21.2Access to Family Division Records and Confidential Files18
A.Access to Public Records
MCR 1.109(F) provides that “[r]equests for access to public court records shall be granted in accordance with MCR 8.119(H).” MCR 8.119(H) provides, in part:
“Except as otherwise provided in [MCR 8.119](F),[19] only case records as defined in [MCR 8.119](D)[20] are public records, subject to access in accordance with these rules.”21
Additionally, MCR 8.119(H)(7) provides that “[u]nless access to a case record or information contained in a record as defined in [MCR 8.119](D) is restricted by statute, court rule, or an order [sealing a record] pursuant to [MCR 8.119](I),[22] any person may inspect that record and may obtain copies as provided in [MCR 8.119](J).”23
MCR 8.119(G) provides, in part, that “[a]ll court records not included in [
MCL 712A.28(2) provides, in part:
“Beginning June 1, 1988, the [Family Division] shall maintain records of all cases brought before it and as provided in the juvenile diversion act[, MCL 722.821 et seq]. Except as otherwise provided in [MCL 712A.28(2)], records of a case brought before the [Family Division] shall be open to the general public.”24
MCL 712A.28(3) provides, in part:
“’Beginning January 1, 2021, except as otherwise provided, records of a case brought before the [Family Division] are not open to the general public and are open only to persons having a legitimate interest.”25
Similarly, MCR 3.925(D)(1) provides that “[r]ecords of a case brought before the court under . . . MCL 712A.1 et seq., are only open to persons having a legitimate interest. ‘Persons having a legitimate interest’ includes, but is not limited to, the juvenile, the juvenile’s parent, the juvenile’s guardian or legal custodian, the juvenile’s guardian ad litem, counsel for the juvenile, the department or a licensed child caring institution or child placing agency under contract with the department to provide for the juvenile’s care and supervision if related to an investigation of child neglect or child abuse, law enforcement personnel, a prosecutor, a member of a local foster care review board established under . . . MCL 722.131 to [MCL] 722.139a, the Indian child’s tribe if the juvenile is an Indian child, and a court of this state.”
Records created before June 1, 1988, are open only by court order to persons with a legitimate interest, “except that diversion records shall be open only as provided in the juvenile diversion act[, MCL 722.821 et seq].”26 MCL 712A.28(1).
B.Confidential Files
1.Definition of “Confidential File”
MCR 3.903(A)(3) defines “[c]onfidential file” as:
“(a) records of a case brought before the court under . . . MCL 712A.1 et seq., including, but not limited to,
(i) the diversion record of a minor pursuant to the Juvenile Diversion Act, MCL 722.821 et seq.;[27]
(ii) the separate statement about known victims of juvenile offenses, as required by the Crime Victim’s Rights Act, MCL 780.751 et seq.;[28]
(iii) the testimony taken during a closed proceeding pursuant to MCR 3.925(A)(2) and MCL 712A.17(7);[29]
(iv) the dispositional reports pursuant to MCR 3.943(C)(3) and MCR 3.973(E)(4);[30]
(v) biometric data required to be maintained pursuant to 31
(vi) reports of sexually motivated crimes, MCL 28.247;
(vii) test results of those charged with certain sexual offenses or substance abuse offenses, MCL 333.5129;[32]
(b) the contents of a social file maintained by the court, including materials such as:
(i) youth and family record fact sheet;
(ii) social study;
(iii) reports (such as dispositional, investigative, laboratory, medical, observation, psychological, psychiatric, progress, treatment, school, and police reports);
(iv) Department of Human Services records;
(v) correspondence;
(vi) victim statements;
(vii) information regarding the identity or location of a foster parent, preadoptive parent, or relative caregiver.”
Social files are accessible only by persons who are found by the court to have a legitimate interest. MCR 3.925(D)(2).
“‘Persons having a legitimate interest’ includes, but is not limited to, the juvenile, the juvenile’s parent, the juvenile’s guardian or legal custodian, the juvenile’s guardian ad litem, counsel for the juvenile, the department or a licensed child caring institution or child placing agency under contract with the department to provide for the juvenile’s care and supervision if related to an investigation of child neglect or child abuse, law enforcement personnel, a prosecutor, a member of a local foster care review board established under . . . MCL 722.131 to [MCL] 722.139a, the Indian child’s tribe if the juvenile is an Indian child, and a court of this state.” MCR 3.925(D)(1). To determine whether a person has a legitimate interest, the court must consider:
•the nature of the proceedings;
•the welfare and safety of the public;
•the interest of the juvenile; and
•any restriction imposed by state or federal law. MCR 3.925(D)(2).
Types of records subject to restrictions under state and federal law include:
•educational records and communications, 20 USC 1232g(b)(1); MCL 600.2165;
•records of recipients of mental health services, MCL 330.1748;33
•records of patients participating in substance abuse programs, 42 USC 290dd-2;34 and
•prescription records, MCL 333.17752.
MCR 8.119(D) provides, in part:
“Documents and other materials made nonpublic or confidential by court rule, statute, or order of the court [sealing a record] pursuant to [MCR 8.119](I)[35] must be designated accordingly and maintained to allow only authorized access. In the event of transfer or appeal of a case, every rule, statute, or order of the court under [MCR 8.119](I) that makes a document or other materials in that case nonpublic or confidential applies uniformly to every court in Michigan, irrespective of the court in which the document or other materials were originally filed.”
