22 M.R.S.A. § 4008
Maine Revised Statutes Annotated Currentness
Title 22. Health and Welfare
Subtitle 3. Income Supplementation
Part 3. Children
Chapter 1071. Child and Family Services and Child Protection Act
Subchapter 1. General Provisions

§ 4008. Records; confidentiality; disclosure

1. Confidentiality 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 confidential and subject to release only under the conditions of subsections 2 and 3.

Within the department, the records are available only to and may be used only by appropriate departmental personnel and legal counsel for the department in carrying out their functions.

Any person who receives department records or information from the department may use the records or information only for the purposes for which that release was intended.

2. Optional disclosure of records. The department may disclose relevant information in the records to the following persons:

A. An agency or person investigating or participating on a team investigating a report of child abuse or neglect when the investigation or participation is authorized by law or by an agreement with the department;

A-1. A law enforcement agency, to the extent necessary for reporting, investigating and prosecuting an alleged crime, the victim of which is a department employee, an employee of the Attorney General's Office, an employee of any court or court system, a person mandated to report suspected abuse or neglect, a person who has made a report to the department, a person who has provided information to the department or an attorney, guardian ad litem, party, participant, witness or prospective witness in a child protection proceeding;

B. Repealed. Laws 1983, c. 327, § 3.

C. A physician treating a child whom he reasonably suspects may be abused or neglected;

D. A child named in a record who is reported to be abused or neglected, or the child's parent or custodian, or the subject of the report, with protection for identity of reporters and other persons when appropriate;

D-1. A parent, custodian or caretaker of a child when the department believes the child may be at risk of harm from the person who is the subject of the records or information, with protection for identity of reporters and other persons when appropriate;

D-2. A party to a child protection proceeding, when the records or information is relevant to the proceeding, with protection for identity of reporters and other persons when appropriate;

E. A person having the legal responsibility or authorization to evaluate, treat, educate, care for or supervise a child, parent or custodian who is the subject of a record, or a member of a panel appointed by the department to review child deaths and serious injuries, or a member of the Domestic Abuse Homicide Review Panel established under Title 19-A, section 4013, subsection 4. This includes a member of a treatment team or group convened to plan for or treat a child or family that is the subject of a record. This may also include a member of a support team for foster parents, if that team has been reviewed and approved by the department;

E-1. Repealed. Laws 2007, c. 371, § 3.

F. Any person engaged in bona fide research, provided that no personally identifying information is made available, unless it is essential to the researcher and the commissioner or the commissioner's designee gives prior approval. If the researcher desires to contact a subject of a record, the subject's consent shall be obtained by the department prior to the contact;

G. Any agency or department involved in licensing or approving homes for, or the placement of, children or dependent adults, with protection for identity of reporters and other persons when appropriate;

H. Persons and organizations pursuant to Title 5, section 9057, subsection 6, and pursuant to chapter 857;

I. The representative designated to provide child welfare services by the tribe of an Indian child as defined by the federal Indian Child Welfare Act, 25 United States Code, Section 1903, or a representative designated to provide child welfare services by an Indian tribe of Canada;

J. A person making a report of suspected abuse or neglect. The department may only disclose that it has not accepted the report for investigation, unless other disclosure provisions of this section apply; and

K. The local animal control officer or the animal welfare program of the Department of Agriculture, Food and Rural Resources established pursuant to Title 7, section 3902 when there is a reasonable suspicion of animal cruelty, abuse or neglect. For purposes of this paragraph, "cruelty, abuse or neglect" has the same meaning as provided in Title 34-B, section 1901, subsection 1, paragraph B.

