21.5Access to Family Division Records and Confidential Files

A.Access to Case Records

MCL 712A.28(2) provides, in part:

“Beginning June 1, 1988, the [Family Division] shall maintain records of all cases brought before it . . . . Except as otherwise provided in [MCL 712A.28(2)], until December 31, 2020,[1] records of a case brought before the [Family Division] are open to the general public.”2

“Beginning January 1, 2021,[3] 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.”4 MCL 712A.28(3). See also MCR 3.925(D)(1) (“[r]ecords[5] of a case brought before the [Family Division] under [the Juvenile Code,] MCL 712A.1 et seq., are only open to persons having a legitimate interest”). The status of diversion records is governed by the juvenile diversion act. MCL 712A.28(1)-(3).

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].” MCL 712A.28(1).

“Requests for access to public court records shall be granted in accordance with MCR 8.119(H).” MCR 1.109(F). Under MCR 8.119(H)(7), access to case records are open to the public, unless made nonpublic or confidential by statute, court rule, or court order. Note that “[e]xcept as otherwise provided in [MCR 8.119(F)6], only case records as defined in [MCR 8.119(D)] are public records, subject to access in accordance with [the court rules].” MCR 8.119(H).7 

If an individual requests a public record and the court maintains the record electronically, the court must provide a method of accessing the record. MCR 8.119(H)(4). If a document contains protected personal identifying information that has not been redacted,8 the document cannot be provided through a website that is publicly accessible.9 Id. If the court prepares or issues a public document on or after April 1, 2022, or if a Uniform Law Citation is filed with the court on or after April 1, 2022, and the document contains protected personal identifying information, that information must be redacted before the public may access the document without regard to whether the copy of the document is provided on paper, electronically, or through direct access from a publicly accessible computer at the courthouse. MCR 8.119(H)(5).

When, on or after April 1, 2022, the court receives a proposed order that includes protected personal identifying information, the court must protect the information as prescribed by MCR 8.119(H) “as if the document was prepared or issued by the court.” MCR 8.119(H)(5).

B.Confidential Files

1.Definition of “Confidential Files”

“Confidential files are defined in MCR 3.903(A)(3) and include the social case file and those records in the legal case file made confidential by statute, court rule, or court order.” MCR 3.925(D)(2).10 Specifically, MCR 3.903(A)(3) defines confidential files in relevant part as:

“(a) that part of a file made confidential by statute or court rule, including, but not limited to,

* * *

(iii) the testimony taken during a closed proceeding pursuant to MCR 3.925(A)(2) and MCL 712A.17(7);[11]

(iv) the dispositional reports pursuant to . . . MCR 3.973(E)(4);[12]

* * *

(b) the contents of a social file maintained by the court, including materials such as:

(i) youth and family record sheet;

(ii) social study;

(iii) reports (such as dispositional, investigative, laboratory, medical, observation, psychological, psychiatric, progress, treatment, school, and police reports);

(iv) Department of Health and Human Services records;

(v) correspondence;

(vi) victim statements;

(vii) information regarding the identity or location of a foster parent, preadoptive parent, or relative caregiver.”

2.Access to Confidential Files

Confidential files are accessible only by persons found by the court to have a legitimate interest. MCR 3.925(D)(2). 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 interests of the child; 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;

•records of patients participating in substance abuse programs, 42 USC 290dd-2; and

•prescription records, MCL 333.17752.13

3.Disclosure Under the Freedom of Information Act (FOIA)

Under FOIA, a public body is subject to disclosure requirements. See MCL 15.232(h). The term public body includes “[a]ny other body that is created by state or local authority or is primarily funded by or through state or local authority, except that the judiciary, including the office of the county clerk and its employees when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.” MCL 15.232(h)(iv). Accordingly, court records and confidential files are not subject to requests under the FOIA.

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.”14

C.Access to Closed Protective Proceedings

MCL 712A.17 permits a court to close proceedings to the general public during the testimony of a child witness or a victim to protect the welfare of either individual. MCL 712A.17(7); MCR 3.925(A)(2).15 

D.Access to Records and Reports under the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA)

The Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA)16 provide each party involved in an emergency proceeding, a foster-care-placement, or termination-of-parental-rights proceeding with “the right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.”17 25 USC 1912(c); MCL 712B.11; 25 CFR 23.134.

1    Note that the public act that added the “until December 31, 2020” language was not effective until March 24, 2021. See 2021 PA 362.

2    For discussion of exceptions to the general rule that records are open to the general public, see Section 21.4 (discussing access to records of proceedings that are closed under MCL 712A.17).

3    Note that the public act that added the “[b]eginning January 1, 2021” language was not effective until March 24, 2021. See 2021 PA 362.

4   “‘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); MCR 3.925(D)(1).

5    “‘Records’ are as defined in MCR 1.109 and MCR 8.119 and 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.” MCR 3.903(A)(25).

6    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)].”

7   If a court can reasonably accommodate a request for a document that is not available on paper or by digital image, the court may provide the record. MCR 8.119(H)(6). “The court is not required to provide the means to access or reproduce the contents of . . . materials if the means is not already available.” Id.

8   For purposes of case records as that term is defined in MCR 8.119(D)-(E), redact “means to obscure individual items of information within an otherwise publicly accessible document.” MCR 1.109(H)(3). Redacted document “means a copy of an original document in which items of information have been redacted.” MCR 1.109(H)(4).

9   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).

10   The text appearing in MCR 3.925(D) and MCR 3.925(D)(2) was changed from confidential file(s) to social file(s). See ADM File No. 2021-09, effective March 24, 2021.

11    See Section 9.5 for a detailed discussion of closing child protective proceedings to the public.

12    See Section 13.4 for additional information on MCR 3.973(E).

13    For additional information on state and federal restrictions, see Section 2.4.

14    See Section 2.8 for a discussion of civil and criminal immunity with respect to reporting suspected child abuse or neglect.

15    See Section 9.5 for a detailed discussion of closing child protective proceedings to the public.

16    See Chapter 19 for a detailed discussion of the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA).

17    See the ICWA form Request to Produce and Examine.