Government Oversight Committee v. Department of Health and Human Services

2024 ME 81

• Court: Supreme Judicial Court of Maine
• Decided: December 26, 2024
• Docket: Ken-23-61
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2024 ME 81 Docket: Ken-23-61 Argued: December 6, 2023 Decided: December 26, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, LAWRENCE, and DOUGLAS, JJ.  Majority: STANFILL, C.J., and MEAD, HORTON, and DOUGLAS, JJ. Concurrence: LAWRENCE, J.

GOVERNMENT OVERSIGHT COMMITTEE

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

DOUGLAS, J.

[¶1] This case involves a dispute between the Government Oversight

Committee of the 131st Maine Legislature and the Maine Department of Health

and Human Services over access to con idential Department records relating to

the deaths of four children in 2021. When the Department declined to produce

the records in response to a Committee subpoena on the grounds that child

protective iles are con idential, the Committee iled an action in the Superior

Court (Kennebec County) seeking to compel obedience with its subpoena. The

court (Stokes, J.) issued a judgment denying the Committee’s request to compel,

and the Committee appealed. We af irm the court’s judgment.

 Although Justice Jabar participated in this appeal, he retired before this opinion was certi ied. 2

I. BACKGROUND

[¶2] The Department of Health and Human Services is a cabinet-level

agency of Maine’s executive branch. 22-A M.R.S. §§ 201, 204 (2024). Under the

Child and Family Services and Child Protection Act, 22 M.R.S. §§ 4001 to 4099-P

(2024), the Department is charged with the duty to

act to protect abused and neglected children and children in circumstances that present a substantial risk of abuse and neglect, to prevent further abuse and neglect, to enhance the welfare of these children and their families and to preserve family life wherever possible.

Id. § 4004(2). By statute, Department records related to child protective cases

are “con idential and subject to release only under the conditions [speci ied in

the statute].” Id. § 4008(1).

[¶3] The Government Oversight Committee is a joint legislative

committee established to “oversee program evaluation and government

accountability matters.” 3 M.R.S. § 992(1) (2024). The Committee’s duties are

set out in 3 M.R.S. § 994 (2024) (and discussed below). One of its enumerated

duties is to oversee a nonpartisan, independent legislative of ice, the Of ice of

Program Evaluation and Government Accountability (OPEGA). Id. § 994(1)-(4).

OPEGA was created “for the purpose of providing program evaluation of

agencies and programs of State Government.” 3 M.R.S. § 991 (2024). 3

[¶4] In July 2021, after the high-pro ile deaths of several young children,

the Committee directed OPEGA to conduct an immediate review of the child

protective services provided by the Department. The scope of the review was

divided into three components with staggered reporting dates. OPEGA issued

its irst report in January 2022, focusing on state and federal oversight of child

protective services. OPEGA issued its second report in March 2022, reviewing

child protective services investigations and examining “how child safety is

protected and the risks to child safety from the point at which alleged child

abuse or neglect is reported to [the Department] through the completion of the

investigation.”

[¶5] Before OPEGA issued its third report on reuni ication of families after

a child is removed from a custodian and planning for children’s permanency

when the family cannot be reuni ied, the Committee sought to make a separate

inquiry into matters discussed in the previous reports, speci ically a “further

inquiry” into the deaths of the four children who died in 2021. On August 9,

2022, as part of its “continued oversight of child protective services,” the

Committee sent a written request to the Department asking it to produce the

records pertaining to those children. The letter “recognize[d] that the

requested records may contain information directly relevant to current and

ongoing criminal proceedings” but stated: 4

Given our broad oversight responsibilities, we are legislative of icials to whom child protective records must be disclosed pursuant to [22 M.R.S. § 4008(3)(D)]. Thus, pursuant to our authority under 3 M.R.S. § 994(11) to directly receive information, we request that you provide us with the complete child protective case iles for the [four children in question].

[¶6] The Department, through its Commissioner at the time, Jeanne

Lambrew, responded in an August 19, 2022, letter stating that, upon advice of

the Of ice of the Maine Attorney General, the Department was unable to share

the requested records directly with the Committee due to statutory

con identiality restrictions, but that it would provide the records to OPEGA as

authorized in Title 3. The Committee served a subpoena to produce documents

on the Department on September 22, 2022, demanding that the records

pertaining to the four children be produced on or before its October 19, 2022,

meeting. The Department served an objection to the subpoena, reiterating its

position that it could not legally disclose the records to the Committee but

could, and would, furnish the requested records to OPEGA.

[¶7] On September 26, 2022, OPEGA made a formal request for the same

records that the Committee had subpoenaed. OPEGA sent the Department an

executed con identiality agreement, which required OPEGA, among other

things, to store the iles “on a server that can be accessed only by OPEGA staff

and appropriate staff from the Legislative Information Services Department” 5

and maintain working papers containing con idential information in locked

storage cabinets. The Department subsequently supplied the iles to OPEGA

pursuant to the con identiality agreement.

[¶8] On October 21, 2022, the Committee iled a complaint in the

Superior Court together with a motion, as required by statute, seeking to

compel obedience with the subpoena. See 3 M.R.S. § 430 (2024). The

Department answered and iled a responsive pleading. The parties submitted

briefs and waived oral argument. The trial court concluded that the Committee

did not have statutory authority to access con idential Department records,

denied the motion to compel, and entered judgment in favor of the Department.

[¶9] The Committee timely appealed. M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶10] The Committee challenges on two grounds the trial court’s denial

of the motion to compel obedience with its subpoena.1 First, the Committee

maintains that the trial court erred in concluding that the Committee was not

authorized by its enabling statute, 3 M.R.S. §§ 991-1002 (2024) (the OPEGA

1 The Committee advances a third argument for the irst time on appeal, namely that under our decision in Maine Sugar Industries, Inc. v. Maine Industrial Building Authority, 264 A.2d 1 (Me. 1970), the Committee has inherent legislative power to compel an executive agency to disclose con idential information via subpoena. The Department objects to our consideration of this issue because it was not raised before the trial court and therefore has not been preserved. We address this issue below. See infra ¶¶ 37-45. 6

statute), to receive and review con idential records and information. Second,

contrary to the trial court’s determination, the Committee argues that the

statutory exception in 22 M.R.S. § 4008(3)(D) authorizes disclosure of

con idential child protective records.

[¶11] We review the trial court’s interpretation of the relevant statutes

de novo. Ouellette v. Saco River Corridor Comm’n, 2022 ME 42, ¶ 8, 278 A.3d

1183. The fundamental objective in interpreting a statute is to determine the

Legislature’s intent and to give effect to that intent. State v. Hastey, 2018 ME

147, ¶ 23, 196 A.3d 432; Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 19, 107 A.3d

621; Pinkham v. Morrill, 622 A.2d 90, 95 (Me. 1993). We begin with the statute’s

language, giving due weight to the overall design, structure, and purpose of the

statutory scheme. See Dickau, 2014 ME 158, ¶ 22, 107 A.3d 621. If the language

“is clear and unambiguous, we construe the statute in accordance with its plain

meaning”; if the language is ambiguous, we then look to other indicia of

legislative intent, including legislative history. Adoption by Tamra M., 2021 ME

29, ¶ 6, 251 A.3d 311.

