STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6470

October 1, 1987

STATE POLICE LAW ENFORCEMENT INFORMATION NETWORK (LEIN):

Access of friend of the court to LEIN

The friend of the court may have access to the Law Enforcement Information Network (LEIN) only if deputized by the county sheriff and then by requesting information through the county sheriff.

Mr. Jack Pooler

Executive Secretary

LEIN Policy Council

Department of State Police

714 S. Harrison Road

East Lansing, MI 48823

You have requested my opinion on whether the Friend of the Court Act, MCL 552.501 et seq; MSA 25.176(1) et seq, or the Support and Visitation Enforcement Act, MCL 552.601 et seq; MSA 25.164(1) et seq, provide a basis for a friend of the court to obtain access to the Law Enforcement Information Network (LEIN) or the National Crime Information Center (NCIC) files. Additionally, you have asked whether either the Letter opinion of the Attorney General (Sheriff Kenneth Preadmore, Chairman, LEIN Policy Council [March 19, 1980], or the Letter opinion of the Attorney General (Honorable John N. O'Brien, Sixth Circuit Judicial Court [May 27, 1981], has been affected by the adoption of these acts.

The Letter opinion addressed to Sheriff Kenneth Preadmore concluded that an office of the friend of the court may not be considered a criminal justice agency for the purpose of securing LEIN and NCIC Computerized Criminal History (CCH) files since its powers are civil in nature. The Letter opinion addressed to the Honorable John N. O'Brien stated that in order to obtain LEIN data and CCH records from LEIN and NCIC, office of the friend of the court personnel must be deputized by the county sheriff and must request and obtain such records from the county sheriff.

The Friend of the Court Act repealed 1919 PA 412, which established the office of the friend of the court. The purposes of the Friend of the Court Act are set forth in MCL 552.501(2); MSA 25.176(1)(2), as follows:

The Support and Visitation Enforcement Act repealed 1913 PA 239, which established penalties for failure to comply with orders to pay money for the support and maintenance of minor children. The purposes of the Support and Visitation Enforcement Act are expressed in its title:

The Friend of the Court Act revised and consolidated the laws relating to the office of the friend of the court. First, the Act establishes certain qualifications for candidates for the position of friend of the court and criteria for evaluating the performance of the friend of the court. MCL 552.523 and 552.524; MSA 25.176(23) and 25.176(24). Second, the Act provides for the appointment of a referee to hear certain motions, to make written reports to the court, and to perform related activities. MCL 552.507; MSA 25.176(7). Third, the Act expands the duties of the friend of the court to include providing an informational pamphlet to parties to a domestic relations matter, informing the parties of the availability of domestic relations mediation if there is a dispute as to child custody or visitation, investigating relevant facts and preparing written reports concerning child custody, visitation, and child support, receiving and disbursing all support payments, providing an annual accounting of said payments to each party to a domestic relations matter, enforcing all orders of the court concerning custody, visitation, and support, and establishing a system for initiating enforcement of support orders without awaiting complaints from the recipients of support. MCL 552.505, 552.509 and 552.511; MSA 25.176(5), 25.176(9) and 25.176(11). Fourth, the Act establishes a grievance procedure for parties to a domestic relations matter who are dissatisfied with operations at, or employees of, a friend of the court office. MCL 552.526; MSA 25.176(26).

The Support and Visitation Enforcement Act provides that each support order entered or modified after July 1, 1983 shall contain provisions for income withholding. MCL 552.604; MSA 25.164(4). In the event that a payer is found in contempt of court, any jail sentence is limited to 45 days for the first adjudication of contempt and 90 days for any subsequent adjudication of contempt. MCL 552.637; MSA 25.164(37). The Act also provides for make-up visitation upon a determination that a noncustodial parent was wrongfully denied visitation. MCL 552.642; MSA 25.164(42).

Upon review of the provisions of the Friend of the Court Act, MCL 552.501 et seq; MSA 25.176(1) et seq and the Support and Visitation Enforcement Act, MCL 552.601 et seq; MSA 25.164(1) et seq, it remains my opinion that the office of the friend of the court does not qualify as a "criminal justice agency" as that term is defined in 1981 AACS, R 28.5101(i) and in 28 CFR 20.3(c).

1981 AACS, R 28.5101(i), provides:

28 CFR 20.3(c) (1986) provides:

The office of the friend of the court is not a "court" as that term is used in the definition of a "criminal justice agency." Although the applicable rules and regulations do not define the term "court," 28 CFR 20, appendix subpart A--Sec. 20.3(c), p 301, states that the definitions of "criminal justice agency" and "administration of criminal justice" must be considered together. The office of the friend of the court is not authorized to engage in the administration of criminal justice and, therefore, is not a "court" as that term is used in the federal regulations. See, Shurbun v Hooper, 40 Mich 503 (1879), where the court stated that a court, as that word is used in the Constitution, is a permanent organization for the administration of justice. Webster's Third New International Dictionary, Unabridged Edition (1964), defines "justice" as the "administration of law: the establishment or determination of rights according to the rules of law or equity." In the case of In re Slattery, 310 Mich 458, 478; 17 NW2d 251, cert den 325 US 876; 65 S Ct 1553; 89 L Ed 1993 (1945), the court stated that when a judge sits in court, the words "court" and "judge" are used interchangeably. Therefore, it is my opinion that the use of the word "court" refers to judges and is not intended to extend to all personnel associated with a court.

Neither the Friend of the Court Act nor the Support and Visitation Enforcement Act authorizes the friend of the court to perform the administration of criminal justice. Nor do these Acts express an intent to have the friend of the court engage in any of the activities which constitute the "administration of criminal justice" as that term is defined in 1981 AACS, R 28.5101(b) and in 28 CFR 20.3(d), including the detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders and the collection, storage, and dissemination of criminal history record information. Additionally, unless the friend of the court allocates a substantial part of its annual budget to the administration of criminal justice, it does not come within the definition of a "criminal justice agency" as set forth in 1981 AACS, R 28.5101(i).

The duties of the office of the friend of the court are performed under the direction and supervision of the chief judge of the judicial circuit in which the office is located. MCL 552.503(5); MSA 25.176(3)(5). The friend of the court is empowered to take all necessary steps to adopt office procedures to implement the Friend of the Court Act, the rules of the Supreme Court, and the recommendations and policies of the state friend of the court administrative bureau. MCL 552.503(6) and 552.519; MSA 25.176(3)(6) and 25.176(19). Inasmuch as no criminal justice agency may exercise any management control of the office of the friend of the court, it follows that the office of the friend of the court does not qualify as an agency under the "management control" of a criminal justice agency as that term is defined in 1981 AACS, R 28.5103(a), which provides:

It is my opinion, therefore, that the enactment of the Friend of the Court Act and the Support and Visitation Enforcement Act has not changed the duties and responsibilities of the office of the friend of the court to such extent as would constitute the friend of the court as a criminal justice agency. It is further my opinion that nothing contained in either the Friend of the Court Act or the Support and Visitation Enforcement Act affects the respective Letter opinions to Sheriff Kenneth Preadmore and to Circuit Judge John N. O'Brien. It is my further opinion that Law Enforcement Information Network and National Crime Information Center file data may be obtained by only such friend of the court personnel as have been deputized by the county sheriff and who have requested such files through the county sheriff.

Frank J. Kelley

Attorney General