21.2Personal Identifying Information (PII)¹

“[P]ersonal identifying information is protected and shall not be included in any public document or attachment filed with the court on or after April 1, 2022,” unless otherwise provided by the Michigan Court Rules. MCR 1.109(D)(9)(a).

A.Protected PII Defined

An individual’s protected PII includes the following:

•date of birth,

•Social Security number or national identification number,

•driver’s license number or number of state-issued personal identification card,

•passport number, and

•financial account numbers. MCR 1.109(D)(9)(a)(i)-(v).

B.Filing and Accessing Protected PII

1.Filing a Document Containing Protected PII

When law or court rule requires protected PII, as it is defined in MCR 1.109(D)(9)(a), to be filed with the court, or when the court finds the information necessary to identify a specific individual in a case, the PII must be provided using the form and manner required by the State Court Administrative Office (SCAO).² MCR 1.109(D)(9)(b)(i).

Protected PII provided to the court in compliance with the requirements of MCR 1.109(D)(9)(b) must be entered into the case management system according to standards established by the SCAO. MCR 1.109(D)(9)(e). “The information shall be maintained for the purposes for which it was collected and for which its use is authorized by federal or state law or court rule; however, it shall not be included or displayed as case history under MCR 8.119(D)(1).

Except as the court rules otherwise provide, when a party is required to provide protected PII in a public document to be filed with the court, the party must redact the protected PII from the document and file the PII form approved by SCAO.³ MCR 1.109(D)(9)(b)(iii).

The SCAO form must contain the information redacted from the document and must assign an appropriate reference to the information contained in the SCAO form that uniquely associates each item redacted from the document with the corresponding personal identifying information provided on the SCAO form.⁴ MCR 1.109(D)(9)(b)(iii). When a reference is made in a case to the identifier representing the personal identifying information on the SCAO form, the reference to the identifier is understood to refer to the complete information related to the identifier appearing on the form. Id. The SCAO form may include fields for the PII, and the information inserted into the fields will be protected.⁵ Id. “Unredacted protected personal identifying information may be included on Uniform Law Citations filed with the court and on proposed orders submitted to the court.” Id. “If a party submits to the court a proposed order that is required to contain unredacted protected personal identifying information once issued by the court, the party shall not attach the proposed order to another document.” Id.

Providing a Social Security number. When a Social Security number is required to be filed with the court, the number must be limited to the last four digits, except when the documents being filed are required by the Friend of the Court and will not be placed in the court’s legal file under MCR 8.119(D). MCR 1.109(D)(9)(b)(ii).⁶

2.Amending Protected PII

An individual may amend as of right the protected PII provided in the SCAO form. MCR 1.109(D)(9)(b)(iii).

3.Access to a Document Containing Protected PII

Limited access to protected PII. Protected PII under MCR 1.109(D) is nonpublic. MCR 1.109(D)(9)(b)(iv). Protected PII is available for purposes of case activity or as otherwise required by law or court rule. Id. The protected PII provided is available only to the parties in a case, to interested persons described in the court rules, and to other persons, entities, or agencies authorized by law or court rules to access nonpublic records that have been filed with the court. Id.

C.Consenting to the Access of Protected PII

A party may stipulate in writing to permit any person, entity, or agency to access to his or her protected PII. MCR 1.109(D)(9)(b)(v)(A). Unless otherwise provided in MCR 3.903, any person, entity, or agency attempting to access the protected PII must provide the court with the stipulation permitting access. Id.

1.Access to a Party’s Date of Birth

Obtaining authority to access a party’s date of birth. For the purpose of confirming a particular person’s identity and with the person’s consent, an individual may be authorized to access a party’s date of birth without having to present a stipulation as is required under MCR 1.109(D)(9)(b)(v)(A) in order to access protected PII. MCR 1.109(D)(9)(b)(v)(B)(1).

Possession of the party’s consent. The individual authorized to access a birthdate must retain possession of the consent, or the consent may be retained by the entity for which the individual works, or the person or organization (or someone acting on their behalf) seeking a party’s date of birth. MCR 1.109(D)(9)(b)(v)(B)(1).

2.List of Individuals Authorized to Access a Party’s Date of Birth

SCAO list of authorized individuals. The SCAO will maintain a list of the individuals having the authority to access a party’s date of birth. MCR 1.109(D)(9)(b)(v)(B)(1). To appear on the SCAO list, an individual must provide in writing the name of the entity for which the individual works and an assurance that on each occasion the individual seeks to confirm a party’s birthdate, it is in the course of the individual’s work and with the consent of the person whose date of birth is sought. Id. The assurance must be updated every six months from the date of the original submission. Id.

Additional information required for placement on the SCAO list. In addition, an individual seeking to be placed on the SCAO list of individuals authorized to access birthdates must provide proof of his or her employer’s or hiring entity’s professional liability insurance in effect during the time the individual is seeking the person’s date of birth. MCR 1.109(D)(9)(b)(v)(B)(2). The proof of insurance is nonpublic and must be updated whenever the insurance policy expires or is terminated. Id.

