Maine enacted Title 22, Section
 4008, which lists circumstances where discretionary and mandatory disclosures may be made by
 DHHS. As Chief Deputy Attorney General Chris Taub said before the GOC on May 18, 2022, the
 closest that statutory authority comes to empowering legislators to receive confidential child
 protective information is 22 M.R.S. § 4008(3)(D). It is my view that Title 22, Section 4008(3)(D),
 in concert with 42 U.S.C. § 671(a)(8)(D), should be read to allow the disclosure of confidential
 records and information by DHHS, under appropriate limitations and measures, for an audit or
 similar activity. Those provisions should then be construed with OPEGA's enabling statutes under
 Title 3.

 The statutory framework for OPEGA allows DHHS to disclose confidential information for
 purposes of program evaluation. Title 3, Section 997(4), states: "Upon request of the office and
 consistent with conditions and procedures set forth in this section, state agencies and other entities
 subject to program evaluation must provide the office access to information that is privileged or
 confidential as defined by Title 1, chapter 13, which governs public records or proceedings." To
 the extent that information is confidential pursuant to state statute, Title 3, Section 997(4) is a clear
 expression of legislative intent that OPEGA staff are to be given access to that information,

 (Footnote 1: 3 M.R.S. § 991 et seq.)
 (Footnote 2: The Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. § 5106a(b)(2)(B)(viii)(VI).)
 (Footnote 3: This is defined as the OPEGA office at 22 M.R.S. § 992(3).)

following the procedures that statute outlines. It is similarly clear that the information is to go no
further. Title 3, Section 997 specifically addresses what is to be done with the confidential material
received and distilled to work product by OPEGA. If GOC were intended to receive the
information undergirding OPEGA's reports, that provision would say so.

OPEGA has the resources and authority to receive, digest, and synthesize, in a confidential setting,
the information GOC has expressed interest in. 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 review of a cold record in
executive session.

I would be remiss not to mention the lens through which the above-referenced provisions should
be analyzed. The federal law that Title 22, Section 4008 stems from has conformed since inception
to the principle that families interacting with the child welfare system have rights. CAPTA
expressly states that a state child welfare agency must employ "methods to preserve the
confidentiality of all records in order to protect the rights of the child and of the child's parents or
guardians..." The primary rights at play here are the right to privacy and the right to be free from
abuse and neglect. Where disclosure can serve to prevent abuse or neglect, through interagency
cooperation for instance, privacy rights are outweighed. Conversely, if the requesting entity is not
explicitly defined as having responsibility for child protective services it would follow that privacy
must be safeguarded. By using OPEGA as designed, to assist all of us interested in improving the
welfare of Maine's children in recognizing themes and targeting areas for improvement, the
appropriate balance is achieved.

It is my advice that DHHS works with OPEGA to define the information OPEGA needs to fulfill
its directive from GOC; that DHHS and OPEGA negotiate and agree upon terms of disclosure and
preservation of confidentiality; and that DHHS comply with OPEGA's request for confidential
child protective information and records under these terms.

                                          Sincerely,



                                          Assistant Attorney General
                                          Child Protection Division
                                          Maine Office of the Attorney General

(Footnote 4: Such terms should ensure that disclosure would not undermine or inhibit any ongoing criminal investigation or prosecution and would not violate federal law including but not limited to HIPAA, FERPA or 42 CFR Part 2.)