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. 5373 October 5, 1978 HOLMES YOUTHFUL TRAINEE ACT: Records of proceedings relative to youthful trainees RECORDS AND RECORDATION: Confidentiality of records pertaining to youthful trainees Records which are made confidential by the Holmes Youthful Trainee Act include the arrest and fingerprint records, the complaint, the warrant, police reports and other documents and transcripts generated as the result of an arrest and prosecution of a named youthful trainee. Each agency statutorily responsible for keeping and maintaining these records is subject to the provisions of the act regarding the confidentiality of the records involved. The Holmes Youthful Trainee Act does not prohibit the dissemination of confidential records of a youthful trainee to police agencies for the purpose of preparing a background report on the criminal history of an applicant for employment with that agency. Colonel Gerald L. Hough Director Department of State Police 714 S. Harrison Road East Lansing, Michigan 48823 You have requested my opinion on the interpretation of certain provisions of 1927 PA 175, Ch II, Sec. 14, as added by 1966 PA 301; MCLA 762.14; MSA 28.853(14) (1) which states: 'An assignment of a youth to the status of youthful trainee, as provided in this chapter, shall not be deemed to be a conviction of crime and such person shall suffer no civil disability, right or privilege following his release from such status because of such assignment as a youthful trainee. Unless such person shall be later convicted of the crime alleged to have been committed, referred to in section 1, all proceedings relative to the disposition of the criminal charge and to the assignment as youthful trainee shall be closed to public inspection, but shall be open to the courts of the state, the department of corrections, the department of social services and law enforcement personnel in the performance of their duties and such information may only be used for the performance of such duties.' (emphasis added) Your questions are: 1. What is meant by 'all proceedings relative to the disposition of the criminal charge'? 2. Who is to keep the records of the proceedings? 3. Are the fingerprints to be included as records of the proceedings? If so, is the Department of State Police to retain the fingerprint record? 4. May police agencies have access to these local records when requesting criminal checks on applicants for employment within a police department? 5. Several judges have issued court orders pertaining to individuals over 21 years of age and treat the records in the same manner as those under the Holmes Youthful Trainee Act. Must the State Police abide by these court orders? The statute was created to provide an alternative means within the criminal justice system to assist youthful offenders between the ages of 17 and 20. In People v Bandy, 35 Mich App 53, 58; 192 NW2d 115 (1971) leave to appeal denied 386 Mich 753 (1971), the Court of Appeals stated: 'We view this act as establishing an administrative procedure within criminal procedure exercisable prior to conviction at the discretion of the trial judge when requested to do so by the affected youth.' In the same opinion, the Court of Appeals stated a rule of construction for this specific Act: 'This is a remedial statute and should be construed liberally for the advancement of the remedy.' (citation omitted) Peopel v Bandy, 35 Mich App at 57. Nevertheless, it should be emphasized that the statute provides for the confidentiality of the records of the youthful trainee, not for the expungement of these records. Turning to your first question, I note that the Legislature has neither defined the phrase 'all proceedings' nor the phrase 'all proceedings relative to the disposition of the criminal charge . . ..' In absence of a legislatively ascribed definition to these terms, rules of statutory construction examination of the context of the whole act, and in their ordinary and common meaning. Sanchick v State Board of Optometry, 342 Mich 555, 559; 70 NW2d 757 (1955). The term 'proceeding' has been defined by Webster as follows: '. . . a record of the business transacted by a learned society or other organized group . . . legal action . . . the taking of legal action.' Webster's New World Dictionary, 2nd Edition, page 1133. Black's Law Dictionary has defined this term as follows: 'In a general sense, the form and manner of conducting juridicial business before a court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action from its commencement to the execution of judgment. (citation omitted) The proceedings of a suit embrace all matters that occur in its progress judicially. (citation omitted)' Black's Law Dictionary Revised Fourth Edition, page 1368. Thus the term 'proceedings' encompasses all matters brought before a court in a specific judicial action. When read in light of the background of the act in mind, it is seen that the legislature envisaged the term 'all proceedings' as meaning all matters filed by the people and the defendant, plus all decisions and orders of the judge in a specified criminal proceeding. Consequently, the term 'all proceedings' as it is used in the Act, would include, but not necessarily be limited to, the following items in a criminal prosecution: the arrest and fingerprint records, the complaint, the warrant, police reports and other documents and transcripts generated as the result of an arrest and prosecution of a particular youthful trainee. Your second question asks what agencies are responsible for keeping these records open to the courts. In my opinion, each agency statutorily responsible for keeping and maintaining these records is subject to the provisions of the Act regarding the confidentiality of the records involved. In answer to your third question, it is my opinion that fingerprint cards are included as records of proceedings. Consequently, the Department of State Police is required to retain them for purposes of examination by the parties designated by Sec. 14. In answer to your fourth question, it should be noted that the pertinent language of Sec. 14 states: 'An assignment of a youth to the status of youthful trainee, as provided in this chapter, shall not be deemed to be a conviction of crime and such person shall suffer no civil liability, right or privilege following his release from such status . . . unless such person shall be later convicted of the crime alleged to have been committed, referred to in section 1, all proceedings relative to the disposition of the criminal charge and to the assignment as youthful trainee shall be closed to public inspection, but shall be open to . . . law enforcement personnel in the performance of their duties and such information may only be used for the performance of such duties.' (emphasis added) 1966 PA 301, Sec. 14, supra. It is therefore necessary to consider whether requesting criminal checks on applicants for employment with a police department constitutes performance of the duties of law enforcement personnel. In today's complex society, law enforcement personnel are assigned a variety of duties, many of which are not directly associated with law enforcement. Many police agencies use individuals with the authority of a peace officer to perform purely administrative functions; among these functions is that of investigating the character and moral fitness of individuals who seek employment as peace officers. Consequently, it is my opinion that law enforcement personnel do act in the performance of their duties as that phrase is used in Sec. 14 of the Act when investigating the criminal history of individuals who apply for employment with a police agency. Therefore, it is my opinion that Sec. 14 does not prohibit the dissemination of the record of proceedings relative to the disposition of the criminal charge and to the assignment as a youthful trainee to a police agency for the purpose of preparing a background report upon the criminal history of an applicant for employment with that agency. In your fifth and final question, you state that, despite the fact that Sec. 11 states that the Act applies only where a youth is alleged to have committed a criminal act between his seventeenth and twentieth birthdays, several judges have issued court orders for individuals over the age of 21 which have ordered the Department of State Police to retain confidentiality of records in the same manner as is required by the Holmes Youthful Trainee Act. Although such an order may be contrary to the provisions of the statute, unless reversed by an appellate court, the orders of a court must be obeyed. Frank J. Kelley Attorney General (1)