1.2Access to Court Files and Records
A.Personal Identifying Information (PII)
“[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).
1.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).
2.Filing and Accessing Protected PII
a.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).1 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 otherwise provided in the court rules, 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.2 MCR 1.109(D)(9)(b)(iii). Unredacted protected PII may be included on Uniform Law Citations involving civil infractions filed with the court and on proposed orders submitted to the court. Id. If a party submits a proposed order to the court that is required to contain unredacted protected PII once issued by the court, the party must not attach the proposed order to another document. Id.
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.3 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.4 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).5
b.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).
c.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.
3.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). Any person, entity, or agency attempting to access the protected PII must provide the court with the stipulation permitting access. Id.
a.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 must 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).
b.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 will be 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 within every six months from the date of the original submission. Id.
Additional information required for placement on the SCAO list. In addition, an individual attempting 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 upon the expiration or termination of the insurance policy. 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 SCOA 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.
4.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).
5.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.
6.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).
7.Redacting Protected and Unprotected PII
a.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;6 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.
b.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,7 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.”8 Id.
c.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.
d.Unredacted Protected PII in Transcripts Filed With a Court
Unredacted protected PII may be included on transcripts filed with the court; however, the clerk of the court must redact protected PII if a person submits a written request identifying the page and line number for each place in the transcript where the PII is located. MCR 1.109(D)(10)(c)(iv).
8.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 court9 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).
9.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).
10.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).
B.Record of Proceedings Required
MCR 8.108(B)(1) states that a “court reporter or recorder shall attend the court sessions under the direction of the court and take a verbatim record of the following:
(a) the voir dire of prospective jurors;
(b) the testimony;
(c) the charge to the jury;
(d) in a jury trial, the opening statements and final arguments;
(e) the reasons given by the court for granting or refusing any motion made by a party during the course of a trial; and
(f) opinions and orders dictated by the court and other matters as may be prescribed by the court.”
MCR 8.108(E) states in part that “[t]he court reporter or recorder shall prepare without delay, in legible English, a transcript of the records taken by him or her (or any part thereof): (1) to any party on request, [or] . . . (2) on order of the trial court.” Id. If the transcript is prepared in response to a party’s request, “[t]he reporter or recorder is entitled to receive the compensation prescribed in the statute on fees from the person who makes the request.” MCR 8.108(E)(1). If the transcript is prepared on order of the court, “[t]he court may order the transcript prepared without expense to either party.” MCR 8.108(E)(2).
MCR 8.109(A) indicates that a trial court is “authorized to use audio and video recording equipment for making a record of court proceedings” if the equipment meets the standards published by the State Court Administrative Office (SCAO)10 or is analog equipment that SCAO has approved for use. In addition, trial courts that use audio or video recording equipment “must adhere to the audio and video recording operating standards published by [SCAO].” MCR 8.109(B).
Occasionally, proceedings occur without a court reporter present, or with a recording system that was not turned on or did not function correctly. MCR 7.210(B)(2) requires specific steps that an appellant must follow “[w]hen a transcript of the proceedings in the trial court or tribunal cannot be obtained from the court reporter or recorder . . . to settle the record and to cause the filing of a certified settled statement of facts to serve as a substitute for the transcript.” If a settled statement of facts is made and certified as prescribed by MCR 7.210(B)(2), it controls the timing of the appellant’s brief in the same manner as would a transcript. MCR 7.212(A)(1)(a)(iii). “When, after remand, it is clear that no settlement of the facts is possible, then the grant of a new trial is permissible to preserve a defendant’s right to appeal.” Elazier v Detroit Non-Profit Housing Corp, 158 Mich App 247, 250 (1987).
For answers to questions about public access during the COVID-19 public health emergency, see SCAO’s Frequently Asked Questions Regarding Expansion of Remote Proceedings.
MCR 1.109(F) provides that “[r]equests for access to public court records shall be granted in accordance with MCR 8.119(H).” MCR 8.119(H) provides, in part:
“Except as otherwise provided in [MCR 8.119](F),[11] only case records as defined in [MCR 8.119](D) are public records, subject to access in accordance with these rules.”12
Additionally, MCR 8.119(H)(7) provides that “[u]nless 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),[13] any person may inspect that record and may obtain copies as provided in [MCR 8.119](J).”14 For instance, MCL 552.6a(1) restricts public access to “a complaint for divorce filed with the court . . . until the proof of service has been filed with the court.”15
“Access to information on set aside convictions is limited 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, and the governor upon request and only for the purposes identified in MCL 780.623. Access may also be provided to the individual whose conviction was set aside, that individual’s attorney, and the victim(s) as defined in MCL 780.623. The court must redact all information related to the set aside conviction or convictions before making the case record or a court record available to the public in any format.” MCR 8.119(H)(9).
MCR 8.119(G) provides, in part, that “[a]ll court records not included in [MCR 8.119(D)-(F)] are considered administrative and fiscal records or nonrecord materials and are not subject to public access under [MCR 8.119](H).”
