(Drafted by Model Shield Law Committee Representing Various Ombudsman Organizations)
An Act to Establish an Ombudsman Privilege
Be it enacted by the Legislature of the State of ______________________________________.
Section I. Definition. For purposes of this Act, an ombudsman is defined as:
a. a person appointed under a federal or state statute or local ordinance creating an ombudsman’s office, who investigates complaints regarding governmental agencies, and their officials or employees, and who practices according to the law establishing the office; or
b. a person formally designated by a government body or a corporation as an impartial dispute resolution practitioner or complaint handler who functions independently of the officials or employees who are the subjects of complaints of disputes, who maintains confidentiality, who provides assistance in resolving complaints or disputes, and who practices according to the code of ethics or standards of practices of a professional ombudsman association.
Section 2. Neither the ombudsman nor a member of his/her staff shall be compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of their official duties. All related memoranda, work product, notes or case files or an ombudsman are confidential and are not subject to discovery, subpoena, or other means of legal compulsion, and are not admissible in evidence in a judicial or administrative proceeding.
Section 3. This Act shall become effective ________________________________________.
Section 3. Exceptions. The privilege described in this Act does not apply to information concerning:
a. a felony personally witnessed by the ombudsman or a member of his/her staff; or
b. imminent risk of serious harm to an individual {alternative: to public health or safety} which is communicated directly to the ombudsman or a member of his/her staff; or
c. the general operation of the ombudsman’s office and the general processes employed.
1. Ombudsman are designated to provide impartial dispute resolution assistance in a variety of. settings. They work in prisons, nursing homes, hospitals, corporations, newspapers, colleges and universities, federal, state and local governments, providing an alternate resource for individuals. Their purpose is to guard against abuses within systems and to develop fair solutions to a wide range of problems.
2. The ombudsman function fulfills all four of the traditional criteria for privilege communications:
a. The communication originates in the belief it will not be disclosed.
b. The inviolability of that confidence is essential to achieve the purpose of the relationship.
c. The relationship is one that society should foster.
d. The expected injury to the relationship through fear of later disclosures, is greater that the expected benefit to justice in obtaining later evidence.
3. Unlike other representatives, an ombudsman is likely to know the confidences of all parties.
4. Confidentiality of the ombudsman is consistent with now established non-discovery of settlement negotiations or mediation proceedings.
5. In other privileged relationships, the privilege belongs to the communicator. Because an ombudsman works with multiple parties, testimony on one issue may ombudsman works with multiple parties, testimony on one issue may compromise the individual. This is why the privilege must rest with the ombudsman.
6. The ombudsman works to protect the rights of everyone involved.
7. The ombudsman’s offer of confidentiality encourages individuals to come forward and report problems that they would otherwise be reluctant to reveal for fear of retaliation or retribution. This serves a vital public interest.
8. An ombudsman should not be drawn into an adversarial process. If this occurs, confidence in the ombudsman’s impartiality may be critically jeopardized.
9. An ombudsman is not a direct participant and is not necessary to achieving justice. Information is discoverable from sources with direct knowledge.
10. An ombudsman facilitates resolution to problems that individuals have been unable or unprepared to handle in other formal or non-confidential systems.
11. Use of an ombudsman does not preclude or jeopardize future use of other resources.
12. Each attempt to resist the subpoenaing of records and/or testimony costs time and money and disrupts an ombudsman’s ability to assist in the resolution of disputes.
13. The public interest is served by providing a dispute resolution alternative outside the legal system.
ABA and Section Membership information
For additional information on the Section, please contact Kristine Weiand at:
Phone: (202) 662-1528
Fax: (202) 662-1529
E-Mail: WeiandK@staff.abanet.org
ABA Section of Administrative Law & Regulatory Practice
740 15th Street NW
Washington, DC 20005-1022
E-Mail: adminlaw@abanet.org
