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After Maine’s highest court said a legislative watchdog does not have the authority to view confidential information, lawmakers have introduced legislation to affirm their power to exercise checks and balances on the other branches of state government.
Two members of the Legislature’s Government Oversight Committee, which is tasked with evaluating state programs and processes and exercising other forms of accountability, presented bills Wednesday to the Judiciary Committee seeking to clarify its power to view confidential information for the purpose of conducting its investigations.
“We have the power to reaffirm our power, which I believe is being eroded by two branches of government, and so I hope that this committee will deeply consider this and vote it out unanimously,” said oversight committee chair Sen. Craig Hickman (D-Kennebec). “If we can’t affirm our own power, no one else will.”
The proposals were born out of a recent lawsuit that made its way to the Maine Supreme Judicial Court and ultimately denied the oversight committee access to confidential information pertaining to its investigation into the state’s child welfare system.
In August 2022, the committee asked the Maine Department of Health and Human Services, which houses the Office of Child and Family Services, to view records relating to the 2021 deaths of four children. The department denied the committee access, citing confidentiality laws.
After that denial, the committee filed an action in the Kennebec County Superior Court urging the department to comply with its subpoena. The court denied the committee’s request, ruling that it did not have the authority to access the confidential records. The committee appealed the decision to the Maine Supreme Judicial Court, which also denied the committee access to the records.
Hickman sponsored LD 127, a bill that he said is about the power of the legislative branch that has been restricted by the law court ruling. The bill has bipartisan support from other current and former members of the oversight committee. It was filed as an emergency measure, meaning it would take effect immediately upon passage, rather than having to wait the typical 90 days after the Legislature adjourns.
A Republican member of the oversight committee, Sen. Jeff Timberlake of Androscoggin County, introduced a similar bill (LD 196) that he described as narrower than Hickman’s proposal. His bill would similarly give the committee access to records received through subpoena and that those would remain confidential.
Timberlake said reviewing confidential records is “reasonable,” especially for the committee to verify the work done in its investigations.
Both senators also sponsored each other’s bill.
In his testimony, Hickman explained that accessing confidential information is critical to several of the watchdog’s responsibilities. Not only is that access imperative for upholding the safety and wellbeing of children subject to state systems, but he said it is key to be able to evaluate the director of the state’s Office of Program Evaluation and Government Accountability and weigh in on their reappointment.
“How can we responsibly and judiciously perform that duty if we do not have access to all the same information and records that the director and director staff analyze and evaluate to produce their deliverables to us?” Hickman asked the committee.
Though the bills would give the oversight committee access, that confidential information would remain exempt from public disclosure.
During the hearing Wednesday, Hickman introduced an amendment for his bill that outlined certain guardrails for handling the confidential information, such as developing a code of ethics that would address any instances of oversight committee members mishandling the sensitive information.
Multiple former legislators, including David Trahan, who helped establish the Government Oversight Committee, testified in support of the proposal.
Trahan said debate over accessing confidential information actually delayed the creation of the committee, but it was always the intention to make sure the watchdog had access to the most accurate information.
Former Secretary of State and current State Auditor Matt Dunlap also testified in favor of Hickman’s bill.
“In order for the Legislature to properly exercise its oversight role, it must have all the tools available to it,” he said.
The Maine State Chamber of Commerce testified in opposition to the bills, citing concerns over the committee accessing tax information.
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