A. The OPEGA Statute

1. Language, Structure, and Purpose

[¶12] The OPEGA statute establishes a mechanism of legislative

oversight of government agencies and programs that is carried out by OPEGA 7

and generally overseen by the Committee. Each entity is prescribed a distinct

role, and their respective roles inform the nature and scope of access to

con idential information and records such as those at issue here.

[¶13] OPEGA “[was] created for the purpose of providing program

evaluation of agencies and programs of State Government.” 3 M.R.S. § 991.

“‘Program evaluation’ means an examination of any government program that

includes performance audits, management analysis, inspections, operations,

research or examinations of ef iciency, effectiveness or economy or evaluation

of any tax expenditure required under [chapter 37 of Title 3].” 3 M.R.S. § 992(5).

Because of the nature and scope of its charge, OPEGA requires, and is afforded,

full access to agency records, including con idential information and records.

3 M.R.S. § 997. The OPEGA statute provides:

4. Information available to of ice. Upon request of the of ice2 and consistent with the conditions and procedures set forth in this section, state agencies or other entities subject to program evaluation must provide the of ice access to information that is privileged or con idential as de ined by Title 1, chapter 13, which governs public records and proceedings.

Id. (emphasis added).3 “Privileged or con idential information obtained by the

of ice during the course of a program evaluation may be disclosed only as

2 The “of ice” referenced throughout the OPEGA statue is OPEGA itself. 3 M.R.S. § 992(3) (2024).

3 The statute also establishes detailed protocols for protecting those records, and information derived from those records, that are in the possession of OPEGA or re lected in the working papers of 8

provided by law and with the agreement of the state agency or other entity subject

to the program evaluation that provided the information.”4 Id. § 997(4)(B)

(emphasis added).

[¶14] The Committee’s statutorily de ined role is different from OPEGA’s,

and so is its speci ied access to information. The Committee was established as

a “joint legislative committee” to “oversee program evaluation and government

accountability matters.” Id. § 992(1) The Committee’s speci ic duties are set

out in section 994.5 Nothing in section 994 authorizes the Committee to

its staff. For example, even before beginning an evaluation “that may require access to records containing con idential or privileged information,” OPEGA must alert the subject agency in writing and consult with agency representatives “to discuss methods of identifying and protecting privileged or con idential information in those records.” 3 M.R.S. § 997(4)(A) (2024). OPEGA must “limit its access” to such information “by appropriate methods, which may include examining records without copying or removing them from the source.” Id.

4 Even OPEGA’s working papers that re lect such con idential information are deemed “con idential and exempt from disclosure pursuant to Title 1, chapter 13, including disclosure to the Legislative Council or an agent or representative of the Legislative Council.” Id. § 997(3) (emphasis added); see also 3 M.R.S. § 992(7) (2024) (de ining “[w]orking paper” as “all documentary and other information acquired, prepared or maintained by the of ice during the conduct of a program evaluation”).

5 Title 3 M.R.S. § 994 (2024) speci ies that the Committee has the following duties: (1) evaluate, and recommend reappointment of, the director of OPEGA; (2) review and approve OPEGA’s annual workplan; (3) direct OPEGA to conduct program evaluations; (3-A) request the State Auditor or other quali ied auditor to conduct all or part of a program evaluation when the Committee determines a quali ied auditor is required; (4) “hold public hearings for the purpose of receiving reports from the of ice and questioning public of icials about of ice indings and recommendations”; (5) “examine witnesses and . . . order the appearance of any person or the appearance of any person for the purpose of production to the committee of papers or records, including books, accounts, documents, computer disks or memory or other electronic media and other materials regardless of their physical or electronic form”; (6) “administer oaths to witnesses appearing before the committee”; (7) “vote at the committee’s discretion to endorse, to endorse in part or to release a report of the of ice without endorsement”; (8) “issue subpoenas[, which must be issued pursuant to the provisions of section 165 and chapter 21,] upon a majority vote of the committee in the event of refusal to appear or to produce papers or records, including books, accounts, documents, computer disks or memory or other 9

conduct independent investigations, audits, or program evaluations directly.

That is OPEGA’s function. The Committee directs and oversees OPEGA’s work.

Although the Committee is authorized to conduct hearings—and to examine

witnesses and to order the appearance of persons to testify or produce

documents—the hearings are expressly “for the purpose of receiving reports

from the of ice and questioning public of icials about of ice indings and

recommendations.” 3 M.R.S. § 994(4)-(5).

[¶15] Consistent with the duties it prescribes, the OPEGA statute

de ines—and limits—the information available to the Committee:

11. Information available to committee. To receive certain information. Information that is made available to the committee is governed by chapter 21, which governs legislative investigating committees, and by Title 1, chapter 13, which governs public records and proceedings.

3 M.R.S. § 994(11). Thus, the Committee may “receive certain information” that

falls into one of two categories. Id. (emphasis added).

[¶16] First, the Committee may “receive” information that is governed by

Title 1, chapter 13. Title 1, chapter 13 is the Maine Freedom of Access Act,

electronic media and other materials regardless of their physical or electronic form”; (9) “conduct meetings”; (10) “adopt rules”; (11) “receive certain information,” which “is governed by chapter 21, which governs legislative investigating committees, and by Title 1, chapter 13, which governs public records and proceedings”; and (12) establish a system for immediate review of a program or function of a state agency or other entity when major mismanagement of public funds or functions is suspected. (Emphasis added.) 10

1 M.R.S. §§ 400-414 (2024), which, among other things, de ines “public

records,” that is, records that are accessible to the public. Id. § 402(3). “Public

records” excludes “[r]ecords that have been designated con idential by statute”

and “[r]ecords that would be within the scope of a privilege against discovery

or use as evidence recognized by the courts of this State.” Id. § 402(3)(A)-(B).

This signi ies a clear intention to authorize the Committee to access only public

information or records—that is, information or records available to the public

either directly or through public proceedings—and not privileged or

con idential information or records.6

[¶17] Second, the Committee may receive information “governed by

chapter 21” of Title 3.7 3 M.R.S. § 994(11). Chapter 21 establishes the rules and

6As discussed below, see infra ¶ 25, the Legislature used the identical language referencing “Title 1, chapter 13” on an earlier occasion when it temporarily removed OPEGA’s access to privileged and con idential information and con ined OPEGA to accessing publicly available information.