Court’s duty to verify identity. A court must verify the identity of an individual claiming to be authorized to obtain a person’s birthdate by matching the name appearing on the individual’s state-issued identification card with the individual’s name on the SCAO list. MCR 1.109(D)(9)(b)(v)(B)(3). “Courts and the State Court Administrative Office may create secure, individualized accounts that allow authorized individuals to access a party’s date of birth electronically.” Id. After confirming the identity of the individual seeking information about a person’s birthdate, a court must supply the authorized individual with a public register of actions or other public document that includes the person’s date of birth. Id.

D.No Exemptions for Service of Protected PII

Except by a court order issued under MCR 1.109(D)(9)(b)(vii) making the PII confidential, there is no exemption from the requirement that a court or a party serve a nonpublic document that was filed with the court and includes the protected PII that must be provided to the court as stated in MCR 1.109(D)(9)(b)(i). MCR 1.109(D)(9)(b)(vi).

E.Protected PII May Be Made Confidential

For just cause found, a court may, on its own motion or by motion of a party, order that PII be made confidential. MCR 1.109(D)(9)(b)(vii). The order must identify the person, party, or entity whose access to the PII is restricted. Id. When a party’s home address or telephone number is made confidential, the court order must provide an alternative address for service on the party or an alternative phone number by which the party may be contacted about case activity. Id.

F.Failing to Comply With Requirements to Protect PII

If a party files his or her protected PII in a public document and does not provide the information in the form and manner established by the SCAO under MCR 1.109(D)(9), the party waives the protection available for his or her PII. MCR 1.109(D)(9)(d)(i). When a party fails to comply with the requirements of MCR 1.109(D) the court, on its own initiative or by a party’s motion, may have the improperly filed documents sealed and order that new documents with redactions be prepared and filed. MCR 1.109(D)(9)(d)(ii).

G.Redacting Protected and Unprotected PII

1.Protected PII in Documents Filed With a Court

A person whose protected PII appears in a document filed with the court may request in writing that the protected PII be redacted;⁷ if a person makes such a request, the clerk of the court must promptly process the request. MCR 1.109(D)(10)(c)(i). No motion fee is required for the request, the request must specify the protected PII to be redacted, and the document must be maintained as a nonpublic document in the case file. Id.

2.Unprotected PII in Public Documents Filed With a Court

PII not protected under MCR 1.109 may be redacted or made confidential or nonpublic. MCR 1.109(D)(10)(c)(ii). A party or a person having unprotected PII in a public document filed with the court may, in an ex parte motion using the appropriate SCAO-approved form,⁸ request that the court direct the court clerk to redact the information specified by the party or person or to make the information confidential or nonpublic. Id. The court has discretion to hold a hearing on the motion. Id. The court must enter an order to redact the information or to make the information confidential or nonpublic “if the party or person’s privacy interest outweighs the public’s interest in the information.”⁹ Id.

3.Protected PII in an Exhibit Offered for Hearing or Trial

Protected PII may be redacted from an exhibit offered at a hearing or a trial when a person or party having protected PII in the exhibit requests in writing to have the PII redacted. MCR 1.109(D)(10)(c)(iii). No motion fee is required. Id. The person or party seeking redaction must identify in the request the specific protected PII to be redacted, and the request must be maintained as a nonpublic document in the case file. Id. The court must order the information redacted “if the party or person’s privacy interest outweighs the public’s interest in the information.” Id.

4.Protected PII in Transcripts Filed With the Court

Unredacted protected PII may be included on transcripts that are filed with the court. MCR 1.109(D)(10)(c)(iv). The protected PII must be redacted by the court clerk if redaction is requested in writing pursuant to MCR 1.109(D)(10)(c)(i). MCR 1.109(D)(10)(c)(iv). The written request for redaction of protected PII from a transcript “must identify the page and line number for each place in the transcript where the protected information is located.” Id.

H.Responsibility for Redaction

The parties and their attorneys are solely responsible for excluding or redacting the PII listed in MCR 1.109(D)(9) from all documents filed with or offered to the court. MCR 1.109(D)(10)(a). There is no requirement that at the time of filing, a court clerk review, redact, or screen documents for PII, whether protected or unprotected, without regard to whether the documents are filed electronically or on paper. Id.

Except as otherwise provided in the court rules, a court clerk is not required to redact protected PII from documents filed with or offered to the court¹⁰ before providing a copy of the document requested, whether in-person or via the internet, or before making available at the courthouse via a publicly accessible computer that gives a person direct access to the document. MCR 1.109(D)(10)(a).

I.Certifying a Record

“The clerk of the court may certify a redacted record as a true copy of an original record on file with the court by stating that information has been redacted in accordance with law or court rule, or sealed as ordered by the court.” MCR 1.109(D)(10)(d).

J.Maintaining a Document After Redacting PII

Documents from which PII has been redacted, or to which access has been restricted, must be maintained according to the standards established by the SCAO. MCR 1.109(D)(10)(e).