LEGISLATIVE CORRECTIONS OMBUDSMAN
House Bill 6397 (proposed substitute H-1)
Sponsor: Rep. John Bizon, M.D.
Committee: Law and Justice
Complete to 11-26-18
SUMMARY:
House Bill 6397 would clarify and, in some instances, expand the ability of the Legislative Corrections Ombudsman, or his or her staff, to initiate investigations, interview individuals in connection with an investigation, and access certain portions of a prison during an emergent event, such as a riot, and would strengthen FOIA protections. The bill would amend Public Act 46 of 1975, which created the Office of the Legislative Corrections Ombudsman within the Legislative Council and prescribes the powers and duties of the Ombudsman.
Commencing an investigation
Currently, the Ombudsman may commence an investigation upon either of the following:
· Receipt of a complaint from a prisoner, a legislator, or the Ombudsman’s own initiative concerning an administrative act alleged by a prisoner to be contrary to law or contrary to the Michigan Department of Correction’s policy.
The bill would delete the underlined text, thus eliminating the restriction that the allegation be made by the prisoner. Under the bill, the allegation could arise from a prisoner, a legislator, or the Ombudsman.
· The Ombudsman’s own initiative for significant prisoner health and safety issues and other matters for which there is no effective administrative remedy.
The bill would allow the Ombudsman to also initiate an investigation regarding correctional facility security and public safety.
Access to information
Currently, the act requires that, upon his or her request, the Ombudsman be given access to all information, records, and documents in the possession of the DOC that the Ombudsman deems necessary in an investigation. This includes such things as prisoner medical health records, mental health records, and mortality and morbidity records.
The bill would add to this that, upon request, the Ombudsman could interview any of the following he or she considered as necessary in an investigation:
· A DOC employee or an individual retained under contract by the DOC.
· An employee of, or individual retained under contract by, a private contractor operating a facility or institution housing prisoners who are under the jurisdiction of the DOC.
The Ombudsman would have to arrange an interview under this provision in cooperation with the DOC at a time and location that does not interfere with the operation of a correctional facility.
Access to prisons
Currently, the Ombudsman may—upon request and without notice—enter and inspect at any time any premises (e.g., prison or a reception center) under DOC control.
The bill would expand this provision to specify that one Ombudsman staff person would also have to be granted entry to a correctional facility or the DOC’s “think tank” or “command center” during emergency situations that would include, but not be limited to, correctional facility disturbances, riots, and hostage incidents, and be provided with status updates on the emergency situation as well as the DOC’s efforts to address the situation. The Ombudsman staff person granted entry for an emergency situation under this provision would be present for observation and to report on the emergency situation.
Confidentiality of records
Currently, correspondence between the Ombudsman and a prisoner is confidential and is processed in the same manner as letters between prisoners and courts, attorneys, or public officials. In addition, the Ombudsman must maintain secrecy with respect to all matters and the identities of the complainants or persons from whom information is acquired (an exception is made for a disclosure necessary for the Ombudsman to perform his or her duties).
Under the bill, all of the following would also apply to a record of, or information obtained or created by, the Ombudsman:
· It would be confidential.
· It would be considered privileged.
· It would only be used for purposes set forth in the act.
· It would not be subject to court subpoena.
· It would not be discoverable in a legal proceeding.
However, a record of, or information obtained by, the Ombudsman that is otherwise available from other sources would not be exempt from court subpoena or discovery from other sources solely because it was presented to or reviewed by the Ombudsman.
Further, a provision that exempts from disclosure under the Freedom of Information Act (FOIA) a report prepared and recommendations by the Ombudsman and submitted to the Legislative Council under requirements in Section 10 of the act would be eliminated. Instead, under the bill, all of the following would be exempt from disclosure under FOIA:
· A record of the Ombudsman.
· A report or recommendations made by the Ombudsman and submitted to the Legislative Council under Section 10.
· Information obtained or created by the Ombudsman.
Protection against retaliation
Current law prohibits a prisoner from being penalized in any way by an official or the DOC as a result of filing a complaint, complaining to a legislator, or cooperating with the Ombudsman in investigating a complaint. The bill would apply this protection also to an employee of the DOC.
MCL 4.354 et al.
FISCAL IMPACT:
The bill would have no direct fiscal impact on state or local government. If it were determined that the expanded investigatory abilities of the Legislative Corrections Ombudsman authorized under the bill resulted in additional investigations that increased Legislative Corrections Ombudsman costs beyond current appropriation levels, any additional funding would be subject to legislative appropriation.
Legislative Analyst: Susan Stutzky
Fiscal Analyst: Ben Gielczyk
■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.