21.1Family Division Records and Recordkeeping Obligations

“The court, under the direction of the chief judge, has responsibility for the management of all records necessary to adequately support the business of the court. It requires the systematic control of those records from the point they are created, received, or filed to the point they are transferred to the Archives of Michigan or destroyed in accordance with approved record retention and disposal schedules. This is accomplished through the assistance of staff support, including, but not limited to, court administrators, registers of probate, clerks of the court, probation officers, and friends of the court, all of whom are required to comply with various laws, court rules, and standards pertaining to management of the judiciary’s court records.” Michigan Trial Court Records Management Standards, Introduction.

A.Records and Register of Actions

The clerk of the court¹ is required to maintain case records; a register of actions (case history), searchable by case number or party name; and a case file² for each case. See MCR 1.109; MCR 8.119.³

Records. “For purposes of [MCR 8.119], records are as defined in MCR 1.109, MCR 3.218, MCR 3.903, and MCR 8.119(D)-(G).” MCR 8.119(A). See also MCR 3.925(A)(25) (“‘[r]ecords’ are as defined in MCR 1.109 and MCR 8.119). In general, “[c]ourt records are recorded information of any kind that has been created by the court or filed with the court in accordance with Michigan Court Rules.” MCR 1.109(A)(1). MCR 8.119(I)(5), in turn, provides that “‘court records’ includes all documents and records of any nature that are filed with or maintained by the clerk in connection with the action.” MCR 3.903(A)(25) provides that “’[r]ecords’ . . . include, but are not limited to, pleadings, complaints, citations, motions, authorized and unauthorized petitions, notices, memoranda, briefs, exhibits, available transcripts, findings of the court, registers of action, consent calendar case plans, and court orders.”⁴ In addition, MCR 1.109(A)(1)(a) provides that “[c]ourt records include, but are not limited to:

“(i) documents, attachments to documents, discovery materials, and other materials filed with the clerk of the court,

(ii) documents, recordings, data, and other recorded information created or handled by the court, including all data produced in conjunction with the use of any system for the purpose of transmitting, accessing, reproducing, or maintaining court records.”⁵

Note: A document is “a record produced on paper or a digital image of a record originally produced on paper or originally created by an approved electronic means, the output of which is readable by sight and can be printed to 8 1/2 x 11 inch paper without manipulation.” MCR 1.109(B). See also MCR 1.109(D)(1), providing that “documents prepared for filing in the courts” must be “transmitted through an approved electronic means and maintained as a digital image.” For more information on e-filing, see the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 1.

“Discovery materials that are not filed with the clerk of the court are not court records. Exhibits that are maintained by the court reporter or other authorized staff pursuant to MCR 2.518 or MCR 3.930 during the pendency of a proceeding are not court records.” MCR 1.109(A)(2).

Case File. A file is “a repository for collection of the pleadings and other documents and materials related to a case.” MCR 3.903(A)(8). The clerk of the court is required to maintain a case file of each action, except for civil infractions, “for all pleadings, process, written opinions and findings, orders, and judgments filed in the action, and any other materials prescribed by court rule, statute, or court order to be filed with the clerk of the court.” MCR 8.119(D)(1)(b); see also MCR 8.119(D)(1).

Register of Actions (Case History). A register of actions is “the case history of all cases, as defined in [MCR 3.903(A)(1)], maintained in accordance with the Michigan Supreme Court Records Management Standards.” MCR 3.903(A)(26). The clerk of the court must create and maintain a register of actions (case history) for each case in the court’s automated case management system, and the system must be searchable by case number or party name (“previously known as numerical and alphabetical indices”). MCR 8.119(D)(1)(a).

The requirements of properly recording a case history continue:

“The case history shall contain both pre- and post-judgment information and shall, at a minimum, consist of the data elements prescribed in the Michigan Trial Court Records Management Standards. Each entry shall be brief, but shall show the nature of each item filed, each item issued by the court, and the returns showing execution. The case history entry of each item filed shall be dated with the date of filing (if relevant) and the date and initials of the person recording the action, except where the entry is recorded by the electronic filing system. In that instance, the entry shall indicate that the electronic filing system recorded the action. The case history entry of each order, judgment, opinion, notice, or other item issued by the court shall be dated with the date of issuance and the initials of the person recording the action.” MCR 8.119(D)(1)(a).

Personal identifying information. Information identified as “personal identifying information (PII)”⁶ that has been entered into a court’s case management system pursuant to MCR 1.109(D)(9)(e) must not be included or displayed in a case’s case history. MCR 8.119(D)(1)(a). “[PII] 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, including when transferred to the Archives of Michigan pursuant to law.” MCR 8.119(D)(1)(a).

“The court shall destroy its case files and other court records only as prescribed by the records retention and disposal schedule established under MCR 8.119(K). Destruction of a case record does not negate, rescind, or set aside an adjudication.” MCR 3.925(E). For a detailed discussion of the retention and destruction of court records specific to child protective proceedings, see Section 21.6.

B.County Clerk’s Obligations

1.Custodial Function

“[T]he clerk has a constitutional obligation to have the care and custody of the circuit court’s records and . . . the circuit court may not abrogate this authority.” Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 158 (2003), citing In the Matter of Head Notes to the Opinions of the Supreme Court, 43 Mich 640, 643 (1880). In Lapeer Co Clerk, supra at 160, the Michigan Supreme Court further explained the clerk’s custodial function:

“The circuit court clerk’s role of having the care and custody of the records must not be confused with ownership of the records. As custodian, the circuit court clerk takes care of the records for the circuit court, which owns the records. Nothing in the constitutional custodial function gives the circuit court clerk independent ownership authority over court records. Accordingly, the clerk must make those records available to their owner, the circuit court. The clerk is also obligated to make the records available to members of the public, when appropriate.”

2.Ministerial Function

“The clerk’s noncustodial ministerial duties are directed by the [Michigan Supreme] Court, as the determination of the precise noncustodial ministerial duties to be performed is a matter of court administration entrusted exclusively to the judiciary under Const 1963, art 3, § 2, Const 1963, art 6, § 1, and Const 1963, art 6, § 5.” Lapeer Co Clerk, 469 Mich at 170-171. “This authority includes the discretion to create duties, abolish duties, or divide duties between the clerk and other court personnel, as well as the right to dictate the scope and form of the performance of such noncustodial ministerial duties.” Lapeer Co Clerk, supra at 164.