HB-6397, As Passed Senate, December 20, 2018
SUBSTITUTE FOR
HOUSE BILL NO. 6397
A bill to amend 1975 PA 46, entitled
"An act to create the office of the legislative corrections
ombudsman; to prescribe the powers and duties of the office, the
ombudsman, the legislative council, and the department of
corrections; and to provide remedies from administrative acts,"
by amending sections 4, 5, 8, 9, and 13 (MCL 4.354, 4.355, 4.358,
4.359, and 4.363), sections 4 and 13 as amended by 1998 PA 318,
section 5 as amended by 2010 PA 287, and section 9 as amended by
1995 PA 197.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 4. (1) The ombudsman may commence an investigation upon
either of the following:
(a) Receipt of a complaint from a prisoner, a legislator, or
on the ombudsman's own initiative, concerning an administrative act
which that is alleged by a prisoner to be contrary to law or
contrary to departmental policy.
(b) The ombudsman's own initiative for significant prisoner
health and safety issues, correctional facility security, and
public safety, and other matters for which there is no effective
administrative remedy.
(2) Subject to approval of the council, the ombudsman shall
establish procedures for receiving and processing complaints,
conducting investigations, holding hearings, and reporting the
findings resulting from the investigations.
Sec. 5. (1) Upon request and without the requirement of any
release, the ombudsman shall be given access to and physical or
electronic copies of all information, records, and documents in the
possession of the department which that the ombudsman deems
considers necessary in an investigation, including, but not limited
to, prisoner medical health records, prisoner mental health
records, and prisoner mortality and morbidity records. Upon
request, the ombudsman may interview any of the following
individuals whom the ombudsman considers necessary in an
investigation:
(a) An individual employed by or retained under contract by
the department.
(b) An individual employed by or retained under contract by a
private contractor that operates a facility or institution that
houses prisoners under the jurisdiction of the department.
(2) Upon request and without notice, the ombudsman shall must
be granted entrance to inspect at any time any premises under the
control of the department. One ombudsman staff person must also be
granted entry into a correctional facility or the department's
"think tank" or "command center" during emergency situations
including, but not limited to, correctional facility disturbances,
riots, and hostage incidents, and must be provided with updates
regarding the status of the emergent situation as well as the
department's efforts to address the situation. The ombudsman staff
person granted entry for an emergency situation under this
subsection is present for observation and to report on the
emergency situation.
(3) The ombudsman may hold informal hearings and may request
that any person appear before the ombudsman, or at a hearing, and
give testimony or produce documentary or other evidence which that
the ombudsman deems considers relevant to a matter under
investigation.
(4) The ombudsman shall arrange an interview under subsection
(1) in cooperation with the department at a time and location that
does not interfere with the operation of a correctional facility.
Sec. 8. Upon request of the ombudsman, the council may hold a
hearing. The council may administer oaths, subpoena witnesses, and
examine the books and records of the department or of a person,
partnership, or corporation involved, in accordance with section 4
of Act No. 412 of the Public Acts of 1965, being section 4.314 of
the Michigan Compiled Laws, 104 of the legislative council act,
1986 PA 268, MCL 4.1104, in a matter which that is or was a proper
subject of investigation by the ombudsman under this act.
Sec. 9. (1) Correspondence between the ombudsman and a
prisoner is confidential and shall must be processed as privileged
House Bill No. 6397 as amended December 20, 2018
correspondence in the same manner as letters between prisoners and
courts, attorneys, or public officials.
(2) The ombudsman shall maintain secrecy with respect to all
matters and the identities of the complainants or persons from whom
information is acquired, except so far as disclosures may be
necessary to enable the ombudsman to perform the duties of the
office and to support any recommendations resulting from an
investigation. A record of or information obtained or created by
the ombudsman is confidential, is considered privileged, must only
be used for purposes set forth in this act, is not subject to court
subpoena, and is not discoverable in a legal proceeding. A record
of or information obtained by the ombudsman that is otherwise
available from other sources is not exempt from court subpoena or
discovery from other sources solely because it was presented to or
reviewed by the ombudsman.
(3) A report prepared and recommendations made by the
ombudsman and submitted to the council under section 10 are exempt
from disclosure under the freedom of information act, Act No. 442
of the Public Acts of 1976, being sections 15.231 to 15.246 of the
Michigan Compiled Laws.All of the following are exempt from
disclosure under the freedom of information act, 1976 PA 442, MCL
15.231 to 15.246:
(a) A record of the ombudsman.
(b) A report or recommendations made by the ombudsman and
submitted to the council under section 10.
(c) Information obtained or created by the ombudsman.
Sec. 13. (1) A prisoner shall << >> must
House Bill No. 6397 as amended December 20, 2018
not be penalized in any way by an official or the department as a
result of filing a complaint, complaining to a legislator, or
cooperating with the ombudsman in investigating a complaint.
(2) A person or the department shall not hinder the lawful
actions of the ombudsman or employees of the office, or willfully
refuse to comply with lawful demands of the office.
<<(3) The department shall not take disciplinary action against an employee for communicating with the ombudsman.>>