SSHB 120: "An Act adopting the National Crime Prevention and Privacy Compact; making criminal justice information available to interested persons and criminal history record information available to the public; making certain conforming amendments; and providing for an effective date."
00 SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 120 01 "An Act adopting the National Crime Prevention and Privacy Compact; making 02 criminal justice information available to interested persons and criminal history record 03 information available to the public; making certain conforming amendments; and 04 providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 12.62.160(b) is amended to read: 07 (b) Subject to the requirements of this section, and except as otherwise limited 08 or prohibited by other provision of law or court rule, criminal justice information 09 [MAY BE RELEASED BY A CRIMINAL JUSTICE AGENCY AS FOLLOWS:] 10 (1) [AN ASSESSMENT OR SUMMARY OF CRIMINAL JUSTICE 11 INFORMATION] may be provided to a person when, and only to the extent, 12 necessary to avoid imminent danger to life or extensive damage to property; 13 (2) [CRIMINAL JUSTICE INFORMATION] may be provided to a 14 person to the extent required by applicable court rules or under an order of a court of
01 this state, another state, or the United States; 02 (3) [CRIMINAL JUSTICE INFORMATION] may be provided to a 03 person if the information is commonly or traditionally provided by criminal justice 04 agencies in order to identify, locate, or apprehend fugitives or wanted persons or to 05 recover stolen property, or for public reporting of recent arrests, charges, and other 06 criminal justice activity; 07 (4) [CRIMINAL JUSTICE INFORMATION] may be provided to a 08 criminal justice agency for a criminal justice activity; 09 (5) [CRIMINAL JUSTICE INFORMATION] may be provided to a 10 government agency when [TO THE EXTENT] necessary for enforcement of or for a 11 purpose specifically authorized by state or federal law; 12 (6) [CRIMINAL JUSTICE INFORMATION] may be provided to a 13 person specifically authorized by a state or federal law to receive that [SUCH] 14 information; 15 (7) [CRIMINAL JUSTICE INFORMATION] in aggregate form may 16 be released to a qualified person, as determined by the agency, for criminal justice 17 research, subject to written conditions that assure the security of the information and 18 the privacy of individuals to whom the information relates; 19 (8) [CURRENT OFFENDER INFORMATION] may be provided to a 20 person for any purpose, except that information may not be released if the [RELEASE 21 OF THE] information is nonconviction information or correctional treatment 22 information [WOULD UNREASONABLY COMPROMISE THE PRIVACY OF A 23 MINOR OR VULNERABLE ADULT; 24 (9) PAST CONVICTION INFORMATION MAY BE PROVIDED 25 TO A PERSON FOR ANY PURPOSE IF LESS THAN 10 YEARS HAS ELAPSED 26 FROM THE DATE OF UNCONDITIONAL DISCHARGE TO THE DATE OF THE 27 REQUEST]; 28 (9) including [(10) PAST CONVICTION] information relating to a 29 serious offense, may be provided to an interested person if the information is 30 requested for the purpose of determining whether to grant a person supervisory or 31 disciplinary power over a minor or dependent adult; and
01 (10) [(11) CRIMINAL JUSTICE INFORMATION] may be provided 02 to the person who is the subject of the information. 03 * Sec. 2. AS 12 is amended by adding a new chapter to read: 04 Chapter 64. National Crime Prevention and Privacy Compact. 05 Sec. 12.64.010. Compact enacted. The National Crime Prevention and 06 Privacy Compact as contained in this section is enacted into law and entered into on 07 behalf of the State of Alaska with any other states legally joining in it in a form 08 substantially as follows: 09 The contracting parties agree to the following: 10 OVERVIEW 11 (a) In general. This Compact organizes an electronic information sharing 12 system among the federal government and the states to exchange criminal history 13 records for noncriminal justice purposes authorized by federal or state law, such as 14 background checks for governmental licensing and employment. 15 (b) Obligations of parties. Under this Compact, the FBI and the party states 16 agree to maintain detailed databases of their respective criminal history records, 17 including arrests and dispositions, and to make them available to the federal 18 government and to party states for authorized purposes. The FBI shall also manage 19 the federal data facilities that provide a significant part of the infrastructure for the 20 system. 21 ARTICLE I. DEFINITIONS 22 In this Compact, unless the context clearly requires otherwise: 23 (1) "attorney general" means the attorney general of the United States; 24 (2) "Compact officer" means 25 (A) with respect to the federal government, an official so 26 designated by the director of the FBI; and 27 (B) with respect to a party state, the chief administrator of the 28 state's criminal history record repository or a designee of the chief 29 administrator who is a regular full-time employee of the repository; 30 (3) "council" means the Compact Council established under Article 31 VI;
01 (4) "criminal history records" 02 (A) means information collected by criminal justice agencies 03 on individuals consisting of identifiable descriptions and notations of arrests, 04 detentions, indictments, or other formal criminal charges, and any disposition 05 arising therefrom, including acquittal, sentencing, correctional supervision, or 06 release; and 07 (B) does not include identification information such as 08 fingerprint records if such information does not indicate involvement of the 09 individual with the criminal justice system; 10 (5) "criminal history record repository" means the state agency 11 designated by the governor or other appropriate executive official or the legislature of 12 a state to perform centralized record keeping functions for criminal history records and 13 services in the state; 14 (6) "criminal justice" includes activities relating to the detection, 15 apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, 16 correctional supervision, or rehabilitation of accused persons or criminal offenders; the 17 administration of criminal justice includes criminal identification activities and the 18 collection, storage, and dissemination of criminal history records; 19 (7) "criminal justice agency" means 20 (A) courts; 21 (B) a governmental agency or any subunit thereof that 22 (i) performs the administration of criminal justice 23 pursuant to a statute or executive order; and 24 (ii) allocates a substantial part of its annual budget to 25 the administration of criminal justice; and 26 (C) federal and state inspectors general offices; 27 (8) "criminal justice services" means services provided by the FBI to 28 criminal justice agencies in response to a request for information about a particular 29 individual or as an update to information previously provided for criminal justice 30 purposes; 31 (9) "criterion offense" means any felony or misdemeanor offense not
01 included on the list of nonserious offenses published periodically by the FBI; 02 (10) "direct access" means access to the National Identification Index 03 by computer terminal or other automated means not requiring the assistance of or 04 intervention by any other party or agency; 05 (11) "executive order" means an order of the President of the United 06 States or the chief executive officer of a state that has the force of law and that is 07 promulgated in accordance with applicable law; 08 (12) "FBI" means the Federal Bureau of Investigation; 09 (13) "Interstate Identification Index System" or "III System" 10 (A) means the cooperative federal-state system for the 11 exchange of criminal history records; 12 (B) includes the National Identification Index, the National 13 Fingerprint File, and to the extent of their participation in such system, the 14 criminal history record repositories of the states and the FBI; 15 (14) "National Fingerprint File" means a database of fingerprints, or 16 other uniquely personal identifying information, relating to an arrested or charged 17 individual maintained by the FBI to provide positive identification of record subjects 18 indexed in the III System; 19 (15) "National Identification Index" means an index maintained by the 20 FBI consisting of names, identifying numbers, and other descriptive information 21 relating to record subjects about whom there are criminal history records in the III 22 System; 23 (16) "national indices" means the National Identification Index and the 24 National Fingerprint File; 25 (17) "nonparty state" means a state that has not ratified this Compact; 26 (18) "noncriminal justice purposes" means uses of criminal history 27 records for purposes authorized by federal or state law other than purposes relating to 28 criminal justice activities, including employment suitability, licensing determinations, 29 immigration and naturalization matters, and national security clearances; 30 (19) "party state" means a state that has ratified this Compact; 31 (20) "positive identification" means a determination, based upon a
01 comparison of fingerprints or other equally reliable biometric identification 02 techniques, that the subject of a record search is the same person as the subject of a 03 criminal history record or records indexed in the III System; identifications based 04 solely upon a comparison of subjects' names or other nonunique identification 05 characteristics or numbers, or combinations thereof, shall not constitute positive 06 identification; 07 (21) "sealed record information" means 08 (A) with respect to adults, that portion of a record that is 09 (i) not available for criminal justice uses; 10 (ii) not supported by fingerprints or other accepted 11 means of positive identification; or 12 (iii) subject to restrictions on dissemination for 13 noncriminal justice purposes pursuant to a court order related to a 14 particular subject or pursuant to a federal or state statute that requires 15 action on a sealing petition filed by a particular record subject; and 16 (B) with respect to juveniles, whatever each state determines is 17 a sealed record under its own law and procedure; 18 (22) "state" means any state, territory, or possession of the United 19 States, the District of Columbia, and the Commonwealth of Puerto Rico. 20 ARTICLE II. PURPOSES 21 The purposes of this Compact are to 22 (1) provide a legal framework for the establishment of a cooperative 23 federal-state system for the interstate and federal-state exchange of criminal history 24 records for noncriminal justice uses; 25 (2) require the FBI to permit use of the National Identification Index 26 and the National Fingerprint File by each party state, and to provide, in a timely 27 fashion, federal and state criminal history records to requesting states, in accordance 28 with the terms of this Compact and with rules, procedures, and standards established 29 by the council under Article VI; 30 (3) require party states to provide information and records for the 31 National Identification Index and the National Fingerprint File and to provide criminal
01 history records, in a timely fashion, to criminal history record repositories of other 02 states and the federal government for noncriminal justice purposes, in accordance with 03 the terms of this Compact and with rules, procedures, and standards established by the 04 council under Article VI; 05 (4) provide for the establishment of a council to monitor the III System 06 operations and to prescribe system rules and procedures for the effective and proper 07 operation of the III System for noncriminal justice purposes; and 08 (5) require the FBI and each party state to adhere to III System 09 standards concerning record dissemination and use, response times, system security, 10 data quality, and other duly established standards, including those that enhance the 11 accuracy and privacy of such records. 12 ARTICLE III. RESPONSIBILITIES OF COMPACT PARTIES 13 (a) FBI responsibilities. The director of the FBI shall 14 (1) appoint an FBI Compact officer who shall 15 (A) administer this Compact within the Department of Justice 16 and among federal agencies and other agencies and organizations that submit 17 search requests to the FBI pursuant to Article V(c); 18 (B) ensure that Compact provisions and rules, procedures, and 19 standards prescribed by the council under Article VI are complied with by the 20 Department of Justice and the federal agencies and other agencies and 21 organizations referred to in Article III(1)(A); and 22 (C) regulate the use of records received by means of the III 23 System from party states when such records are supplied by the FBI directly to 24 other federal agencies; 25 (2) provide to federal agencies and to state criminal history record 26 repositories, criminal history records maintained in its database for the noncriminal 27 justice purposes described in Article IV, including 28 (A) information from nonparty states; and 29 (B) information from party states that is available from the FBI 30 through the III System, but is not available from the party state through the III 31 System;
01 (3) provide a telecommunications network and maintain centralized 02 facilities for the exchange of criminal history records for both criminal justice 03 purposes and the noncriminal justice purposes described in Article IV, and ensure that 04 the exchange of such records for criminal justice purposes has priority over exchange 05 for noncriminal justice purposes; and 06 (4) modify or enter into user agreements with nonparty state criminal 07 history record repositories to require them to establish record request procedures 08 conforming to those prescribed in Article V. 09 (b) State responsibilities. Each party state shall 10 (1) appoint a Compact officer who shall 11 (A) administer this Compact within that state; 12 (B) ensure that Compact provisions and rules, procedures, and 13 standards established by the council under Article VI are complied with in the 14 state; and 15 (C) regulate the in-state use of records received by means of 16 the III System from the FBI or from other party states; 17 (2) establish and maintain a criminal history record repository, which 18 shall provide 19 (A) information and records for the National Identification 20 Index and the National Fingerprint File; and 21 (B) the state's III System-indexed criminal history records for 22 noncriminal justice purposes described in Article IV; 23 (3) participate in the National Fingerprint File; and 24 (4) provide and maintain telecommunications links and related 25 equipment necessary to support the services set forth in this Compact. 26 (c) Compliance with III System standards. In carrying out their 27 responsibilities under this Compact, the FBI and each party state shall comply with III 28 System rules, procedures, and standards duly established by the council concerning 29 record dissemination and use, response times, data quality, system security, accuracy, 30 privacy protection, and other aspects of III System operation. 31 (d) Maintenance of record services.
01 (1) Use of the III System for noncriminal justice purposes authorized 02 in this Compact shall be managed so as not to diminish the level of services provided 03 in support of criminal justice purposes. 04 (2) Administration of Compact provisions shall not reduce the level of 05 service available to authorized noncriminal justice users on the effective date of this 06 Compact. 07 ARTICLE IV. AUTHORIZED RECORD DISCLOSURES 08 (a) State criminal history record repositories. To the extent authorized by 09 section 552a of title 5, United States Code (commonly known as the "Privacy Act of 10 1974"), the FBI shall provide on request criminal history records (excluding sealed 11 records) to state criminal history record repositories for noncriminal justice purposes 12 allowed by federal statute, federal executive order, or a state statute that has been 13 approved by the attorney general and that authorizes national indices checks. 14 (b) Criminal justice agencies and other governmental or nongovernmental 15 agencies. The FBI, to the extent authorized by section 552a of title 5, United States 16 Code (commonly known as the "Privacy Act of 1974"), and state criminal history 17 record repositories shall provide criminal history records (excluding sealed records) to 18 criminal justice agencies and other governmental or nongovernmental agencies for 19 noncriminal justice purposes allowed by federal statute, federal executive order, or a 20 state statute that has been approved by the attorney general, that authorizes national 21 indices checks. 22 (c) Procedures. Any record obtained under this Compact may be used only for 23 the official purposes for which the record was requested. Each Compact officer shall 24 establish procedures, consistent with this Compact, and with rules, procedures, and 25 standards established by the council under Article VI, which procedures shall protect 26 the accuracy and privacy of the records, and shall 27 (1) ensure that records obtained under this Compact are used only by 28 authorized officials for authorized purposes; 29 (2) require that subsequent record checks are requested to obtain 30 current information whenever a new need arises; and 31 (3) ensure that record entries that may not legally be used for a
01 particular noncriminal justice purpose are deleted from the response and, if no 02 information authorized for release remains, an appropriate "no record" response is 03 communicated to the requesting official. 04 ARTICLE V. RECORD REQUEST PROCEDURES 05 (a) Positive identification. Subject fingerprints or other approved forms of 06 positive identification shall be submitted with all requests for criminal history record 07 checks for noncriminal justice purposes. 08 (b) Submission of state requests. Each request for a criminal history record 09 check utilizing the national indices made under any approved state statute shall be 10 submitted through that state's criminal history record repository. A state criminal 11 history record repository shall process an interstate request for noncriminal justice 12 purposes through the national indices only if such request is transmitted through 13 another state criminal history record repository or the FBI. 14 (c) Submission of federal requests. Each request for criminal history record 15 checks utilizing the national indices made under federal authority shall be submitted 16 through the FBI or, if the state criminal history record repository consents to process 17 fingerprint submissions, through the criminal history record repository in the state in 18 which such request originated. Direct access to the National Identification Index by 19 entities other than the FBI and state criminal history records repositories shall not be 20 permitted for noncriminal justice purposes. 21 (d) Fees. A state criminal history record repository or the FBI 22 (1) may charge a fee, in accordance with applicable law, for handling a 23 request involving fingerprint processing for noncriminal justice purposes; and 24 (2) may not charge a fee for providing criminal history records in 25 response to an electronic request for a record that does not involve a request to process 26 fingerprints. 27 (e) Additional search. 28 (1) If a state criminal history record repository cannot positively 29 identify the subject of a record request made for noncriminal justice purposes, the 30 request, together with fingerprints or other approved identifying information, shall be 31 forwarded to the FBI for a search of the national indices.
01 (2) If, with respect to a request forwarded by a state criminal history 02 record repository under paragraph (1), the FBI positively identifies the subject as 03 having a III System-indexed record or records 04 (A) the FBI shall so advise the state criminal history record 05 repository; and 06 (B) the state criminal history record repository shall be entitled 07 to obtain the additional criminal history record information from the FBI or 08 other state criminal history record repositories. 09 ARTICLE VI. ESTABLISHMENT OF A COMPACT COUNCIL 10 (a) Establishment. 11 (1) In general. There is established a council to be known as the 12 "Compact Council," which shall have the authority to promulgate rules and procedures 13 governing the use of the III System for noncriminal justice purposes, not to conflict 14 with FBI administration of the III System for criminal justice purposes. 15 (2) Organization. The council shall 16 (A) continue in existence as long as this Compact remains in 17 effect; 18 (B) be located, for administrative purposes, within the FBI; and 19 (C) be organized and hold its first meeting as soon as 20 practicable after the effective date of this Compact. 21 (b) Membership. The council shall be composed of 15 members, each of 22 whom shall be appointed by the attorney general, as follows: 23 (1) nine members, each of whom shall serve a two-year term, who 24 shall be selected from among the Compact officers of party states based on the 25 recommendation of the Compact officers of all party states, except that, in the absence 26 of the requisite number of Compact officers available to serve, the chief administrators 27 of the criminal history record repositories of nonparty states shall be eligible to serve 28 on an interim basis; 29 (2) two at-large members, nominated by the director of the FBI, each 30 of whom shall serve a three-year term, of whom 31 (A) one shall be a representative of the criminal justice
01 agencies of the federal government and may not be an employee of the FBI; 02 and 03 (B) one shall be a representative of the noncriminal justice 04 agencies of the federal government; 05 (3) two at-large members, nominated by the chair of the council, once 06 the chair is elected pursuant to Article VI(c), each of whom shall serve a three-year 07 term, of whom 08 (A) one shall be a representative of state or local criminal 09 justice agencies; and 10 (B) one shall be a representative of state or local noncriminal 11 justice agencies; 12 (4) one member, who shall serve a three-year term, and who shall 13 simultaneously be a member of the FBI's advisory policy board on criminal justice 14 information services, nominated by the membership of that policy board; 15 (5) one member, nominated by the director of the FBI, who shall serve 16 a three-year term, and who shall be an employee of the FBI. 17 (c) Chair and vice chair. 18 (1) In general. From its membership, the council shall elect a chair 19 and a vice chair of the council, respectively. Both the chair and vice chair of the 20 council 21 (A) shall be a Compact officer, unless there is no Compact 22 officer on the council who is willing to serve, in which case the chair may be 23 an at-large member; and 24 (B) shall serve a two-year term and be reelected to only one 25 additional two-year term. 26 (2) Duties of the vice chair. The vice chair of the council shall serve as 27 the chair of the council in the absence of the chair. 28 (d) Meetings. 29 (1) In general. The council shall meet at least once a year at the call of 30 the chair. Each meeting of the council shall be open to the public. The council shall 31 provide prior public notice in the Federal Register of each meeting of the council,
01 including the matters to be addressed at such meeting. 02 (2) Quorum. A majority of the council or any committee of the 03 council shall constitute a quorum of the council or of such committee, respectively, for 04 the conduct of business. A lesser number may meet to hold hearings, take testimony, 05 or conduct any business not requiring a vote. 06 (e) Rules, procedures, and standards. The council shall make available for 07 public inspection and copying at the council office within the FBI, and shall publish in 08 the Federal Register, any rules, procedures, or standards established by the council. 09 (f) Assistance from FBI. The council may request from the FBI such reports, 10 studies, statistics, or other information or materials as the council determines to be 11 necessary to enable the council to perform its duties under this Compact. The FBI, to 12 the extent authorized by law, may provide such assistance or information upon such a 13 request. 14 (g) Committees. The chair may establish committees as necessary to carry out 15 this Compact and may prescribe their membership, responsibilities, and duration. 16 ARTICLE VII. RATIFICATION OF COMPACT 17 This Compact shall take effect upon being entered into by two or more states as 18 between those states and the federal government. Upon subsequent entering into this 19 Compact by additional states, it shall become effective among those states and the 20 federal government and each party state that has previously ratified it. When ratified, 21 this Compact shall have the full force and effect of law within the ratifying 22 jurisdictions. The form of ratification shall be in accordance with the laws of the 23 executing state. 24 ARTICLE VIII. MISCELLANEOUS PROVISIONS 25 (a) Relation of Compact to certain FBI activities. Administration of this 26 Compact shall not interfere with the management and control of the director of the 27 FBI over the FBI's collection and dissemination of criminal history records and the 28 advisory function of the FBI's advisory policy board chartered under the Federal 29 Advisory Committee Act (5 U.S.C. App.) for all purposes other than noncriminal 30 justice. 31 (b) No authority for nonappropriated expenditures. Nothing in this Compact
01 shall require the FBI to obligate or expend funds beyond those appropriated to the 02 FBI. 03 (c) Relating to Public Law 92-544. Nothing in this Compact shall diminish or 04 lessen the obligations, responsibilities, and authorities of any state, whether a party 05 state or a nonparty state, or of any criminal history record repository or other 06 subdivision or component thereof, under the Departments of State, Justice, and 07 Commerce, the Judiciary, and Related Agencies Appropriation Act, 1973 (Public Law 08 92-544) or regulations and guidelines promulgated thereunder, including the rules and 09 procedures promulgated by the council under Article VI(a), regarding the use and 10 dissemination of criminal history records and information. 11 ARTICLE IX. RENUNCIATION 12 (a) In general. This Compact shall bind each party state until renounced by 13 the party state. 14 (b) Effect. Any renunciation of this Compact by a party state shall 15 (1) be effected in the same manner by which the party state ratified this 16 Compact; and 17 (2) become effective 180 days after written notice of renunciation is 18 provided by the party state to each other party state and to the federal government. 19 ARTICLE X. SEVERABILITY 20 The provisions of this Compact shall be severable, and if any phrase, clause, sentence, 21 or provision of this Compact is declared to be contrary to the constitution of any 22 participating state, or to the Constitution of the United States, or the applicability 23 thereof to any government, agency, person, or circumstance is held invalid, the 24 validity of the remainder of this Compact and the applicability thereof to any 25 government, agency, person, or circumstance shall not be affected thereby. If a 26 portion of this Compact is held contrary to the constitution of any party state, all other 27 portions of this Compact shall remain in full force and effect as to the remaining party 28 states and in full force and effect as to the party state affected, as to all other 29 provisions. 30 ARTICLE XI. ADJUDICATION OF DISPUTES 31 (a) In general. The council shall
01 (1) have initial authority to make determinations with respect to any 02 dispute regarding 03 (A) interpretation of this Compact; 04 (B) any rule or standard established by the council pursuant to 05 Article V; and 06 (C) any dispute or controversy between any parties to this 07 Compact; and 08 (2) hold a hearing concerning any dispute described in paragraph (1) at 09 a regularly scheduled meeting of the council and only render a decision based upon a 10 majority vote of the members of the council. Such decision shall be published 11 pursuant to the requirements of Article VI(e). 12 (b) Duties of the FBI. The FBI shall exercise immediate and necessary action 13 to preserve the integrity of the III System, maintain system policy and standards, 14 protect the accuracy and privacy of records, and to prevent abuses, until the council 15 holds a hearing on such matters. 16 (c) Right of appeal. The FBI or a party state may appeal any decision of the 17 council to the attorney general, and thereafter may file suit in the appropriate district 18 court of the United States, which shall have original jurisdiction of all cases or 19 controversies arising under this Compact. Any suit arising under this Compact and 20 initiated in a state court shall be removed to the appropriated district court of the 21 United States in the manner provided by section 1446 of title 28, United States Code, 22 or other statutory authority. 23 * Sec. 3. AS 12.62.900(24) is repealed. 24 * Sec. 4. This Act takes effect September 1, 2001.