Administrative Order No. 2006-2, 474 Mich cliv (2006) addresses the confidentiality of social security numbers and management of non-public information contained within public documents.
“[A] court is prohibited from sealing court orders and court opinions under [the plain language of MCR 8.119(I)(6)16.]” Jenson v Puste, 290 Mich App 338, 347 (2010). “Significantly, [MCR 8.119(I)(6)] does not allow a court the authority to exercise discretion in deciding whether to seal [a court order or opinion], unlike the limited discretion that [MCR 8.119(I)(1)] allows when a motion involves other court records.” Jenson, 290 Mich App at 342-347 (trial court properly held that it did not have the authority to seal a personal protection order pursuant to MCR 8.119(I)(6)).
Access to court records can be restricted by the Legislature. In re Midland Publishing Co, Inc, 420 Mich 148, 159 (1984). For example, MCL 750.520k allows a court, in a criminal sexual conduct case, to order the suppression of the victim’s and actor’s names and details of the alleged offense until after the preliminary examination. For a partial listing of statutes, court rules, and cases that restrict public access to court records, see the State Court Administrative Office’s Michigan Trial Court Records Management Standards.
To determine whether a right of access exists regarding a document, a court should ask whether the document has historically been open to the public and press, and whether access “‘plays a significant positive role in the function of the particular process in question.’” In re People v Atkins, 444 Mich 737, 740 (1994), quoting Press-Enterprise Co v Superior Ct of California, 478 US 1, 8 (1986) (after the defendant was found competent to stand trial, the court provided newspapers with an edited (as opposed to full text) version of the psychiatrist’s written report; because competency reports that have not been admitted into evidence have traditionally been viewed as confidential, and public access would not play a significant positive role in the functioning of the particular process in question, the court’s denial of full access to the report was affirmed).
“[T]he press has a qualified right of postverdict access to jurors’ names and addresses, subject to the trial court’s discretion to fashion an order that takes into account the competing interest of juror safety and any other interests that may be implicated by the court’s order.” In re Disclosure of Juror Names & Addresses, 233 Mich App 604, 630-631 (1999). If a court determines that jurors’ safety concerns are “legitimate and reasonable,” the court may deny media access to jurors’ names and addresses. Id. at 630. Jurors’ privacy concerns alone are insufficient to deny access to jurors’ names. Id.
Committee Tips:
Reports and records may be privileged or confidential and their treatment should be scrutinized in each case. Examples are substance abuse evaluations and treatment records, medical records and reports, and psychological/psychiatric records and reports.
Consider whether access to the record is limited by statute, court order, or court rule. See the Nonpublic and Limited-Access Court Records chart.
Consider whether a filed document can be removed from the file by court order. See MCR 8.119(H).
For other information parties wish to keep confidential, consider having the document marked as an exhibit, reviewed by the court on the record, and then returned to the parties at the conclusion of the proceeding. See MCR 1.109(A)(2); MCR 2.518(A) (exhibits received and accepted into evidence under MCR 2.518 are not court records).
MCR 8.119(I)(1)-(3) provide information on sealing court records, as follows:
“(1) Except as otherwise provided by statute or court rule, a court may not enter an order that seals courts [sic] 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.
(2) In 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.
(3) The court must provide any interested person the opportunity to be heard concerning the sealing of the records.”
Committee Tip:
MCR 8.119(I) grants the court limited discretion to seal records. Courts should be cautious of sealing records unless the limiting factors set forth in MCR 8.119(I) have been satisfied.
MCR 8.119(I) is not intended to limit a court’s authority to issue protective orders under MCR 2.302(C) for trade secrets, etc, or require that a protective order issued under MCR 2.302(C) be filed with the Clerk of the Supreme Court and the State Court Administrative Office (SCAO). MCR 8.119(I)(8). “A protective order issued under MCR 2.302(C) may authorize parties to file materials under seal in accordance with the provisions of the protective order without the necessity of filing a motion to seal under this rule.” MCR 8.119(I)(8).
“[A] court is prohibited from sealing court orders and court opinions under [the plain language of MCR 8.119(I)(6)17.]” Jenson v Puste, 290 Mich App 338, 347 (2010). “Significantly, [MCR 8.119(I)(6)] does not give a court the authority to exercise discretion in deciding whether to seal [a court order or opinion], unlike the limited discretion that [MCR 8.119(I)(1)18] allows when a motion involves other court records.” Jenson, 290 Mich App at 342-347 (trial court properly held that it did not have the authority to seal a personal protection order (PPO) pursuant to MCR 8.119(I)(6)).
“Any 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. MCR 2.119[19] governs the proceedings on such a motion or objection.” MCR 8.119(I)(9).
If a court grants a motion to seal a court record, the court must send a copy of the order to the Clerk of the Michigan Supreme Court and to SCAO. MCR 8.119(I)(7).