See also MCR 3.930(C), which provides that “[i]f the court retains discovery materials filed pursuant to MCR 1.109(D) or an exhibit submitted pursuant to [MCR 3.930] after a hearing or trial and the material is confidential as provided by MCR 3.903(A)(3) or order of the court [sealing a record] pursuant to MCR 8.119(I),[36] the court must continue to maintain the material in a confidential manner.”37
If a juvenile successfully completes participation in drug treatment court38 and the proceedings are discharged and dismissed, all records regarding the juvenile’s participation are closed to public inspection and are exempt from disclosure under the Freedom of Information Act (FOIA), MCL 15.321 et seq. MCL 600.1076(6).39
Similarly, all records regarding the participation of a juvenile in a juvenile mental health court,40 whether resulting in discharge and dismissal or in the juvenile’s failure to successfully complete the program, are closed to public inspection and are exempt from public disclosure under the FOIA. MCL 600.1099k(4).
4.Immunity for Persons or Agencies Furnishing Information to the Court
MCR 3.924 provides:
“Persons or agencies providing testimony, reports, or other information at the request of the court, including otherwise confidential information, records, or reports that are relevant and material to the proceedings following authorization of a petition, are immune from any subsequent legal action with respect to furnishing the information to the court.”41
18. See Section 21.9(B) for discussion of dissemination of juvenile history record information.
19. MCR 8.119(F) provides that “[c]ourt recordings, log notes, jury seating charts, and all other records such as tapes, backup tapes, discs, and any other medium used or created in the making of a record of proceedings and kept pursuant to MCR 8.108 are court records and are subject to access in accordance with [MCR 8.119(H)(8)(b)].” MCR 8.119(F) references former MCR 8.119(H)(2)(b), which has been renumbered MCR 8.119(H)(8)(b). See ADM File No. 2002-37 and ADM File No. 2017-28, effective May 11, 2022. MCR 8.119(H)(8)(b), in turn, requires every court, by administrative order, to “establish a policy for whether to provide access for records defined in [MCR 8.119](F) and if access is to be provided, outline the procedure for accessing those records[.]”
20. See Section 21.1(B) for additional discussion of case records.
21.MCR 8.119(H)(4) provides that “[i]f a request is made for a public record that is maintained electronically, the court is required to provide a means for access to that record”; “[h]owever, the records cannot be provided through a publicly accessible website if protected personal identifying information has not been redacted from those records.” “If a public document prepared or issued by the court on or after April 1, 2022, or a Uniform Law Citation filed with the court on or after April 1, 2022, contains protected personal identifying information, the information must be redacted before it can be provided to the public, whether the document is provided upon request via a paper or electronic copy, or direct access via a publicly accessible computer at the courthouse. Upon receipt by the court on or after April 1, 2022, protected personal identifying information included in a proposed order shall be protected by the court as required under MCR 8.119(H) as if the document was prepared or issued by the court.” MCR 8.119(H)(5). See Section 21.1(A) for discussion of protected personal identifying information.
22. See Section 21.3(A) for discussion of sealing records under MCR 8.119(I).
23. MCR 8.119(J) governs access and reproduction fees.
24. For discussion of exceptions to the general rule that records are open to the general public, see Section 21.3 (discussing access to records of proceedings that are closed under MCL 712A.17) and Section 21.4 (discussing access to diversion records).
25. For discussion of exceptions to the general rule that records are open to the general public, see Section 21.3 (discussing access to records of proceedings that are closed under MCL 712A.17) and Section 21.4 (discussing access to diversion records).
26. See Section 4.3 and Section 21.4 for discussion of diversion.
27. See Section 4.3 and Section 21.4 for discussion of diversion.
28. See Section 21.6 for confidentiality provisions under the Crime Victim’s Rights Act.
29. See Section 7.14 and Section 21.3 for discussion of closed delinquency proceedings.
30. MCR 3.943(C)(3) permits the admission, at dispositional hearings, of “materials prepared pursuant to a court-ordered examination, interview, or course of treatment.” See Section 10.7. MCR 3.973(E)(4) governs the use of written reports at dispositional hearings in child protective proceedings.
31. See Sections 21.10, 21.11, and 21.12 for more information.
32. See Section 21.18.
33. See Section 10.7 for discussion of abrogation of privileges, including privileges otherwise applicable to “materials prepared pursuant to a court-ordered examination, interview, or course of treatment[,]” MCR 3.943(C)(3), in dispositional hearings.
34. See Section 10.7 for discussion of abrogation of privileges, including privileges otherwise applicable to “materials prepared pursuant to a court-ordered examination, interview, or course of treatment[,]” MCR 3.943(C)(3), in dispositional hearings.
35. See Section 21.3(A) for discussion of sealing records under MCR 8.119(I).
36. See Section 21.3(A) for discussion of sealing records under MCR 8.119(I).
37. See Section 21.7(B) for discussion of disposal of exhibits.
38. “‘Drug treatment court’ means a court supervised treatment program for individuals who abuse or are dependent upon any controlled substance or alcohol.” MCL 600.1060(c).
39. Additionally, MCL 600.1076(9) states that “if the record of proceedings as to the defendant is deferred under [MCL 600.1076], the record of proceedings during the period of deferral [is] closed to public inspection.” However, in all cases in which a judgment of guilt or adjudication of responsibility is not entered under MCL 600.1076, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge; this nonpublic record is open, for limited purposes as set out in MCL 600.1076(10)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Human Services. MCL 600.1076(10). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9, for additional discussion of drug treatment court proceedings and records.
40. Effective March 28, 2019, 2018 PA 590 added Chapter 10C, MCL 600.1099b et seq., to the Revised Judicature Act to establish juvenile mental health courts. See Section 1.8 for more information.
41. A more complete discussion of immunity from liability is beyond the scope of this benchbook.