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

A. The guardian ad litem of a child, appointed pursuant to section 4005, subsection 1;

A-1. The court-appointed guardian ad litem or attorney of a child who is the subject of a court proceeding involving parental rights and responsibilities, grandparent visitation, custody, guardianship or involuntary commitment. The access of the guardian ad litem or attorney to the records or information under this paragraph is limited to reviewing the records in the offices of the department. Any other use of the information or records during the proceeding in which the guardian ad litem or attorney is appointed is governed by paragraph B;

B. A court on its finding that access to those records may be necessary for the determination of any issue before the court or a court requesting a home study from the department pursuant to Title 18-A, section 9-304 or Title 19-A, section 905. Access to such a report or record is limited to counsel of record unless otherwise ordered by the court. Access to actual reports or records is limited to in camera inspection, unless the court determines that public disclosure of the information is necessary for the resolution of an issue pending before the court;

C. A grand jury on its determination that access to those records is necessary in the conduct of its official business;

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

E. The protection and advocacy agency for persons with disabilities, as designated pursuant to Title 5, section 19502, in connection with investigations conducted in accordance with Title 5, chapter 511. The determination of what information and records are relevant to the investigation must be made by agreement between the department and the agency;

F. The Commissioner of Education when the information concerns teachers and other professional personnel issued certificates under Title 20-A, persons employed by schools approved pursuant to Title 20-A or any employees of schools operated by the Department of Education;

G. The prospective adoptive parents. Prior to a child being placed for the purpose of adoption, the department shall comply with the requirements of Title 18-A, section 9-304, subsection (b) and section 8205;

H. Upon written request, a person having the legal authorization to evaluate or treat a child, parent or custodian who is the subject of a record. This includes a member of a treatment team or group convened to plan for or treat a child or family that is the subject of a record;

I. Any government entity that needs such information in order to carry out its responsibilities under law to protect children from abuse and neglect. For purposes of this paragraph, "government entity" means a federal entity, a state entity of any state, a local government entity of any state or locality or an agent of a federal, state or local government entity;

J. To a juvenile court when the child who is the subject of the records has been brought before the court pursuant to Title 15, Part 6; and

K. A relative or other person whom the department is investigating for possible custody or placement of the child.

3-A. Confidentiality. The proceedings and records of the child death and serious injury review panel created in accordance with section 4004, subsection 1, paragraph E are confidential and are not subject to subpoena, discovery or introduction into evidence in a civil or criminal action. The commissioner shall disclose conclusions of the review panel upon request, but may not disclose data that is otherwise classified as confidential.

4. Unlawful dissemination; penalty. A person is guilty of unlawful dissemination if he knowingly disseminates records which are determined confidential by this section, in violation of the mandatory or optional disclosure provisions of this section. Unlawful dissemination is a Class E crime, which, notwithstanding Title 17-A, section 1252, subsection 2, paragraph E, is punishable by a fine of not more than $500 or by imprisonment for not more than 30 days.

5. Retention of unsubstantiated child protection services records. Except as provided in this subsection, the department shall retain unsubstantiated child protective services case records for no more than 18 months following a finding of unsubstantiation and then expunge unsubstantiated case records from all departmental files or archives unless a new referral has been received within the 18-month retention period. Unsubstantiated child protective services records of persons who were eligible for Medicaid services under the federal Social Security Act, Title XIX, at the time of the investigation may be retained for up to 5 years for the sole purpose of state and federal audits of the Medicaid program. Unsubstantiated child protective services case records retained for audit purposes pursuant to this subsection must be stored separately from other child protective services records and may not be used for any other purpose.

6. Requests for disclosure of records; establishment of fees; rules. The department may accept requests and charge fees for research and disclosure of its records as provided in this subsection.

A. The department may charge fees for the services listed in paragraph B to any person except the following:

(1) A parent in a child protection proceeding, an attorney who represents a parent in a child protection proceeding or a guardian ad litem in a child protection proceeding when the parent, attorney or guardian ad litem requests the service for the purposes of the child protection proceeding;

(2) An adoptive parent or prospective adoptive parent who requests records relating to the child who has been or might be adopted;

(3) A person having the legal authorization to evaluate or treat a child, parent or custodian who is the subject of a record, including a member of a treatment team or group convened to plan for or treat a child or family that is the subject of a record; the record must be requested for the purpose of evaluating or treating the child, parent or custodian who is the subject of the record;

(4) Governmental entities of this State that are not engaged in licensing; and

(5) Governmental entities of any county or municipality of this State that are not engaged in licensing.

A request or order by a court for disclosure of records pursuant to subsection 3, paragraph B must be deemed to have been made by the person requesting that the court order the disclosure.