7 This reference to chapter 21 of Title 3 parallels section 994(8)’s quali ication of the Committee’s

subpoena power. Section 994(8) provides: “A subpoena issued under this subsection must be issued pursuant to the provisions of section 165 and chapter 21.” Title 3 M.R.S. § 165 (2024) de ines the authority of joint standing committees and joint select committees. As mentioned above, the Committee was established as a “joint legislative committee.” 3 M.R.S. § 992(1). As relevant here, section 165(7) provides:

When the duties assigned to a committee so require, the Legislature may grant to it the power to administer oaths, issue subpoenas, compel the attendance of witnesses and the production of any papers, books, accounts, documents and testimony, and to cause the deposition of witnesses, whether residing within or without the State, to be taken in the manner prescribed by law for taking depositions in civil actions in the Superior Court. When the Legislature grants this power to a joint standing committee or joint select committee, such committee functions as an investigating committee and is subject to the provisions of chapter 21. 11

procedures applicable to “legislative investigating committees,” including, as

relevant here, rules regarding the issuance of subpoenas. See 3 M.R.S. §§ 411,

423 (2024). A key provision in chapter 21 is section 412, which provides: “The

authorization creating an investigating committee shall clearly state, and

thereby limit, the subject matter and scope of the study or investigation.

No investigating committee shall exceed the limits set forth in such

authorization.” 3 M.R.S. § 412 (2024) (emphasis added).

[¶18] Thus, this imposes another limitation on the nature of the

information and records that the Committee may receive, either directly or via

subpoena: it may receive only information and records that are relevant to, and

within the scope of, the Committee’s duties, authority, and purpose. This is

consistent with the general principle that a legislative committee’s authority to

subpoena records is co-extensive with, and cannot exceed, the proper scope of

the committee’s legislatively prescribed duties. See Me. Sugar Indus., Inc. v. Me.

Indus. Bldg. Auth., 264 A.2d 1, 7 (Me. 1970) (stating that “it is to be presumed

that the Legislature is concerned only with matters within the proper scope of

investigation”); cf. Trump v. Mazars USA, LLP, 591 U.S. 848, 862-63 (2020)

Here, the Committee has been granted the power to order the appearance of any person, administer oaths, and issue subpoenas in the event of a refusal to appear or produce documents. 3 M.R.S. § 994(5)-(6), (8). It does not appear that the OPEGA statute grants the Committee the authority to conduct depositions. 12

(“Most importantly, a congressional subpoena is valid only if it is related to, and

in furtherance of, a legitimate task of the Congress.” (quotation marks omitted)).

A subpoena must serve a “valid legislative purpose.” Quinn v. United States, 349

U.S. 155, 161 (1955).

[¶19] The OPEGA statute’s plain language, structure, and purpose creates

a clear division of roles between OPEGA and the Committee; their respective

access to agency records and information follows from that division of roles.

Notwithstanding the Committee’s authority to subpoena witnesses and

records, section 994(11) appears to prohibit it from accessing con idential

information generally. To the extent this remains ambiguous, the legislative

history of the OPEGA statute con irms this conclusion.

2. Legislative History

[¶20] In 2002, a bill, L.D. 2193 (120th Legis. 2002), was introduced to

establish a mechanism to evaluate and audit state agencies and programs. As

originally proposed, the bill established both OPEGA and the Committee but

purported to give the Committee itself direct involvement in program

evaluations and reviews. See id. at 1 (“The Joint Legislative Oversight

Committee . . . is created for the purpose of providing program evaluation of

agencies and programs of State government.”). 13

[¶21] L.D. 2193 was controversial. Numerous concerns were raised,

including fears about the potential for partisan abuse, worries about unfettered

access to privileged or con idential data, and a perception that the public may

lack con idence in a process that could be viewed as overly political. See 3 Legis.

Rec. S-1923 to S-1924, S-1992 to S-2000 (2d Reg. Sess. 2002). In response, the

bill was amended twice and was the subject of several loor debates, during

which proponents sought to alleviate the concerns. Id.; Comm. Amend A to L.D.

2193, No. H-1039 (120th Legis. 2009); Sen. Amend. C to Comm. Amend. A to

L.D. 2193, No. S-595 (120th Legis. 2009).

[¶22] For example, one of the proponents, Senator Pendleton, assured

the Senate that in one of the amendments, “[W]e wanted an oversight

committee but we also wanted an of ice with a purpose, to serve as an

information gathering of ice for the entire legislature.” 3 Legis. Rec. S-1993

(2d Reg. Sess. 2002). Senator Pendleton added, “We thought that in order for

this of ice to function ef iciently, it needs to be as far away from the perception

of any kind of partisan politics to the public and also to those bureaus,

programs, or entities that were being examined.” Id.

[¶23] Another proponent, Senator Youngblood, said:

No committee person, no legislator, would be involved based on this present legislation. They would never be involved in doing that research. No legislator would be involved in doing that research. 14

Elected of icials oversee this function. . . . There are all those safeguards in it.

Id. at S-1998. Later, he again emphasized:

No legislator has the ability to go out and get involved in any research. No legislator has the ability to review the data that is being researched and in luence the report prior to the report being given back to the committee. The committee then has the ability and the statutory authorization to accept the report, to deny the report, or to accept it in part. . . . The day that this report is made available to that committee it is made available to each and every one of us and the general public. That’s the only way that you have the total perception by the consuming public, by the people who sent us here, that this is a non-biased, believable[ ] report.

Id. at S-1999 (emphasis added).

[¶24] Responding to a speci ic concern raised about the con identiality

of records and data, Senator Youngblood acknowledged that con identiality was

a “big concern” but assured his colleagues that the bill was written with speci ic

provisions pertaining to the con identiality of records and working papers of

OPEGA. Id. at S-1998 to S-1999.

[¶25] The legislation enacted later that session, as amended, did not

include the originally proposed provisions authorizing the Committee to have

direct involvement in program evaluations;8 established essentially the same

8 As amended and inally enacted, 3 M.R.S.A. § 991 (Supp. 2002) read essentially as it does

currently: “The Of ice of Program Evaluation and Government Accountability is created for the purpose of providing program evaluation of agencies and programs of State Government.” P.L. 2001, ch. 702, § 2 (effective July 25, 2002). 15

oversight functions and duties for the Committee that are currently re lected in

3 M.R.S. § 994(1)-(10); and included a provision substantively identical to the

current section 997(4), giving OPEGA access to privileged and con idential

information held by governmental entities:

4. Information available to the of ice. Notwithstanding any other law relating to the con identiality of information, all information in the iles of a state agency or other entity subject to program evaluation by the of ice under this chapter must be made available when necessary to the of ice for performance of its duties.

P.L. 2001, ch. 702, § 2 (effective July 25, 2002).

[¶26] Nonetheless, concerns persisted about giving even OPEGA

unfettered access to agency-held con idential information and records. The

following year, the Legislature amended section 997(4) to remove OPEGA’s

authority to access con idential information in the possession of state agencies

without consent and instead restricted OPEGA to information and records

publicly available under FOAA:

4. Information available to the of ice. Notwithstanding any other law relating to the con identiality of information, all information in the iles of a state agency or other entity subject to program evaluation by the of ice under this chapter must be made available when necessary to the of ice for performance of its duties. Information that is made available to the of ice is governed by chapter 21, which governs legislative investigating committees, and by Title 1, chapter 13, which governs public records and proceedings. 16

P.L. 2003, ch. 451, § KKK-4 (emergency, effective June 12, 2003); see also 3 M.R.S.

