21.3Sealing Records & Access to Records of Closed Proceedings

“Unless 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),[1] any person may inspect that record and may obtain copies as provided in [MCR 8.119](J).”2 MCR 8.119(H)(7).3 

A.Sealing Records

Upon motion of a party, the court may seal court records, other than a court order or opinion, as provided in MCR 8.119(I). MCR 8.119(I)(1) provides that, “[e]xcept as otherwise provided by statute or court rule, a court may not enter an order that seals court records, in whole or in part, in any action or proceeding, unless:

(a) a party has filed a written motion that identifies the specific interest to be protected,

(b) the court has made a finding of good cause, in writing or on the record, which specifies the grounds for the order, and

(c) there is no less restrictive means to adequately and effectively protect the specific interest asserted.”

MCR 8.119(I)(2) provides that, “[i]n determining whether good cause has been shown, the court must consider[:]

(a) the interests of the parties, including, where there is an allegation of domestic violence, the safety of the alleged or potential victim of the domestic violence, and

(b) the interest of the public.”

Additionally, “[t]he court must provide any interested person the opportunity to be heard concerning the sealing of the records.” MCR 8.119(I)(3). “Materials that are subject to a motion to seal a record in whole or in part must be made nonpublic temporarily pending the court’s disposition of the motion.” MCR 8.119(I)(4).

MCR 8.119(I)(9) provides that “[a]ny person may file a motion to set aside an order that disposes of a motion to seal the record, to unseal a document filed under seal pursuant to MCR 2.302(C), or an objection to entry of a proposed order.” If the motion is denied, “the moving or objecting person may file an application for leave to appeal in the same manner as a party to the action.” Id.4

B.Access to Records of Closed Proceedings in Delinquency Cases5

MCL 712A.17 permits a court to close the hearing of a case brought under the Juvenile Code if it determines that doing so will protect the welfare of a juvenile witness or victim.

MCL 712A.28(2)-(3) provide that if a hearing in a delinquency case is closed to the general public under MCL 712A.17, the records of that hearing shall be open only by order of the court to persons having a legitimate interest,6 except as otherwise provided in MCL 780.799 (requiring a victim “be provided with a certified copy of the order of an adjudicative hearing for purposes of obtaining relief under [MCL 600.2913,]” the “parental liability statute”).

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)[7] 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.”

C.Juvenile Competency Evaluation Reports

Virtually identical provisions within the Mental Health Code, MCL 330.2060—MCL 330.2074, and the Juvenile Code, MCL 712A.18n—MCL 712A.18s, govern competency evaluations and determinations in juvenile delinquency cases.8

Following a juvenile competency evaluation, “[a]fter the case proceeds to adjudication or the juvenile is found to be unable to retain competence,” the court must order the sealing of all of the reports that are submitted in the competency evaluation process under MCL 330.2062—MCL 330.2068 or MCL 712A.18n—MCL 712A.18q. MCL 330.2070(5); MCL 712A.18r(5).

The court may order that reports that are sealed under MCL 330.2070(5) or MCL 712A.18r(5) be opened only for the following purposes:

•for further competency or criminal responsibility evaluations, MCL 330.2070(5)(a); MCL 712A.18r(5)(a);

•to assist in mental health treatment ordered under the Mental Health Code, if the records are considered to be necessary, MCL 330.2070(5)(c); MCL 712A.18r(5)(c); or

•for statistical analysis, data gathering, or scientific study or other legitimate research, MCL 330.2070(5)(b); MCL 330.2070(5)(d)-(e); MCL 712A.18r(5)(b); MCL 712A.18r(5)(d)-(e).

Reports that are opened for the purposes of statistical analysis, data gathering, or scientific study “shall remain confidential.” MCL 330.2070(6); MCL 712A.18r(6).

“Any statement that a juvenile makes during a competency evaluation, or any evidence resulting from that statement, is not subject to disclosure.” MCL 330.2070(7); MCL 712A.18r(7).

1    See Section 21.3(A) for discussion of sealing records under MCR 8.119(I).

2    MCR 8.119(J) governs access and reproduction fees.

3    “Except as otherwise provided in [MCR 8.119](F), only case records as defined in [MCR 8.119](D) are public records, subject to access in accordance with these rules.” MCR 8.119(H). See MCR 8.119(H) for information on accessing public records; see MCR 8.119(J) for information on access and reproduction fees. Note that MCR 8.119(F) refers to court recordings, log notes, jury seating charts, and media, which “are court records and are subject to access in accordance with [MCR 8.119](H)(8)(b)[(requiring every court to establish a policy regarding access to records defined in MCR 8.119(F))].” 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.

4    MCR 8.116(D)(2) similarly allows “[a]ny person” to “file a motion to set aside an order that limits access to a court proceeding . . . or an objection to entry of such an order[,]” and to file an application for leave to appeal in the same manner as a party if the court denies the motion or objection.

5    See Section 7.14 for discussion of closing delinquency proceedings to the general public.

6    ‘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.” MCL 712A.28(5)(d).

7    See Section 21.3(A) for discussion of sealing records under MCR 8.119(I).

8    See Section 7.10 for discussion of juvenile competency determinations.