B. The department may charge fees for the following services:

(1) Researching its records to determine whether a particular person is named in the records;

(2) Receiving and responding to a request for disclosure of department records, whether or not the department grants the request; and

(3) Disclosing department records.

C. The department may adopt rules governing requests for the services listed in paragraph B. Those rules may provide for a mechanism for making a request, the information required in making a request, the circumstances under which requests will be granted or denied and any other matter that the department determines necessary to efficiently respond to requests for disclosure of records. Rules adopted pursuant to this paragraph are routine technical rules pursuant to Title 5, chapter 375, subchapter 2-A.

D. The department shall establish a schedule of fees by rule. The schedule of fees may provide that certain classes of persons are exempt from the fees, and it may establish different fees for different classes of persons. All fees collected by the department must be deposited in the General Fund. Rules adopted pursuant to this paragraph are routine technical rules pursuant to Title 5, chapter 375, subchapter 2-A.

E. A governmental entity that is engaged in licensing may charge an applicant for the fees imposed on it by the department for research and disclosure of records.

F. This subsection may not be construed to permit or require the department to make a disclosure in any particular case.

CREDIT(S)

1979, c. 733, § 18; 1983, c. 327, §§ 3 to 5; 1983, c. 354, §§ 1, 2; 1983, c. 470, §§ 12, 13, eff. June 17, 1983; 1983, c. 783, § 4; 1985, c. 495, § 18; 1985, c. 506, §§ A, 43 to 45, eff. July 2, 1985; 1985, c. 739, §§ 5, 6, eff. April 18, 1986; 1987, c. 511, § A, 3, eff. July 1, 1987; 1987, c. 511, § B, 1, eff. July 1, 1987; 1987, c. 714, §§ 5 to 7; 1987, c. 744, §§ 3 to 7; 1989, c. 118; 1989, c. 270, §§ 2 to 5; 1989, c. 483, § A, 33, eff. June 27, 1989; 1989, c. 502, §§ A, 76, 77, D, 18, eff. June 30, 1989; 1989, c. 700, § A-89; 1989, c. 857, § 58, eff. July 1, 1990; 1989, c. 878, §§ A-62, A-63, eff. April 20, 1990; 1991, c. 630, §§ 2 to 4; 1993, c. 294, §§ 3, 4; 1993, c. 686, § 8; 1995, c. 391, § 2; 1995, c. 694, §§ D-38, D-39, eff. Oct. 1, 1997; 2001, c. 439, § X-2; 2001, c. 696, §§ 17 to 20; 2003, c. 673, § W-1; 2003, c. 673, §§ Z-2 to Z-4; 2005, c. 300, §§ 2 to 9; 2007, c. 140, §§ 5 to 7; 2007, c. 335, §§ 1 to 3, eff. March 1, 2008; 2007, c. 371, §§ 3 to 6; 2007, c. 485, §§ 1, 2, eff. March 1, 2008; 2009, c. 38, § 1.

[FN1] 22 M.R.S.A. § 3291 et seq.

[FN2] 25 U.S.C.A. § 1903.

[FN3] 5 M.R.S.A. § 19501 et seq.

[FN4] 42 U.S.C.A. § 1396 et seq.

HISTORICAL AND STATUTORY NOTES

2004 Main Volume

Laws 1983, c. 327, § 3, in subsec. 2, repealed par. B, which prior thereto read:

"An advocacy agency conducting an investigation under chapter 961;"

Laws 1983, c. 327, §§ 4, 5, among other changes, in subsec. 3, added par. E.

Laws 1983, c. 354, §§ 1, 2, among other changes, added subsec. 6.

Laws 1983, c. 470, §§ 12, 13, among other changes, in subsec. 3, added par. E, without reference to amendment by Laws 1983, c. 327, §§ 4, 5.

Laws 1983, c. 506, § A, 45, reallocated subsec. 3, par. E, as added by Laws 1983, c. 470, § 13, as par. F.

Laws 1985, c. 495, § 18, in subsec. 3, par. B, in first sentence, added "or a court requesting a report from the department pursuant to Title 19, section 533 or 751", inserted 2nd sentence, and, in 3rd sentence, inserted "to actual records".

Laws 1985, c. 506, §§ A, 43, 44, among other changes, repealed and replaced subsec. 3, par. E, as added by Laws 1983, c. 327, § 5, and Laws 1983, c. 470, § 13, which in effect adopted text as enacted by Laws 1983, c. 327, § 5.

Laws 1985, c. 739, § 5, in subsec. B, in the second sentence, inserted "or record"; and, in the third sentence, inserted "reports or".

Laws 1985, c. 739, § 6, added subsec. 5.

Laws 1987, c. 511, § A, 3, in par. D of subsec. 3, inserted "or the Child Welfare Services Ombudsman".

Laws 1987, c. 511, § B, 1, repealed and replaced par. A of subsec. 2, which prior thereto read:

"An agency investigating a report of child abuse or neglect when the investigation is authorized by statute or by an agreement with the department;"

Laws 1987, c. 714, §§ 5 to 7, in subsec. 2, among other changes, added par. H.

Laws 1987, c. 744, §§ 3 to 7, without reference to Laws 1987, c. 714, in subsec. 2, in par. D, substituted "the child's" for "his", and inserted "or the subject of the report,"; in par. F, substituted "the commissioner's" for "his"; in par. G, inserted "or department", "licensing or", ", or" and "or dependent adults", and added par. H; in par. F of subsec. 3, in the first sentence, inserted "persons employed by schools approved pursuant to Title 20-A or any employees of schools operated by the Department of Educational and Cultural Services," and added the second sentence.

Laws 1989, c. 118, in subsec. 2, par. E, provided that the department may disclose relevant information to a member of a support team for foster parents, if the department has reviewed and approved such team.

Laws 1989, c. 270, § 2, repealed and replaced subsec. 2, par. F, consolidating effect of amendments by Laws 1987, c. 714, § 5 and Laws 1987, c. 744, § 4, without making further changes.

Laws 1989, c. 270, § 3, repealed and replaced subsec. 2, par. G, consolidating effect of amendments by Laws 1987, c. 714, § 6 and Laws 1987, c. 744, § 5, without making further changes.

Laws 1989, c. 270, § 4, repealed and replaced subsec. 2, par. H, reenacting par. H as added by Laws 1989, c. 714, § 7, and omitting par. H as added by Laws 1989, c. 744, § 6, which related to disclosure to the representative of an Indian child.

Laws 1989, c. 270, § 5, in subsec. 2, enacted pars. I and J.

Laws 1989, c. 483, § A, 33, in subsec. 3, par. F, substituted reference to when the information, for reference to where the information, and deleted provision providing for repeal of paragraph in June, 1990, pending review by joint standing committee.

Laws 1989 c. 502, § A, 76, without incorporating changes made by Laws 1989, c. 502, § A, 76, repealed and replaced subsec. 2, par. H, to consolidate the effect of enactment of subsec. 2, par. H, by Laws 1987, c. 714, § 7, and Laws 1987, c. 744, § 6, which, in effect, adopted the text enacted by Laws 1987, c. 714, § 7.

Laws 1989, c. 502, § A, 77, without incorporating changes made by Laws 1989, c. 270, § 5, added subsec. 2, par. I, which, in effect, carried on the version of subsec. 2, par. H, enacted by Laws 1987, c. 744, § 6.

Laws 1989, c. 502, § D, 18, in subsec. 4, substituted reference to § 1252, subsec. 2, par. E, of title 17-A for reference to § 4-A, subsec. 4, of title 17-A.

Laws 1989, c. 700, § A-89, in subsec. 3, par. F, substituted reference to the Department of Education for Department of Educational and Cultural Services, and reference to the Commissioner of Education for Commissioner of Educational and Cultural Services.

Laws 1989, c. 857, § 58, in subsec. 5, added exceptions allowing the retention of records for up to 5 years for Medicaid audits.

Laws 1989, c. 878, § A-62, repealed and replaced subsec. 2, par. H, to consolidate the effect of changes by Laws 1989, c. 270, § 4, and Laws 1989, c. 502, § A, 76.

Laws 1989, c. 878, § A-63, repealed and replaced subsec. 2, par. I, to consolidate the effect of changes by Laws 1989, c. 270, § 5, and Laws 1989, c. 502, § A, 77.

Laws 1991, c. 630, § 2, in subsec. 3, par. E, substituted reference to protection and advocacy agency for persons with disabilities, as designated pursuant to § 19502 of title 5 for reference to the Protection and Advocacy Agency for the Developmentally Disabled in Maine and substituted reference to chapter 511 of title 5 for reference to chapter 961.

Laws 1991, c. 630. § 3, in subsec. 3, par. F, made a technical correction, inserting "The Commissioner of Education" to precede "when the information concerns teachers" and deleting "the information shall be disclosed to the Commissioner of Education" following "Department of Education".

Laws 1991, c. 630, § 4, added subsec. 3, par. G.

Laws 1993, c. 294, § 3, in subsec. 2, par. E, added reference to panel members who review child deaths and serious injuries.

Laws 1993, c. 294, § 4, added subsec. 3-A.

Laws 1993, c. 686, § 8, in subsec. 3, par. B, substituted "home study" for "report", "section 751 or 1125" for "533 or 751", and "is" for "shall be".

Laws 1993, c. 686, § 13, provided:

"This Act takes effect August 1, 1994 and applies to petitions filed on or after that date."

Laws 1995, c. 391, § 2, in subsec. 3, par. G, substituted provision requiring the department to comply with the requirements of subsec. 2 of 19 M.R.S.A. § 1125 and § 8205, for provision requiring full disclosure by the department of available information regarding the child's medical, genetic background and available background or history related to abuse.

Laws 1995, c. 694, § D-38, in subsec. 3, par. B, substituted reference to 19-A M.R.S.A. § 905, for reference to 19 M.R.S.A. §§ 751 or 1125 and added reference to 18-A M.R.S.A. § 9-304.

Laws 1995, c. 694, § D-39, in subsec. 3, par. G, substituted reference to 18-A M.R.S.A. § 9-304, subsec. (b), for reference to 19 M.R.S.A. § 1125, subsec. (2).

Laws 1995, c. 694, § E-1, eff. Oct. 1, 1997, provided:

"This Act contains the following policy changes.

"1. It resolves ambiguities related to marriage licenses and the authority of the State Registrar of Vital Statistics in the Maine Revised Statutes, Title 19-A, chapter 23.

"2. It revises the divorce laws to prohibit divorce on the basis of fraud rather than collusion in Title 19-A, chapter 29.

"3. It extends the provisions covering domestic abuse to all proceedings that award or allocate parental rights and responsibilities, rather than limiting those provisions to divorce in Title 19-A, chapter 55.

"4. It revises the provisions covering the crimes of cruelty to children and abandonment of children and places those crimes in the Maine Criminal Code in Part C.

"5. It creates the Family Law Advisory Commission.

"6. It revises the waiver requirements for putative fathers and legal fathers under the adoption laws, Title 18-A, Article IX, Part 2. A 'putative father' is a person alleged to be the father of a child.

"7. It revises consideration of 'abandonment of the family residence' in the context of determining parental rights and responsibilities.

"8. It requires that all awards of past child support be calculated using the child support guidelines, overruling White v. Allen, 667 A.2d 112 (Me. 1995)."

Laws 2001, c. 439, § X-2, in subsec. 3, par. D, deleted "or the Child Welfare Services Ombudsman in carrying out his official functions" following "services", and substituted "that official's" for "his".

Laws 2001, c. 696, § 17, in subsec. 2, par. E, in the first sentence, deleted ", evaluate, treat" following "educate, care for".

Laws 2001, c. 696, § 18, in subsec. 3, par. F, made nonsubstantive changes.

Laws 2001, c. 696, § 19, in subsec. 3, par. G, made nonsubstantive changes.

Laws 2001, c. 696, § 20, in subsec. 3, added paragraph H.

Derivation:
Laws 1975, c. 167, § 2.
Laws 1977, c. 511, § 9.
Laws 1979, c. 733, § 15.
Former 22 M.R.S.A. § 3859.