When a party files an appeal in a case where the trial court sealed the file, the file remains sealed while in the possession of the Court of Appeals. MCR 7.211(C)(9)(a). Any requests to view the sealed file will be referred to the trial court. Id. MCR 8.119(I) also governs the procedure for sealing a Court of Appeals file. MCR 7.211(C)(9)(c). “Materials that are subject to a motion to seal a Court of Appeals file in whole or in part must be held under seal pending the court’s disposition of the motion.”Id.
MCR 8.119(D) sets out procedures to protect the confidentiality of a sealed record:
“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) 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.”
See also MCR 2.518(C), which provides:
“Confidentiality. If the court retains discovery materials filed pursuant to MCR 1.109(D) or an exhibit submitted pursuant to [MCR 2.518] after a hearing or trial and the material is confidential as provided by law, court rule, or court order pursuant to MCR 8.119(I), the court must continue to maintain the material in a confidential manner.”
“The State Court Administrative Office [(SCAO)] shall establish and maintain records management policies and procedures for the courts, including a records retention and disposal schedule, in accordance with [S]upreme [C]ourt rules.” MCL 600.1428(1). “The record retention and disposal schedule shall be developed and maintained as prescribed in . . . MCL 399.5.” MCL 600.1428(1).
“Subject to the records reproduction act, . . . MCL 24.401 to [MCL] 24.406, a court may dispose of any record as prescribed in [MCL 600.1428(1)].” MCL 600.1428(2).
“A record, regardless of its medium, shall not be disposed of until the record has been in the custody of the court for the retention period established under [MCL 600.1428(1)].” MCL 600.1428(3).
MCR 8.119(K) provides:
“Retention Periods and Disposal of Court Records. For purposes of retention, the records of the trial courts include: (1) administrative and fiscal records, (2) case file and other case records, (3) court recordings, log notes, jury seating charts, and recording media, and (4) nonrecord material. The records of the trial courts shall be retained in the medium prescribed by MCR 1.109. The records of a trial court may not be disposed of except as authorized by the records retention and disposal schedule and upon order by the chief judge of that court. Before disposing of records subject to the order, the court shall first transfer to the Archives of Michigan any records specified as such in the Michigan trial courts approved records retention and disposal schedule. An order disposing of court records shall comply with the retention periods established by the [SCAO] and approved by the state court administrator, Attorney General, State Administrative Board, Archives of Michigan, and Records Management Services of the Department of Management and Budget, in accordance with MCL 399.811.”
For additional information on records management, and for links to records retention and disposal schedules, see SCAO’s Records Management website.
F.Access and Reproduction Fees20
“A court may not charge a fee to access public case history information or to retrieve or inspect a case document irrespective of the medium in which the record is retained, the manner in which access to the case record is provided (including whether a record is retained onsite or offsite), and the technology used to create, store, retrieve, reproduce, and maintain the case record.” MCR 8.119(J)(1). “A court may charge a reproduction fee for a document pursuant to MCL 600.1988, except when required by law or court rule to provide a copy without charge to a person or other entity.” MCR 8.119(J)(2). “The court may provide access to its public case records in any medium authorized by the records reproduction act, 1992 PA 116; MCL 24.401 to [MCL] 24.403.” MCR 8.119(J)(3).
“Reproduction of a case document means the act of producing a copy of that document through any medium authorized by the records reproduction act, 1992 PA 116; MCL 24.401 to [MCL] 24.403.
(a) A court may charge only for the actual cost of labor and supplies and the actual use of the system, including printing from a public terminal, to reproduce a case document and not the cost associated with the purchase and maintenance of any system or technology used to store, retrieve, and reproduce the document.
(b) If a person wishes to obtain copies of documents in a file, the clerk shall provide copies upon receipt of the actual cost of reproduction.
(c) Except as otherwise directed by statute or court rule, a standard fee may be established, pursuant to [MCR 8.119(H)(8)], for providing copies of documents on file.” MCR 8.119(J)(4).
“Every court, shall adopt an administrative order pursuant to MCR 8.112(B) to establish a policy for whether to provide access for records defined in [MCR 8.119(F), which include court recordings, log notes, jury searing charts, and media] and if access is to be provided, outline the procedure for accessing those records[.]” MCR 8.119(H)(8)(b). The administrative order must also set forth the reasonable cost of reproduction and specify the process for determining costs under [MCR 8.119(J)].” MCR 8.119(H)(8)(c)-(d).21
Committee Tip:
If the court decides to provide access to court recordings in its administrative order, the court should consider whether an audio copy of the court proceeding may be provided upon request, or if access to the recording will be limited to a certified transcript.
A trial court’s decision to permit public access to court documents is reviewed for an abuse of discretion, in light of the facts and circumstances of the particular case. Int’l Union, United Auto, Aerospace and Agricultural Implement Workers of America v Dorsey, 268 Mich App 313, 329 (2005), rev’d in part on other grounds 474 Mich 1097 (2006), citing Nixon v Warner Communications, Inc, 435 US 589, 599 (1978).