Rule 3.218.Friend of the Court Records; Access

Friend of the court files hold some of the most sensitive material in a domestic relations case, and MCR 3.218 takes the ordinary tool for prying records loose off the table. Subrule (A) states that friend of the court records are not subject to a subpoena issued under the Michigan Court Rules, and that unless another rule specifically provides for the protection or release of those records, this rule governs.

The three definitions that carry the rule

• Records means any case specific information the friend of the court office maintains, in any media.
• Access means inspection, obtaining copies on payment of reproduction costs, and oral transmission by staff of information contained in the records.
• Confidential information is a list in subrule (A)(3): staff notes; child protective services material and reports to protective services; records from alternative dispute resolution processes, including mediation records as defined in MCR 2.412; communications from minors; friend of the court grievances filed by the opposing party and the responses; anything a court order bars from release; anything privileged or supplied by a governmental agency on an express written condition of confidentiality, except as provided in MCR 3.219; and everything title IV, part D of the Social Security Act classifies as confidential.

Two tiers of access

Subrule (B) covers nonconfidential records, and the office must provide access to a party, a third-party custodian, a guardian or conservator, a guardian ad litem or counsel for a minor, a lawyer-guardian ad litem, an attorney of record, and the personal representative of a party's estate. The office may honor a request from one of those people to release information to a governmental agency that is providing services or has an application for services pending. Subrule (B)(2) adds one more recipient of nonconfidential records: an officer in the Judge Advocate General's office of any branch of the United States military, where the request is made on behalf of an active duty service member otherwise identified in the subrule.

Subrule (C) reaches both confidential and nonconfidential records, unless the release is otherwise prohibited by law. That tier serves the agencies and individuals needed to implement the state's plan under Title IV, Part D of the Social Security Act, the Department of Health and Human Services when reporting or investigating abuse or neglect or providing services, other Title IV-D service agencies, state and federal auditors, corrections, parole, and probation officers where the friend of the court believes access would help enforce a custody, parenting time, or support order, and law enforcement, meaning Michigan personnel investigating a matter related directly to the friend of the court case and federal officers acting under a federal subpoena.

Committees, outside records, and disputes

A citizen advisory committee established under the Friend of the Court Act, MCL 552.501 et seq., must be given a grievance and related nonconfidential information, and may be given confidential information if the court orders it after the committee shows the information is necessary to its duties and the release will not impair a party's rights or a child's well being. The parties get notice of the request and 14 days from the mailing date to file a written response.

Two practical valves close the rule. Subrule (E) lets the office decline access to a record it did not create or author and send the requester to whoever did. Subrule (F) gives anyone denied access the right to move for an order of access before the assigned judge, or the chief judge if none is assigned, and subrule (G) lets a court adopt reasonable regulations by administrative order under MCR 8.112(B) to protect the records and prevent unreasonable interference with the office's work.