§ 997(4)(C).

[¶27] Because this change was controversial, another provision was

enacted at the same time requiring that the Committee review and determine

the kind of con idential information required “to ful ill the purposes set forth

in [the OPEGA statute]” and then to “report its indings and recommendations,

together with any necessary proposed implementing legislation, to the Second

Regular Session of the 121st Legislature.” P.L. 2003, ch. 451, § KKK-5

(emergency, effective June 12, 2003).

[¶28] The Committee apparently followed up on this charge. In 2004,

the Legislature amended section 997(4) to restore OPEGA’s access to

agency-held con idential records. P.L. 2003, ch. 673, § GGGG-9 (effective July 30,

2004). The amendment was paired with the addition of a new provision—

section 994(11)—limiting the Committee’s access to con idential information.

P.L. 2003, ch. 673, § GGGG-7 (effective July 30, 2004). The newly added section

994(11) restricted the information that could be received by or made available

to the Committee to information “governed by chapter 21, which governs

legislative investigating committees, and by Title 1, chapter 13, which governs

public records and proceedings.” The same language that had been used to

remove OPEGA’s ability to access con idential records was used to de ine (and 17

limit) the information accessible by the Committee. Compare P.L. 2003, ch. 451,

§§ KKK-4 (emergency, effective June 12, 2003), with P.L. 2003, ch. 673, § GGGG-7

(effective July 30, 2004).

[¶29] In an April 2004 loor address, Senator Youngblood stressed the

importance of the amendment restoring OPEGA’s access to con idential records

while simultaneously restricting access to all legislators: “It clari ies an area of

con identiality. I’ve said before in this chamber and I’ll say it again, this

committee, this legislature, with these changes in that particular piece of statute,

does not give any of us any ability to get at con idential information.” 3 Legis Rec.

S-1665 (2d Spec. Sess. 2004) (emphasis added).

[¶30] Section 994(11) has remained unchanged since its enactment in

2004. This is especially signi icant in light of two additional considerations.

[¶31] First, the following year, in 2005, a controversy arose like the one

at issue here. The Committee sought direct access to the Department’s

con idential child protective records. See Op. Me. Att’y Gen. 2005-06. Then

Attorney General G. Steven Rowe issued an advisory opinion in which he opined

that the OPEGA statute set out “different standards applicable to the Committee,

as distinguished from those applicable to the OPEGA staff,” and, citing section

994(11), concluded that “records that are con idential under [Title 1, chapter

13] are not available to the Committee.” Id. at 3. Though the opinion of the 18

Attorney General was not binding, it put the Committee on notice of the very

issue raised in this appeal. Yet, in the twenty intervening years, the Legislature

has taken no action to amend or clarify section 994(11)—at least until recently.

[¶32] Second, in the First Regular Session and First Special Session of the

131st Legislature, three bills were introduced to expand section 994(11) to

expressly authorize the Committee to access con idential information. See L.D.

1195 (131st Legis. 2023); L.D. 1275 (131st Legis. 2023); L.D. 1725 (131st Legis.

2023). L.D. 1195 proposed to amend section 994(11) to authorize the

Committee “[t]o receive papers or records received as a result of a subpoena”

and to designate those papers or records as con idential. L.D. 1275 proposed to

amend section 994(11) to speci ically authorize the Committee “[t]o receive

documents from the Department of Health and Human Services relating to an

investigation of the death of a child with previous department involvement” and

to designate such documents as con idential. And L.D. 1725 proposed to amend

section 994(11) to expressly authorize the Committee to receive “information

and records, including information and records that are otherwise privileged or

con idential.” None of these bills was enacted.

B. Exception under 22 M.R.S. § 4008(3)(D)

[¶33] Section 4008(1) of Title 22 provides: 19

1. Con identiality of records and information. All department records that contain personally identifying information and are created or obtained in connection with the department’s child protective activities and activities related to a child while in the care or custody of the department, and all information contained in those records, are con idential and subject to release only under the conditions of subsections 2 and 3.

The Committee acknowledges that the records it subpoenaed fall within, and

are protected by, section 4008(1). It contends, however, that a provision in

section 4008(3)(D) is an exception to the general rule of con identiality that

mandates disclosure here. Section 4008(3)(D) provides:

3. Mandatory disclosure of records. The department shall disclose relevant information in the records to the following persons:

....

D. An appropriate state executive or legislative of icial with responsibility for child protection services, provided that no personally identifying information may be made available unless necessary to that of icial’s functions.

The Committee argues that its members are “legislative of icials with

responsibility for child protection services.” We ind this argument

unpersuasive.

[¶34] Under a plain reading of section 4008(3)(D), the Committee itself

would not be considered a “legislative of icial.” Nor does the Committee have

“responsibility for child protection services.” Its duties are set out in 20

section 992, as discussed above. Strictly speaking, individual Committee

members are elected legislators, not “legislative of icials.” And even if they

could be considered “legislative of icials,” individual Committee members do

not have “responsibility for child protection services” in their capacity as

members of the Committee. The Committee’s general oversight responsibility

to ensure that state programs are being properly administered is fundamentally

different than having speci ic “responsibility for child protection services.” Id.

The Committee’s function is “to oversee program evaluation and government

accountability matters,” 3 M.R.S. § 992(1), and to direct OPEGA, id. § 994(3)—

not to exercise responsibility for child protection services.

[¶35] Even if section 4008(3)(D) were ambiguous, it is not suf iciently

clear that the Committee’s reading is supportable. When a statute’s language is

ambiguous, we “consider the statute’s meaning in light of its legislative history

and other indicia of legislative intent.” Hastey, 2018 ME 147, ¶ 23, 196 A.3d

432. Section 4008(3)(D) was enacted in 1980, P.L. 1979, ch. 733, § 18 (effective

July 3, 1980), well before the OPEGA statute was enacted. Clearly, at the time it

was enacted, section 4008(3)(D) was not intended to apply speci ically to this

Committee or its members. Moreover, when viewed against the backdrop of the

Committee’s function and the limitations imposed on information that may be 21

“received” by the Committee, we cannot conclude that it is properly read now

to mandate Committee access to con idential child protective iles.

[¶36] Thus, taking into consideration its plain language and history as

well as the context of the statutory framework as a whole, we conclude that the

exception in section 4008(3)(D) does not operate to mandate disclosure to the

Committee of the records at issue here. 9

C. Inherent Authority under Maine Sugar

[¶37] The Committee, citing our decision in Maine Sugar Industries, Inc.

v. Maine Industrial Building Authority, 264 A.2d 1 (Me. 1970), raises for the irst

time on appeal the argument that it has inherent power to compel the

Department to disclose con idential information via subpoena. The

Department objects to our consideration of this issue because it has not been

preserved.

