The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6735

October 14, 1992

CORRECTIONS, DEPARTMENT OF:

Lack of access of Office of Legislative Corrections Ombudsman to Mortality Review Committee reports

The Legislature has provided that the Office of Legislative Corrections Ombudsman may not have access to the Mortality Review Committee reports prepared within the Bureau of Health Care Services of the Michigan Department of Corrections.

Honorable Jack Welborn

State Senator

The Capitol

Lansing, MI

You have asked whether the Office of Legislative Corrections Ombudsman is entitled to have access to the Mortality Review Committee reports prepared within the Bureau of Health Care Services of the Michigan Department of Corrections.

1975 PA 46, MCL 4.351 et seq; MSA 2.139(1) et seq, created the Office of Legislative Corrections Ombudsman in the Legislative Council, section 2(1), to investigate administrative acts in the Department of Corrections which are "alleged to be contrary to law, contrary to departmental policy, unaccompanied by an adequate statement of reason, or based on irrelevant, immaterial or erroneous grounds." Section 4(1). Upon request of the Ombudsman, the Department of Corrections is required to provide access to records and documents of the Department and to assist the Ombudsman in obtaining necessary releases of documents which are "specifically restricted or privileged." Section 5(1). The Office was established to provide an alternative grievance procedure for prisoners in the Michigan penal system. Senate Legislative Analysis, SB 234, April 9, 1975.

The Mortality Review Committee was established by 1967 PA 270, MCL 331.531 et seq; MSA 14.57(21) et seq, as a part of the quality assurance programs of the Department. It prepares peer review reports dealing with the medical aspects of the death of prisoners.

As originally enacted, 1967 PA 270 permitted the release of reports of any in-hospital medical staff committee as to the condition and treatment of any person to advance medical research or medical education in reducing morbidity or mortality. It also provided that a summary of those reports could be released for general publication, provided that the identity of the person whose condition or treatment was studied be kept confidential.

1967 PA 270, MCL 331.532; MSA 14.57(22), was amended by 1975 PA 119. Section 2 was amended to provide:

The release or publication of the proceedings, reports, findings, and conclusions of any review entity shall be for 1 or more of the following purposes:

(a) To advance health care research or health care education.

(b) To maintain the standards of the health care professions.

(c) To protect the financial integrity of any governmentally funded program.

(d) To provide evidence relating to the ethics or discipline of any individual or entity engaged in the practice of medicine or health care. (1)

Section 3 of 1967 PA 270 was amended by 1975 PA 119 to provide:

The identity of any person whose condition or treatment has been studied shall be confidential and such person's name and address shall be removed from the record before the review entity releases or publishes it [sic] proceedings, reports, findings and conclusions, and, except for the purposes set forth in section 2, all proceedings, reports, findings and conclusions of review entities under this act are confidential and shall not be discoverable or used as evidence in an action for personal injuries based upon malpractice, lack of informed consent or negligence. [ Emphasis added.]

Pursuant to this provision, the Legislature has made the reports, findings and conclusions of review entities "confidential" and disclosed only for those purposes specifically identified in section 2 of the act. Furthermore, even in those instances where disclosure of the findings and conclusions of the review entity would arguably serve one of the four purposes described in section 2, the disclosure of these materials by the review entity "is clearly discretionary...." Attorney General v Bruce, 422 Mich 157, 172; 369 NW2d 826 (1985). "The act does not provide authority for the proposition that disclosure ... is mandatory." Id.

It is significant that in 1975 the Legislature also enacted 1975 PA 46, establishing the Office of Legislative Corrections Ombudsman and prescribing its duties. Thus, the Legislature was fully aware of the scope of duties of the Office of Legislative Ombudsman when it later enacted the explicit limitations upon release of peer review committee reports. See Reichert v Peoples State Bank for Savings, 265 Mich 668, 672; 252 NW 484 (1934).

Since the Office of Legislative Corrections Ombudsman is not an entity authorized by law to perform any of the functions described in section 2 of 1967 PA 270, supra, the reports of the Mortality Review Committee of the Department of Corrections may not be made available to the Office of Legislative Corrections Ombudsman.

This conclusion is reinforced by section 5(1) of 1975 PA 46, supra, which created and defined the powers of the Office of Legislative Corrections Ombudsman. While generally requiring the Department of Corrections to provide the Ombudsman with access to its records, section 5(1) goes on to provide that the Department must also "assist the ombudsman in obtaining the necessary releases of those documents which are specifically restricted or privileged." The latter provision constitutes a clear recognition that documents which are otherwise privileged from disclosure retain their privilege and cannot be disclosed even to the Ombudsman unless and until the privilege is waived or released. Thus, while the Department is charged with assisting the Ombudsman in obtaining the necessary releases, if available, the act certainly cannot be read as creating a general waiver of privilege in favor of the Ombudsman.

It is my opinion, therefore, that the Legislature has provided that the Office of Legislative Corrections Ombudsman may not have access to the Mortality Review Committee reports prepared within the Bureau of Health Care Services of the Michigan Department of Corrections.

Frank J. Kelley

Attorney General

(1 Section 2 was later amended by 1980 PA 3 in ways that are not relevant here)