The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5032

April 14, 1977

MENTALLY DEFICIENT AND MENTALLY ILL PERSONS:

Fingerprints

RECORDS AND RECORDATION:

Fingerprints

In view of the fact that the statutory requirement that fingerprints of insane, feeble-minded or epileptic persons be made was repealed, the State Police may, in its discretion (1) retain records of the fingerprints and release them at the request of the person fingerprinted or his duly authorized representative, or (2) destroy these fingerprint records in compliance with statutory procedures for destruction of records.

Colonel George L. Halverson

Director

Michigan State Police

714 S. Harrison Road

East Lansing, Michigan 48823

You have requested my opinion regarding 1935 PA 86 as amended by 1973 PA 88, MCLA 28.261; MSA 28.1611. As originally enacted, 1935 PA 86, Sec. 1 provided:

'Any person entering into and each and every person now confined in any state institution for the insane, feeble-minded or epileptic or penal or correctional institution shall be required to have an impression of his finger prints made. It shall be the duty of the superintendent of the admitting or confining institution to see that the provisions of this section are complied with and that at least two [2] copies of the impression are made: One [1] for the files of the institution and the other to be forwarded to the bureau of identification of the department of public safety.'

As amended by 1973 PA 88, Sec. 1, the act now states:

'A person entering into and each and every person now confined in a penal or correctional institution shall be required to have an impression of his fingerprints made. It shall be the duty of the superintendent of the admitting or confining instutition to see that the provisions of this section are complied with and that at least 2 copies of the impression are made, 1 for the files of the institution and the other to be forwarded to the department of state police.'

Thus the requirement that the fingerprints of 'insane, febble-minded or epileptic' persons be made was eliminated.

Your letter requests my opinion on the following three questions:

1. Must the department retain the fingerprints submitted under the prior law for persons now excluded from the requirement by the amending statute?

2. If the department must retain these fingerprints, may the information be included in records released upon legitimate request?

3. If it is not necessary to retain the records, may the department destroy the records rather than awaiting piecemeal requests for return? If destroyed, a response of 'no record' would be given to any inquiry concerning such fingerprints.

Basically, the issue is whether current law gives persons fingerprinted under the former act the right to possession of their fingerprint cards upon request. If so, these records may not be destroyed.

In my opinion, there is no statutory or constitutional right to the return of fingerprints to the persons from whom they were taken. It should be noted that Michigan law provides for such action for certain persons accused of a crime if subsequently acquitted, MCLA 28.243; MSA 4.463. However, persons exempted by 1973 PA 88 have not been accused of violating state criminal statutes. Also, the new Mental Health Code has provided that fingerprints in the files of mental health recipients may be destroyed or returned to the recipient:

'Fingerprints or photographs in the record of a recipient, and copies thereof, shall be given to the recipient or destroyed when they are no longer essential in order to achieve 1 of the objectives set forth in subsection (2), or upon discharge of the recipient, whichever occurs first.' 1974 PA 258, MCLA 330.1724(5); MSA 14.800(724)(5) as amended 1975 PA 208.

Since this statute gives the Department of Mental Health discretion to destroy or return these fingerprints, I conclude that it does not give the parties in this case a statutory right to a return of these records.

In Winters v Miller, 446 F2d 65 (CA 2, 1971) cert den, 404 US 985 (1971), the court rejected plaintiff's challenge that New York statutes compelling fingerprinting and photography of mental patients violated her Fourth Amendment right to privacy, her Fifth Amendment right to due process, and her Fourteenth Amendment right to equal protection of the law.

The court simply noted, paraphrasing another opinion:

'Plaintiffs' contention that fingerprinting is an affront to their dignity and an invasion of their privacy is without substance. The day is long past when fingerprinting carried with it a stigma or any implication of criminality. Federal and state courts alike, in upholding fingerprinting requirements, have rejected any such view. . . . 'Fingerprinting is used in numerous branches of business and of civil service, and is not in itself a badge of crime."

I conclude therefore, that the Department of State Police may in its discretion:

(1) Retain fingerprint records and release them at the request of the person fingerprinted or his or her duly authorized representative, or

(2) Destroy these records in compliance with MCLA 18.13(a) et seq; MSA 3.516(13)(a), and MCLA 399.1 et seq; MSA 15.1801 et seq.

The first statute referred to states in pertinent part:

'The following procedures shall be followed for the authorized disposal or destruction of records: (1) the division of office services and the departments and agencies involved shall establish schedules governing disposal of records. Such schedules shall become effective upon the approval by the administrative board; (2) in accordance with the schedules established as provided above, the division shall annually or oftener submit a list of proposed records to be destroyed or disposed of to the secretary of the Michigan historical commission, who shall report in writing within 30 days to the division of office services on each of the lists submitted, and may disapprove the destruction or disposal of any or all records on said list when such records are deemed by him to possess sufficient historical value to warrant their continued retention and preservation; (3) upon receipt of the written report as provided above, the division of office services shall transfer to the Michigan historical commission all records deemed by its secretary to have historical value; (4) the division of office services shall submit a list of the records not so transferred to the state administrative board which shall approve or disapprove of this disposal or destruction. The division of office services may proceed forthwith to destroy or otherwise dispose of all records whose destruction or disposal is approved by the state administrative board; (5) the division of office services may from time to time prepare lists of records recommended for disposal or destruction in those cases where it is not possible or practicable to establish schedules governing records disposal, or where agreement on destruction or disposal cannot be reached with the appropriate agency head. Action on said lists and disposal or destruction, or retention and preservation of the records on said lists shall be undertaken in accordance with the procedures outlined in this section. MCLA 18.13c; MSA 3.516(13c)

Secondly, the Michigan Historical Commission Act states:

'The directing authority of each state, county, multi-county, school, municipal agency, department, board, commission and institution of government shall present to the commission a schedule governing disposal of, or a list or description of the papers, documents and other records which it shall certify are useless and which have ceased to be of value to the governmental agency and to its duties to the public, whereupon the commission shall inspect the papers, documents and other records and shall requisition for transfer from the directing authority to the commission, such papers, documents and other records as the commission shall deem to be of value. As soon as possible after the inspection by the commission and the transfer of records deemed to have value has been completed, the directing authority of the agency, department, board, commission and institution shall submit the schedule governing the disposal of, or the remainder of the list of such papers, documents and other records to the state administrative board, who shall approve or disapprove the disposal schedule or list and order the destruction of the valueless records accordingly. MCLA 399.5; MSA 15.805

If the Department of State Police desires to destroy these records, it must do so in conformity with the procedures established by MCLA 18.13c; MSA 3.516(13c), and MCLA 399.5; MSA 15.805.

Frank J. Kelley

Attorney General