9 The Committee cites another statutory exception to the con identiality of child protective

records in 22 M.R.S. § 4008 (2024)—namely, subsection 3(I)—as a basis for its access. Section 4008(3)(I) mandates disclosure to a “government entity that needs such information in order to carry out its responsibilities under law to protect children from abuse and neglect.” The plain language of this provision does not support the Committee’s argument. It is a stretch to believe that the Legislature would consider or reference one of its committees as a “government entity” without being more speci ic. Even if the Committee is included within that generic term, neither the Committee as a whole nor its individual members have speci ic “responsibilities under law to protect children from abuse and neglect.” Id. Again, the duties of the Committee are expressly set out in the statute, 3 M.R.S. § 994, and those duties do not include protection of children from abuse or neglect. We ind more persuasive the Department’s interpretation of section 4008(3)(I), namely that it is intended to facilitate sharing of child-speci ic information among governmental entities responsible for the day-to-day enforcement of child protection laws. 22

[¶38] Generally, we do not entertain issues on appeal that have not been

raised before the trial court. See Warren Const. Grp., LLC v. Reis, 2016 ME 11,

¶ 9, 130 A.3d 969 (reaf irming that “unless a fundamental liberty interest is at

stake, we will not reach an issue that is raised for the irst time on appeal”);

Alexander, Maine Appellate Practice § 403(a) at 240 (6th ed. 2022); see also

Teel v. Colson, 396 A.2d 529, 534 (Me. 1979) (“It is a well settled universal rule

of appellate procedure that a case will not be reviewed by an appellate court on

a theory different from that on which it was tried in the court below.”).

[¶39] The Committee acknowledges that this issue is unpreserved but

contends that we have discretion in an “appropriate situation,” Scott v. Lipman

& Katz, P.A., 648 A.2d 969, 974 (Me. 1994), and urges us to entertain the issue,

citing Truman v. Browne, 2001 ME 182, ¶ 12, 788 A.2d 168 (holding that we may

consider an unpreserved issue if “it is purely legal, its resolution does not

require the introduction of additional facts, its proper resolution is clear, and a

failure to consider it may result in a miscarriage of justice”). Here, the issue is

purely a legal one; it requires no factual development beyond the existing

record; and its resolution seems clear. In addition, this matter involves a

dispute between two branches of government, and “when institutional interests

are at stake, the case for the favorable exercise of a court’s discretion is

strengthened, and waiver rules ought not to be applied in lexibly.” Nat’l Ass’n of 23

Soc. Workers v. Harwood, 69 F.3d 622, 628 (1st Cir. 1995). We therefore consider

the issue.

[¶40] In Maine Sugar, the issue presented to us was whether an ad hoc,

“special interim legislative committee” with subpoena power was authorized to

access documents that were protected by a general con identiality statute.

264 A.2d at 2-4. This special interim legislative committee was formed for the

sole purpose of investigating a crisis that concerned the insuring of industrial

loans and threatened the stability of the northern Maine economy. Id. We

concluded that the con identiality statute in that case10 “must be construed as

prohibiting voluntary disclosure . . . but not as prohibiting mandatory disclosure

. . . when required by the [special interim legislative committee].” Id. at 6.

[¶41] The Committee reads Maine Sugar as holding that legislative

investigating committees have inherent authority to access con idential

information unless there is an explicit statutory prohibition against such access.

The Committee argues that, like the con identiality statute at issue in Maine

Sugar, 22 M.R.S. § 4008 does not explicitly bar disclosure of the Department’s

10 The con identiality statute at issue in Maine Sugar, read, in relevant part, “No member of the authority, agent or employee thereof shall divulge or disclose any information obtained from the records and iles or by virtue of such person’s of ice concerning the name of any lessee or tenant or information supplied by any lessee, tenant, mortgagee or local development corporation in support of an application for mortgage insurance.” 10 M.R.S.A. § 852 (Supp. 1970) (repealed and replaced by P.L. 1981, ch. 476, § 1 (effective Oct. 1, 1981)). 24

con idential records via legislative subpoena, and, therefore, the Committee

retains its inherent authority to access the records.

[¶42] Maine Sugar does not support the Committee’s position. In that

case, we “presumed” that the special interim legislative committee in Maine

Sugar was “concerned only with matters within the proper scope of

investigation,” but that is not so here. 264 A.2d at 7. As we discussed above, the

Committee’s duties do not include conducting program evaluations or

overseeing child protective services. Reviewing child protective records is

therefore not within the scope of the Committee’s duties. Moreover, the issue

in Maine Sugar was the effect of a general con identiality statute on the special

interim legislative committee’s access to con idential information; there was no

statute speci ically limiting the committee’s access. Here, not only are child

protective records con idential by a statute of general applicability, 22 M.R.S.

§ 4008, but the Committee is speci ically prohibited by its enabling legislation

from receiving privileged or con idential records or information, 3 M.R.S.

§ 994(11).

[¶43] While the appeal in Maine Sugar was pending, the Legislature

amended the statute at issue, 10 M.R.S.A. § 852 (Supp. 1970), to make clear its

intention that the special interim legislative committee have access to the

con idential information the committee was seeking. 264 A.2d at 4; see P.L. 25

1969, ch. 584, § 1 (effective May 9, 1970) (“Nothing in [section 852] shall be

construed to prohibit the disclosure of information from records or iles of the

authority or the production of records or iles of the authority to a special

interim legislative investigating committee, or its agent, upon written demand

from the chairman of the committee or any member of the committee

designated by him.”). Here, as noted above, the Legislature considered

clarifying the Committee’s authority to allow it to receive con idential child

protective records but did not do so.

[¶44] In Maine Sugar, we deemed access to the records to be necessary

for the special interim legislative committee to do its work because “‘[a]

legislative body cannot legislate wisely or effectively in the absence of

information respecting the conditions which the legislation is intended to affect

or change.’” 264 A.2d at 6 (quoting McGrain v. Daugherty, 273 U.S. 135, 175

(1927)). Here, the OPEGA statute contemplates that the Committee (and,

simultaneously, the Legislature) is “fully informed” when it receives a report

from OPEGA.11 Id. Although the Committee may seek supplemental

information in connection with a report, the “legislative body,” i.e., the

Legislature, has chosen to limit the scope of information that it may “receive.”

11 At the time the Committee made its request for the records in this case, OPEGA staff were “well into deeply reviewing every document [and] every report.” 26

Id. (quoting McGrain, 273 U.S. at 175). Thus, the “legislative body” is not

precluded from “legislat[ing] wisely or effectively in the absence of information

respecting the conditions which the legislation is intended to affect or change.”

Id. (quoting McGrain, 273 U.S. at 175).

[¶45] In short, unlike the circumstances in Maine Sugar, the Committee’s

authority to access con idential child protective records is limited by the scope

of its statutorily prescribed duties and by the class of information that it may

receive.

III. CONCLUSION

[¶46] The Legislature controls the authority and functioning of its own

committees. For the reasons set out above, we conclude that the Legislature has

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 entry is:

Judgment af irmed. 27

LAWRENCE, J., concurring.

[¶47] I agree with the Court’s determination that the Committee was not

entitled to the con idential records at the time of its subpoena. Where I part

ways with the Court’s opinion is that it goes too far in concluding that the

Committee is never authorized to seek and, if necessary, demand the production

of con idential information like the Department’s child protective records.

[¶48] “The fundamental objective in interpreting statutes is to determine

the intent of the Legislature in enacting them and to give effect to that intent.”

Pinkham v. Morrill, 622 A.2d 90, 95 (Me. 1993). We interpret a statute’s

language “to avoid absurd, illogical, or inconsistent results and attempt[] to give

all of its words meaning.” Jackson Lumber & Millwork Co., Inc. v. Rockwell Homes,

LLC, 2022 ME 4, ¶ 10, 266 A.3d 288. As a general rule, words and phrases that

are not expressly de ined in a statute “must be given their plain and natural

meaning and should be construed according to their natural import in common

and approved usage.” Goodine v. State, 468 A.2d 1002, 1004 (Me. 1983); see also

1 M.R.S. § 72(3) (2024) (“Words and phrases shall be construed according to

the common meaning of the language.”).

[¶49] This Court looks to dictionary de initions to help determine the

ordinary meaning of words in a statute. See, e.g., Searle v. Town of Bucksport,

2010 ME 89, ¶¶ 8-10, 3 A.3d 390. In looking for the plain meaning, we view 28

“the relevant provisions in the context of the entire statutory scheme to

generate a harmonious result.” Corinth Pellets, LLC v. Arch Specialty Ins. Co.,

2021 ME 10, ¶ 19, 246 A.3d 586 (quotation marks omitted). This Court “should

not read a statute to con lict with another statute when an alternative, reasonable

interpretation yields harmony.” Pinkham, 622 A.2d at 95 (emphasis added).

[¶50] If a statute is unambiguous, “we interpret the statute directly

without examining legislative history. We look to legislative history and other

extraneous aids in interpretation of a statute only when we have determined that

the statute is ambiguous,” meaning that it “is reasonably susceptible to different

interpretations.” Thurston v. Galvin, 2014 ME 76, ¶ 13, 94 A.3d 16 (emphasis

added) (quotation marks omitted).

[¶51] As the Court’s opinion states, OPEGA was created “for the purpose

of providing program evaluation of agencies and programs of State

Government.” 3 M.R.S. § 991 (2024). Because of the nature and scope of its

charge, OPEGA requires, and is afforded, full access to agency records, including

con idential information. 3 M.R.S. § 997(4) (2024).

[¶52] The Committee was established as a “joint legislative committee”

to “oversee program evaluation and government accountability matters.”12

The Committee is a bipartisan joint legislative committee, composed of an equal number of 12

members from the two largest political parties in each chamber of the Legislature. Joint Rule 371 (131st Legis.). 29

3 M.R.S. § 992(1) (2024) (emphasis added). The Committee directs and

oversees OPEGA’s work pursuant to the provisions of the Committee’s enabling

statute, 3 M.R.S. § 994 (2024).13 Black’s Law Dictionary de ines “matter” as “[a]

subject under consideration.” Matter, Black’s Law Dictionary (12th ed. 2024).

Here, the subject under consideration is the deaths of four children who

received child protective services from the Department. Therefore, the

Committee’s role is to oversee OPEGA’s investigation into the deaths of these

four children.

[¶53] The Committee is not authorized to conduct independent

investigations, audits, or program evaluations directly. However, given the plain

13 Title 3 M.R.S. § 994 (2024) speci ies that the Committee has, inter alia, the following duties: to

review and approve OPEGA’s annual workplan; to direct OPEGA to conduct program evaluations; “[t]o hold public hearings for the purpose of receiving reports from [OPEGA] and questioning public of icials about [OPEGA’s] indings and recommendations”; “[t]o examine witnesses and to order the appearance of any person or the appearance of any person for the purpose of production to the [C]ommittee of papers or records, including books, accounts, documents, computer disks or memory or other electronic media and other materials regardless of their physical or electronic form”; to administer oaths to witnesses appearing before the Committee; “[t]o vote at the [C]ommittee’s discretion to endorse, to endorse in part or to release a report of [OPEGA] without endorsement”; “[t]o issue subpoenas [pursuant to the provisions of section 165 and chapter 21] upon a majority vote of the [C]ommittee in the event of refusal to appear or to produce papers or records, including books, accounts, documents, computer disks or memory or other electronic media and other materials regardless of their physical or electronic form”; to conduct meetings; to adopt rules; “[t]o receive certain information [in accordance with] chapter 21, which governs legislative investigating committees, and . . . Title 1, chapter 13, which governs public records and proceedings”; and “[t]o establish a system to provide immediate review of a program or function of a state agency or other entity [when] major mismanagement of public funds or functions” is suspected.

(Emphasis added.) 30

language and context of the statutory scheme, this lack of authorization does

not preclude the Committee from accessing con idential information pursuant

to its statutory duties set out in section 994.

[¶54] Section 994 provides that the information available to the

Committee is governed by (a) the Rules for Legislative Investigations, Title 3,

chapter 21, and (b) the Freedom of Access Act (FOAA), Title 1, chapter 13.

3 M.R.S. § 994(11). The Rules for Legislative Investigations expressly provide

for a legislative committee to be granted the power to “issue subpoenas . . . in

connection with any study or investigation,” see 3 M.R.S. § 411 (2024) (emphasis

added),14 for a committee granted subpoena power to be deemed an

“investigating committee,” 3 M.R.S. § 402(4) (2024), and for an investigating

committee to utilize an “executive session” to exclude the public from that

session and the discussion of con idential matters, id. § 402(2). As a legislative

14 Under Title 3, chapter 37, the Committee alone determines the subject matter and scope of the

evaluations and investigations conducted by OPEGA. 3 M.R.S. § 994(3); 3 M.R.S. § 992(1). See also 3 M.R.S. § 412 (2024) (“The authorization creating an investigating committee shall clearly state, and thereby limit, the subject matter and scope of the study or investigation.”). Here, in July 2021, after four children died despite the Department’s involvement, the Committee directed OPEGA to conduct an immediate review of the Department’s child protective services. OPEGA developed a three-phase comprehensive review plan to evaluate the adequacy and effectiveness of the child protective services provided by the Department. In August 2021, the Committee approved the scope of the work in the review of child protective services to include the following:

 An Information Brief on Oversight of Child Protective Services due by January 2022;  An Evaluation Report on Protecting Child Safety – Initial Investigation and Assessment due by March 2022; and  An Evaluation Report on Protecting Child Safety – Reuni ication and Permanency due by September 2022. 31

committee granted subpoena power, the Committee thus has the power to hold

executive sessions to discuss con idential matters.

