AGO 05-6.

Case DateSeptember 23, 2005
CourtMaine
Maine Attorney General Opinions 2005. AGO 05-6. STATE OF MAINE OFFICE OF THE AITORNEY GENERAL 6 STATE HOUSE STATIONAUGUSTA, MAINE 04333-0006 September 23, 200505-6Beth L. Ashcroft, DirectorOffice of Program Evaluation and Government Accountability 82 State House Station Augusta, ME 04333-0082 Re:
Request for Opinion Regarding Access to Privileged and Confidential DHHS Child Protective Services Files by OPEGA
Dear Ms. Ashcroft: By letter dated June 15, 2005, you requested an opinion "on whether or not OPEGA is authorized to access privileged and confidential files and records maintained by DHHS related to child protective services." Access to these records is requested by the Office of Program Evaluation and Governmental Accountability ("OPEGA") for purposes of conducting "reviews of activities related to child protective services provided by the State." Because the response to your question is governed in significant part by the interpretation of federal statutes and regulations concerning confidentiality requirements that states must meet in order to qualify for federal funding of child protection and foster care activities, we forwarded your question to the Administration of Children and Families ("ACF") in the federal Department of Health and Human Services in June. This opinion has been ready to release, but for the response of ACF, for more than two months. The response to regular status inquiries of ACF by our Office has led us to believe that an answer would soon be forthcoming; however, the response to our most recent inquiry was that several more weeks would be required. In light of the fact that you are at a point in your review where access to documents held by Maine's Department of Health and Human Services ("DHHS") is needed, I have decided to issue this opinion without the input of ACF. To the extent that the ACF response supplements or conflicts in any way with this opinion, those issues can be addressed once that response is received. For the reasons discussed in detail below, we believe that federal and state law confidentiality requirements specific to child protection records contain an exception that permits the Director and staff of OPEGA to access these records provided that they are maintained in confidence in a manner consistent with the OPEGA statute. To the extent that there are records in the particular files that you ultimately select for review that are subject to other federal law confidentiality requirements, additional federal laws may needto be reviewed to determine whether they contain a comparable exception.(fn1) The OPEGA Statute OPEGA is established and governed by Title 3, M.R.S.A., §§ 991-997 (Supp. 2004) ("the OPEGA statute"). OPEGA operates under the oversight of the Governmental Oversight Committee ("the Committee"), a joint legislative committee established by Joint Rule 371 of the Maine Legislature. Under § 991, OPEGA is authorized to conduct program evaluations of agencies and programs of state government, and, when directed by the Committee, to evaluate various local governmental units.(fn2) OPEGA is also charged with ensuring that public funds provided to local governmental units are expended in accordance with the purposes for which they were appropriated, allocated, or contracted, and, when authorized by the Committee, to examine any state contractor financed in whole or in part by public funds as well as any expenditure of public funds by any public official or employee. The OPEGA statute contains a number of provisions that address access to records, with different standards applicable to the Committee, as distinguished from those applicable to the OPEGA staff. Title 3, M.R.S.A., § 994(11) provides that information available to the Committee is governed by Title 3, M.R.S.A., Chapter 21, which addresses legislative investigative committees, and by the Freedom of Access Law ("FOAL"), Title 1, M.R.S.A., Chapter 13 (1989 & Supp. 2004). As a result, records that are confidential under the FOAL are not available to the Committee. In contrast, state agencies and other entities subject to program evaluation are required to give the OPEGA staff access to information that is privileged or confidential...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT