January 29, 1998 98-R-0169
FROM: George Coppolo, Chief Attorney
RE: Erasure of Criminal Records
You asked whether the law regarding the erasure of criminal records has been amended during the past few years.
The legislature amended the law twice during 1996. PA 96-63 abolishes erasure and destruction requirements for certain court records and transcripts where the defendant was acquitted, or the case was dismissed or nolled. PA 96-79 prohibits the physical destruction of erased criminal records until three years after the underlying criminal case has been resolved.
PUBLIC ACT 96-63—AN ACT CONCERNING THE AVAILABILITY OF TRIAL TRANSCRIPTS
PA 96-63 abolishes erasure and destruction requirements for records and transcripts of court proceedings prepared by official court reporters, assistant court reporters, and monitors, except for cases in which the offense was later decriminalized. In general, under the Freedom of Information Act, the public has the right to view and obtain copies of court records and transcripts that are not erased.
The law continues to require erasure of police, prosecutorial, and other court records when the criminal case is dismissed or nolled, or the defendant is acquitted or granted an absolute pardon. It also requires erasure of police, prosecutorial, and all court records when the offense for which the defendant was convicted is later decriminalized. Generally, erased records are physically destroyed when defendants request it. Records erased due to decriminalization of an offense must be destroyed without a request.
Access to Erased Records
Erased records are generally not disclosed to anyone. But a court may order disclosure to (1) a defendant in an action for false arrest, (2) a state prosecutor and a defense attorney when the defendant faces perjury charges based on his trial testimony, or (3) crime victims within one year after final disposition of the criminal case.
PA 96-79—AN ACT CONCERNING THE PHYSICAL DESTRUCTION OF CERTAIN CRIMINAL RECORDS AND THE FURNISHING OF RECORDS OR TRANSCRIPTS OF COURT PROCEEDINGS
PA 96-79 prohibits anyone who retains and controls erased criminal records from physically destroying them until three years after the final disposition date of the underlying criminal case. Prior law required destruction of these records if the subject requested it, but did not establish the earliest date on which destruction could occur.
The act requires courts, at the request of the Judicial Review Council, to provide the council with records or transcripts prepared by court reporters, assistant court reports, or monitors. The council may request such records and transcripts when investigating allegations of misconduct by judges, compensation commissioners, or family support magistrates.
Erasure of Criminal Records
Police, court, and prosecutorial records must be erased when: (1) a criminal case is dismissed or nolled, (2) a defendant is acquitted or granted an absolute pardon, or (3) the offense for which the defendant was convicted is later decriminalized. Generally, erased records are physically destroyed only when defendants request it. Records erased due to the decriminalization of an offense must be destroyed without a request.