[¶55] FOAA governs the information available to the Committee via its

subpoena power. 3 M.R.S. § 994(11). FOAA sets forth that it is the intent of the

Legislature that its actions be taken openly, and that the records related to those

public proceedings be open to public inspection. 1 M.R.S. § 401 (2024). But

FOAA also makes clear that executive sessions are permitted in order to allow

for private “[d]iscussions of information contained in records made, maintained

or received by a body or agency when access by the general public to those

records is prohibited by statute.” 1 M.R.S. §§ 401, 405(6)(F) (2024). FOAA also

de ines both “public records,” 1 M.R.S. § 402(3) (2024), and “con idential and

privileged records,” 1 M.R.S. § 402(3)(A), (B), demonstrating that “records” may

refer to both public and con idential records. Thus, it is clear that the

Committee may exercise its subpoena power with respect to both public and

con idential information. Therefore, contrary to the contention in the Court’s

opinion, the plain language of FOAA does not expressly preclude the Committee

from accessing con idential information,15 and the Rules for Legislative

15 The Court’s opinion, like the trial court’s opinion, points to the 2005 Opinion of the Attorney General, which concluded that 3 M.R.S. § 994(11) does not permit con idential records to be shared with the Committee. As we have repeatedly observed, even our own advisory opinions have no precedential value or conclusive effect. See, e.g., Op. of the Justices, 2017 ME 100, ¶ 9, 162 A. 2d 188. This is the norm where advisory opinions are issued by a state’s highest court. See Irons v. R.I. Ethics 32

Investigations speci ically contemplate this possibility by allowing for executive

sessions to discuss con idential matters.

[¶56] In performing its duties relative to receipt of OPEGA’s reports, the

Committee has the authority to conduct hearings. 3 M.R.S. § 994(4)-(8). With

respect to those hearings, the Committee may seek information and the

production of “papers or records, including books, accounts, documents,

computer disks or memory or other electronic media and other materials

regardless of their physical or electronic form,” 3 M.R.S. § 994(5), and nothing

in this portion of the enabling statute expressly precludes the Committee’s

pursuit of con idential information. Moreover, if information sought by the

Committee is not provided, the Committee may issue a subpoena for the

production of that information.16 3 M.R.S. § 165(7) (2024); 3 M.R.S. § 423

(2024); 3 M.R.S. § 994(8), (11). Again, nothing in the statutes pertaining to the

Comm’n, 973 A.2d 1124 n.15 (R.I. 2009). Similarly, we are not bound by an advisory opinion of the Attorney General. See Stewart Title Guaranty Co. v. State Tax Assessor, 2009 ME 8, ¶ 19, 963 A.2d 169. See also Swepi, LP v. Mora Cnty., 81 F.Supp. 3d 1075, 1193 (2015) (stating that attorney general advisory opinions and letters do not have the force of law). The 2005 Opinion of the Attorney General therefore has no precedential value and its conclusion regarding the Committee’s access to the Department’s con idential records need not be accorded any weight for the purposes of the matter before us. Further, it is not unusual, as occurred here before the court, for the Of ice of the Attorney General to actually take opposing positions on policy and litigation. Cf. Op. of the Justices, 2015 ME 27, ¶ 23 n.3, 112 A.3d 926.

16 The Committee cannot issue a subpoena unless there is a majority vote of its members in favor

of doing so. 3 M.R.S. § 994(8). 33

Committee’s authority to issue a subpoena precludes the use of the subpoena

to obtain con idential information.

[¶57] Seeking the child protective records to facilitate its determinations

in regard to OPEGA’s report would be entirely consistent with the Committee’s

enabling statute. Such information may be needed for the Committee to

“question[] public of icials about [OPEGA’s] indings and recommendations”

per section 994(4) or to determine whether to endorse OPEGA’s

recommendations per section 994(7). Such a request would allow the

Committee to act on its statutory duties and thus would not constitute an

independent evaluation of the Department’s child protective services by the

Committee.

[¶58] The Committee’s pursuit of con idential information in this limited

context would be more in line with the statutory posture of the legislative

investigating committee in Maine Sugar Industries, Inc. v. Maine Industrial

Building Authority, 264 A.2d 1 (Me. 1970). Both matters involve a legitimate

investigation into a subject matter clearly within the remit of the respective

legislative committees. See id. at 3-4. Although the Committee cannot conduct

its own investigation, the Committee, like the one in Maine Sugar, has subpoena

power that it may use to obtain con idential information in order to meet its

legislative duties. See id. at 4. In both instances, the subpoena serves a 34

legitimate legislative duty—in Maine Sugar, it was the direct pursuit of an

investigation, and here, it is the prudent exercise of discretion to review

OPEGA’s report, determine whether or to what degree to endorse it, and decide

whether to propose legislation to implement OPEGA’s recommendations. See 3

M.R.S. § 994(4), (7). Further, as was true of 10 M.R.S.A. § 852 (Supp. 1970) in

Maine Sugar,17 the statute here that purportedly bars the Committee’s access to

con idential information, 22 M.R.S. § 4008 (2024), does not do so expressly.18

17 The Court’s opinion notes that, during the pendency of the appeal in Maine Sugar, the

Legislature passed an amendment to the statute at issue, 10 M.R.S.A. § 852 (Supp. 1970). This amendment made the con idential information shielded by the statute subject to disclosure to a special interim legislative investigative committee pursuant to a subpoena issued by the committee upon a future effective date. The Court’s opinion concludes that the amendment therefore made clear the Legislature’s ultimate intent on the disclosure of the information to the Committee. The Maine Sugar Court, however, explicitly set forth that its conclusion that section 852 did not prohibit mandatory disclosure of the con idential information in response to the legislative committee’s subpoena was its interpretation of the statute (a) as it stood prior to the amendment and (b) independent of the construct of the amendment on its future effective date. Me. Sugar, 264 A.2d at 6.

The Court’s opinion suggests that, notwithstanding the statute’s language, Maine Sugar requires a balancing test to determine whether access should be afforded to the Committee, and that in this matter that test would lead to the denial of access. Here, the deaths within a three-month span of four children whose families had been involved with the Department heightened concerns for the safety of Maine children and highlighted the need for legislative intervention to address potential systemic issues in the provision of child welfare services. The Committee therefore directed OPEGA to immediately perform an evaluation of the Department’s provision of child protective services. As that evaluation proceeds, the Committee reasonably could conclude that examination of the Department’s case records is needed in order to ful ill its duty to get to the root causes of these child welfare issues and to fashion an appropriate legislative solution for what is discovered. Moreover, section 4008 makes clear that (a) the Department’s con idential records may be used only for the purposes for which the release was intended, and (b) the knowing dissemination of the con idential records is a Class E crime. 22 M.R.S. § 4008(1), (4). On these facts, the result of a balancing test is not necessarily the foregone conclusion that the Court’s opinion suggests.

