3.19Nonpublic Record of Order Setting Aside a Conviction
A.Sending Copy of Order to Arresting Agency and Department of State Police
Once an order to set aside a conviction is entered under MCL 780.621 or MCL 780.621e, the court must send a copy to the arresting agency and the Department of State Police. MCL 780.623(1).
B.Retention and Availability of Nonpublic Record of Order and Other Records
“[T]he Department of State Police is required to retain a record of expunged convictions and their associated sentences, which may be accessed and used by a number of state authorities for a variety of reasons[.]” People v Van Heck, 252 Mich App 207, 215 (2002).
“The department of state police shall retain a nonpublic record of the order setting aside a conviction, or other notification regarding a conviction that was automatically set aside under [MCL 780.621g], and of the record of the arrest, fingerprints, conviction, and sentence of the person in the case to which the order or other notification applies.” MCL 780.623(2). “Except as provided in [MCL 780.623(3)], this nonpublic record shall be made available only to a court of competent jurisdiction, an agency of the judicial branch of state government, the department of corrections, a law enforcement agency, a prosecuting attorney, the attorney general, or the governor upon request and only for the following purposes:
(a) Consideration in a licensing function conducted by an agency of the judicial branch of state government.
(b) To show that a person who has filed an application to set aside a conviction has previously had a conviction set aside under [MCL 780.621 et seq].
(c) The court’s consideration in determining the sentence to be imposed upon conviction for a subsequent offense that is punishable as a felony or by imprisonment for more than 1 year.
(d) Consideration by the governor if a person whose conviction has been set aside applies for a pardon for another offense.
(e) Consideration by the department of corrections or a law enforcement agency if a person whose conviction has been set aside applies for employment with the department of corrections or law enforcement agency.
(f) Consideration by a court, law enforcement agency, prosecuting attorney, or the attorney general in determining whether an individual required to be registered under the sex offenders registration act[ (SORA), MCL 28.721 et seq.], has violated that act, or for use in a prosecution for violating that act.
(g) Consideration by a court, law enforcement agency, prosecuting attorney, or the attorney general for use in making determinations regarding charging, plea offers, and sentencing, as applicable.” MCL 780.623(2).
C.Providing Copy of Nonpublic Record to Person Whose Conviction Is Set Aside and Fee
“A copy of the nonpublic record created under [MCL 780.623(2)] must be provided to the person whose conviction is set aside under [MCL 780.621 et seq.] upon payment of a fee determined and charged by the department of state police in the same manner as the fee prescribed in [MCL 15.234 (the Freedom of Information Act (FOIA))].” MCL 780.623(3).
D.Nonpublic Record Exempt From Disclosure
“The nonpublic record maintained under [MCL 780.623(2)] is exempt from disclosure under the [Freedom of Information Act (FOIA), MCL 15.231 et seq].” MCL 780.623(4).
“Except as provided in [MCL 780.623(2)], a person, other than the person whose conviction was set aside or a victim, who knows or should have known that a conviction was set aside under [MCL 780.623] and who divulges, uses, or publishes information concerning a conviction set aside under [MCL 780.623] is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.” MCL 780.623(5).
“An entity is not liable for damages or subject to criminal penalties under this section for reporting a public record of conviction that has been set-aside by court order or operation of law, if that record was available as a public record on the date of the report.” MCL 780.623(6).