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House lawmakers want birthdate to stay on court records; courts have other plans

Beth LeBlanc
The Detroit News

Lansing — Michigan House lawmakers are moving to preserve the listing of birthdates on court records even as state courts are years into the process of removing the information from public records. 

A bill discussed Wednesday in the House Judiciary Committee would preserve the status quo by prohibiting courts from redacting birth dates on public records so that background check companies can maintain ready access to those records for screenings.

The legislation comes as a Michigan Supreme Court administrative rule is set to go into effect Jan. 1, 2022 that would prohibit birth dates from being listed on public court records in an effort to limit identity theft. 

Representatives in The House raise their right hands as they swear the Oath of Office as the Michigan Legislature holds its first of the 101st session at the Michigan State Capitol building in Lansing, Wednesday, Jan. 13, 2021.

The redaction of birth dates on court records would create a "hell of a lot of collateral damage" in an effort to prevent access to information that can readily be found on the internet, said Rep. Graham Filler, the bill's sponsor and chairman for the House Judiciary Committee. 

Supporters of the legislation "believe this will blow up the background check process in Michigan and will harm applicants and also employers," said Filler, R-DeWitt. 

The bill has significant backing from business groups — including the Michigan Chamber of Commerce, the Professional Background Screening Association, the Michigan Health and Hospital Association, the Michigan Restaurant and Lodging Association, the Property Management Association of Michigan, Rocket Mortgage and the Michigan Association of State Universities.

The State Court Administrative Office testified in opposition to the bill Wednesday, noting it has already spent about 7,000 man hours and more than $400,000 to implement the rule. The implementation process came after the rules were subject to a year of public comment between 2018 and 2019, during which time no background check companies voiced opposition to the rule, said State Court Administrator Tom Boyd. 

Boyd pushed back on the concerns of the background check industry, noting the rules include a waiver process that would protect their access to court records. Companies also can use Michigan State Police's ICHAT system for background checks.

"We’re not blowing up the background check industry," Boyd said. "The whole point of the waiver is to say, 'I’m a background check industry person, tell me about their background.'”

After Wednesday's hearing, Boyd's office said it had attempted to work with background screening groups when they wanted to weigh in on the matter earlier this year, more than a full year after public comment had closed on the proposed rules. Their involvement comes "far too late" and the industry continues to insist on their "old business model," said SCAO spokesman John Nevin. 

Nevin said the courts remain committed to providing timely information to employers.

"But this bill misses the mark, in particular, by banning any redaction of name and date of birth," Nevin said. "That means when children in a divorce are named in a court document, along with their birth dates, that information couldn’t be redacted. Courts have a solution to the concerns raised by the background screening industry. They just need to be willing to use it.”

Businesses argued the rules would unintentionally cause delays at a time when worker shortages are affecting all industries. They also said the ICHAT system often included incomplete information, leaving out any pending court cases or misdemeanors that resulted in a less than 93-day sentence. 

"What is happening today is that, in advance of this delayed rule, courts are telling us in dozens of jurisdictions around Michigan that at SCAO’s suggestion that particular local court is now routing background research inquiries to ICHAT and is not confirming the traditional inquiry that they have in the past," said Jay Harris, of Consumers Data Industry Association.

"Some clerks tell us they've paused background check verification all together," he said. "Other local courts in Michigan say they no longer have access to date of birth information they used to."

Bon Idziak, of the Professional Background Screening Association, said the association had made "exhaustive attempts" to work on the issue with the State Court Administrative Office but he did not clarify whether those attempts were made after the public comment period had closed in 2019.

"SCAO has not been willing to work with us," Idziak said. "In fact, our last attempt to work with the office was just before this bill was introduced last week."

Filler on Wednesday noted that some might argue the Legislature's involvement in the matter violates separation of powers, but he argued the new rules were a big enough change that they merited policy debates in the policy-making body. Still, he cautioned businesses to pay closer attention to the promulgation of administrative rules.

"Maybe they learned a lesson that they need to pay attention when the Supreme Court makes court rules because apparently the impact is pretty massive," he said.