18 In response to section 4008’s lack of an express bar on the Committee’s access to the Department’s case records, the Court’s opinion narrowly construes statutory exceptions to FOAA to conclude that none of the exceptions set forth in section 4008 justify disclosure to the Committee. But, as argued supra n.17, under the Maine Sugar balancing test that contention is at best uncertain. Moreover, the Court’s contention may be entirely misplaced under a plain reading of the language in 35

[¶59] Fundamentally, the Court’s opinion contends that the language in

22 M.R.S. § 4008(3)(D) is so awkwardly phrased it cannot be read to refer to the

Committee. Given the usual and customary way that the Legislature organizes

itself to do its work, however, it is entirely logical, unsurprising, and within the

plain meaning of section 4008(3)(D) that the members of the Committee fall

within the ambit of this provision. The Committee has clear authority over this

substantive area of law as a result of the evaluation of child protective services

conducted at the Committee’s behest. Similarly, although its authority is subject

to durational limits19—by directing, overseeing, and reviewing an evaluation of

the adequacy and effectiveness of child protective services; determining

whether to endorse the report on the evaluation; and exercising discretion over

whether to propose legislation to implement the indings and

recommendations from the report on the evaluation of the Department—the

Committee has actual, speci ic, and unambiguous statutory responsibility for

the provision of child protective services in the immediate circumstances

section 4008(3)(D) that interprets the language so as to avoid absurd, illogical, or inconsistent results; give all of the words meaning; and view it in the context of the entire statutory scheme so as to generate a harmonious result.

19 The Committee’s authority is durationally limited due to the unique way that the Committee’s

enabling statute delegates selective legislative authority to it. See 3 M.R.S. §§ 991, 994. Notably, this self-determined “targeted-task” authority exercised by the Committee in the discretion afforded to it through its enabling statute is not unlike the express “targeted-task” authority delegated to the “Special Interim Legislative Committee” in Maine Sugar. Me. Sugar, 264 A.2d at 3-4. 36

before this Court.20 Therefore, each member of the Committee literally meets

and satis ies the plain meaning of the words “[a] legislative of icial with

responsibility for child protective services” as set forth in 22 M.R.S.

§ 4008(3)(D), thus mandating disclosure to the Committee, consistent with its

enabling statute.21

[¶60] It is therefore axiomatic that the Committee constitutes a body of

legislative of icials that could need the Department’s con idential information

to carry out its responsibilities to protect children from abuse and neglect. “It

is the proper duty of a [legislative] body to look diligently into every affair of

government . . . . It is meant to be the eyes and the voice, and to embody the

wisdom and will of its constituents. Unless [the Legislature] ha[s] and use[s]

every means of acquainting itself with the acts and the disposition of the

administrative agents of the government, the [state] must be helpless to learn

20Interestingly, OPEGA’s report on child protective services, as a part of the legislative oversight of child protective services, notes two areas for further consideration by the Committee in regard to the child protective services system: (i) the provision of services for children and families in the system and (ii) the prevention of child abuse and neglect in the context of giving attention to the three levels of prevention identi ied by the experts.

21 This analysis is equally applicable to section 4008(3)(I), which mandates access to con idential

information held by the Department for “any [state] government[al] entity” or agent of such an entity that needs such information in order to carry out its responsibilities under law to protect children from abuse and neglect. Based on the plain meaning of this language, the Committee constitutes a state governmental entity and thus each member of the Committee is an agent of a state governmental entity. As noted above, supra ¶¶ 56-57, the authority and duties delegated to the Committee through its enabling statute could make access to the Department’s con idential information necessary for the Committee to carry out its responsibilities under law to protect children from abuse and neglect. 37

how it is being served.” Trump v. Mazars USA, LLP, 591 U.S. 848, 865 (2020)

(quotation marks omitted).

[¶61] In the instant matter, as of the time the Committee issued its

subpoena (and then sought to enforce it), the Committee had not yet received

(i) any of OPEGA’s evaluations on the Department’s handling of investigations

regarding the four deceased children to supplement the report on child

protective services investigations, or (ii) the inal phase of the comprehensive

review—An Evaluation Report on Protecting Child Safety – Reuni ication and

Permanency.22 Thus, the Committee would not have been in a position to

discern whether it needed access to the con idential iles in order to determine

whether to fully endorse, endorse in part, or withhold endorsement of the

reports or propose legislation based on them. The judgment therefore should

be af irmed on these grounds rather than those set forth in the Court’s opinion.

22 The record does not show that these items were not yet received at the time of the Committee’s

subpoena and motion to compel. However, OPEGA’s February 2024 Information Brief on Child Protective Services Reuni ication con irms that the Committee had not yet received these items at the time of its subpoena and motion. See Information Brief – Child Protective Services Reuni ication 1 (Feb. 2024). A court may take judicial notice of facts when the accuracy of the source cannot reasonably be questioned. See M.R. Evid. 201(b). We have long held that we may take judicial notice of facts on appeal. See, e.g., Nader v. Me. Democratic Party, 2013 ME 51,¶ 20 n.10, 66 A.3d 571 (“[W]e may take judicial notice.”); State v. Moulton, 1997 ME 228, ¶ 17, 704 A.2d 361 (“We may take judicial notice on appeal.”); First Nat’l Bank of Bost. v. Me. Tpk. Auth., 136 A.2d 699, 714 (Me. 1957) (“We may take judicial notice of [this] fact.”); Goodwin v. Small, 43 A. 507, 507 (Me. 1899), (“[W]e may take judicial notice of the fact.”). The accuracy of the timeline provided by OPEGA’s Information Brief cannot reasonably be questioned, and therefore we may take judicial notice of the timeline regarding OPEGA's inal report and the four evaluations. 38

[¶62] Accordingly, although I af irm the denial of the request to compel

compliance with the subpoena at issue here, I do not believe that this ruling

precludes the future issuance of a subpoena for the con idential child protection

records or, if necessary, the iling of a motion to compel compliance with such a

subpoena, so long as the Committee is taking such action in order to review and

determine whether it endorses the OPEGA reports and to determine what, if

any, legislation to propose to implement OPEGA’s indings and

recommendations. Despite the circuitous nature of the authority to access

con idential information fashioned by the Legislature at issue here, the

Committee nonetheless has that authority and may bring it to bear in

appropriate circumstances.23

Joshua D. Dunlap, Esq. (orally), Pierce Atwood LLP, Portland, for appellant Government Oversight Committee

Thomas A. Knowlton, Deputy Attorney General, Ariel Piers-Gamble, Asst. Atty. Gen., and Hunter C. Umphrey, Asst. Atty. Gen. (orally), Of ice of the Attorney General, Bangor, for appellee Department of Health and Human Services

Kennebec County Superior Court docket number CV-2022-163 FOR CLERK REFERENCE ONLY

23Given the gulf between the views on this point expressed in the Court’s opinion and this concurrence, the Legislature may well want to consider clarifying the scope of the Committee’s authority to access con idential information in these circumstances.