Information session held on LD 127 as analysts and sponsor weigh confidentiality and legislative access
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Summary
Committee received a legal briefing on LD 127, which would alter legislative access to confidential OPEGA/OPAGA working papers and records; the analyst reviewed statutory history, AG opinions, a 2024 Law Court decision, and constitutional protections that limit enforceability of nondisclosure agreements against legislators. The committee asked the sponsor to draft a narrowed amendment.
The Judiciary Committee convened an informational work session on LD 127, a proposal described by the sponsor as an effort to strengthen legislative oversight by clarifying the Legislature’s access to confidential records.
Analyst Eli Murphy walked members through the statutory framework that governs the Office of Program Evaluation and Government Accountability (OPEGA/OPAGA) and the Government Oversight Committee (GOC). He cited statutory provisions that permit OPEGA staff to access privileged or confidential records for program evaluations while keeping those working papers confidential and exempt from public disclosure under title 1, chapter 13. Murphy said working papers include drafts, intra- and interagency communications and electronic messages.
Murphy reviewed attorney-general memos and formal opinions (2005 guidance and an AG opinion addressing OPEGA access to child-protective records), and he summarized a 2024 Law Court opinion (Government Oversight Committee v. Department of Health and Human Services, 2024) that distinguished GOC’s role from OPEGA’s and found nothing in section 994 authorizing the committee to conduct independent investigations or to access OPEGA’s working files in the way OPEGA staff do.
Members asked targeted questions about: how OPEGA obtains signed releases from agencies (Murphy said OPEGA signs separate agreements for staff access), whether working papers can contain highly sensitive material such as images of abused children (Murphy said such content may be part of working papers in an evaluation), and whether nondisclosure agreements signed by OPEGA staff would be enforceable against legislators (Murphy explained strong constitutional protections for legislators — including the speech and debate clause — and Maine Tort Claims Act immunity mean enforcement may be limited).
Senator Craig Hickman, sponsor of LD 127, joined the committee, said he had been given new material at the session, and agreed to work with the analyst and return with a narrowed amendment; the committee asked the sponsor to provide a drafted amendment for posting before a subsequent work session.
Chair Anne Carney asked that the sponsor and the analyst post a drafted amendment for public notice so members and the public can review it prior to the next meeting.