2010 Electronic Update                                                          

2003 Legislation

Laws 2003, c. 673, § W-1, added subsec. 6.

Laws 2003, c. 673, § Z-2, in subsec. 3, par. G, made a nonsubstantive change.

Laws 2003, c. 673, § Z-3, in subsec. 3, par. H, made a nonsubstantive change.

Laws 2003, c. 673, § Z-4, in subsec. 3, added pars. I and J.

2005 Legislation

Laws 2005, c. 300, § 2 rewrote subsec. 1, which read:

"1. Confidentiality of records. All department records which 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 are confidential and subject to release only under the conditions of subsections 2 and 3. Within the department, the records shall be available only to and used by appropriate departmental personnel and legal counsel for the department in carrying out their functions."

Laws 2005, c. 300, § 3, in subsec. 2, inserted par. A-1.

Laws 2005, c. 300, § 4, in subsec. 2, inserted pars. D-1 and D-2.

Laws 2005, c. 300, § 5, in subsec. 2, par. E, first sentence, inserted "evaluate, treat" and added ", or a member of the Domestic Abuse Homicide Review Panel established under Title 19-A, section 4013, subsection 4".

Laws 2005, c. 300, § 6, in subsec. 2, inserted par. E-1.

Laws 2005, c. 300, § 7, in subsec. 2, par. I, added ", or a representative designated to provide child welfare services by an Indian tribe of Canada".

Laws 2005, c. 300, § 8, in subsec. 3, rewrote par. A, which read:

"A. The guardian ad litem of a child named in a record who is reported to be abused or neglected;"

Laws 2005, c. 300, § 9, in subsec. 3, inserted par. A-1.

2007 Legislation

Laws 2007, c. 140, § 5, in subsec. 2, at the end of par. I, deleted "and".

Laws 2007, c. 140, § 6, in subsec. 2, at the end of par. J, substituted "; and" for a period.

Laws 2007, c. 140, § 7, in subsec. 2, added par. K.

Laws 2007, c. 335, §§ 1, 2 and 3, as amended by Laws 2007, c. 473, § 1, which would have taken effect March 1, 2008, were repealed by Laws 2007, c. 485, § 2, effective March 1, 2008. Laws 2007, c. 335, section 1 had amended the third paragraph of subsec. 1, section 2 had added a par. A-2 in subsec. 3, and section 3 had added a subsec. 7.

Laws 2007, c. 335, § 5, as amended by Laws 2007, c. 473, § 1, provides:

"Sec. 5. Effective date. This Act takes effect March 1, 2008, except that section 4 of this Act, relating to the Maine State Plan, takes effect 90 days after adjournment of the First Regular Session of the 123rd Legislature."

Laws 2007, c. 371, § 3, in subsec. 2, repealed par. E-1, which formerly read:

"E-1. A relative or other person whom the department is investigating for possible custody or placement of the child;"

Laws 2007, c. 371, § 4, in subsec. 3, par. I, deleted "and" from the end thereof.

Laws 2007, c. 371, § 5, in subsec. 3, par. J, substituted "; and" for a period.

Laws 2007, c. 371, § 6, in subsec. 3, added par. K.

Laws 2007, c. 485, § 1, in subsec. 1, rewrote the third paragraph, which formerly read:

"Any person who receives department records or information from the department may use the records or information only for the purposes for which that release was intended. A person, including, but not limited to, a child, parent, custodian or subject of a record, may not further disseminate any record or information that person receives from the department unless the dissemination is otherwise allowed by law."

Laws 2007, c. 485, § 2, effective March 1, 2008, provides:

"Sec. 2. PL 2007, c. 335, §§ 1, 2 and 3, as affected by PL 2007, c. 473, § 1, are repealed."

2009 Legislation

Laws 2009, c. 38, § 1, in subsec. 3, in par. A-1, deleted ", visitor" following "guardian ad litem" throughout.

22 M. R. S. A. § 4008, ME ST T. 22 § 4008

Current with legislation through the 2009 Second Regular Session of the        
124th Legislature                                                              

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