Legislature(2001 - 2002)

04/19/2001 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 120 - DISCLOSURE OF CRIMINAL HISTORY RECORDS                                                                               
                                                                                                                                
Number 0109                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG announced  that the first order  of business would                                                               
be SPONSOR  SUBSTITUTE FOR HOUSE  BILL NO. 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."                                                                                                                
                                                                                                                                
Number 0123                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL,  speaking as the sponsor,  explained that                                                               
SSHB 120 authorizes Alaska to  join the National Crime Prevention                                                               
and  Privacy Compact  (NCPPC),  which is  a  compact that  allows                                                               
participating  states  and  the federal  government  to  exchange                                                               
information regarding  criminal history records  for non-criminal                                                               
purposes.   He added that  the exchange of this  information will                                                               
occur through  the Interstate Identification Index  (III) System.                                                               
He then mentioned that he  has concerns regarding privacy issues,                                                               
and would  therefore be  endeavoring to  make sure  that personal                                                               
information  cannot be  misused.   He  noted  that these  records                                                               
cannot  be acquired  without  the  subject's fingerprints,  which                                                               
must be  given voluntarily unless  he/she is incarcerated  at the                                                               
time of  the request.   The  NCPPC will  allow information  to be                                                               
shared  with   requestors  that  are  not   typically  considered                                                               
"criminal groups," he added.                                                                                                    
                                                                                                                                
REPRESENTATIVE  COGHILL  explained  that the  Federal  Bureau  of                                                               
Investigation  (FBI) does  not  always have  all  of a  subject's                                                               
criminal history  records that  would be  available at  the state                                                               
level;  hence,  by  acquiring the  information  directly  from  a                                                               
participating  state,  the  requestor  has  a  better  chance  of                                                               
obtaining  a subject's  entire  criminal  history record,  rather                                                               
than  simply  relying  on  what   is  available  from  the  FBI's                                                               
databank.  He noted that  [eight] states have already adopted the                                                               
NCPPC, and  that many more  are [considering  legislation similar                                                               
to  SSHB 120].   He  mentioned that  Alaska has  a lot  of people                                                               
moving in  and out of state,  and he reminded the  committee that                                                               
the state  requires that criminal background  checks be performed                                                               
on  people   who  work  with  vulnerable   adults  and  children.                                                               
Currently, this  sort of information  is only available  from the                                                               
FBI, and if  it did not have all the  pertinent information about                                                               
a  person who  moved to  Alaska from  a participating  state, any                                                               
criminal  background   check  done   on  that  person   would  be                                                               
incomplete.   With  the adoption  of the  NCPPC, the  information                                                               
could  be requested  directly  from that  other  state; not  only                                                               
would time be  saved, but the other state's  information might be                                                               
more detailed.                                                                                                                  
                                                                                                                                
REPRESENTATIVE COGHILL  noted that by adopting  the NCPPC, Alaska                                                               
would be submitting  to the provisions established  by the NCPPC;                                                               
it is his  understanding, however, that none  of these provisions                                                               
would change or "trump" Alaska's  laws but would, instead, merely                                                               
work within the framework of  current statute.  He explained that                                                               
adoption   of   SSHB   120   would   amend   Alaska's   "criminal                                                               
dissemination   laws,"  and   would   allow  "non-public   safety                                                               
entities" to receive criminal history information.                                                                              
                                                                                                                                
Number 0535                                                                                                                     
                                                                                                                                
KENNETH  E.  BISCHOFF,  Director,  Central  Office,  Division  of                                                               
Administrative  Services,  Department  of  Public  Safety  (DPS),                                                               
noted that the DPS strongly supports  SSHB 120.  He said that the                                                               
House had  passed similar  legislation last year  but it  did not                                                               
make it  completely through the  Senate.  He explained  that what                                                               
SSHB 120 does for civil purposes  is what law enforcement has had                                                               
available  to  it for  investigative  and  criminal purposes  for                                                               
approximately  35 years.    Under a  national  compact, SSHB  120                                                               
would allow entities, which are  expressly authorized or required                                                               
by the legislature, to make use  of the compact, through the DPS,                                                               
to produce  a substantially better, more  complete, accurate, and                                                               
timely criminal history report.   He noted that the DPS currently                                                               
does  over  20,000   fingerprint-based  criminal  history  checks                                                               
annually for such  items and entities as  foster parent licenses,                                                               
teacher certifications,  school bus  driver licenses,  child care                                                               
facilities,  security  guards,  assisted  living  homes,  nursing                                                               
homes, insurance  agencies, collections agencies, and  the Alaska                                                               
Bar Association.                                                                                                                
                                                                                                                                
MR. BISCHOFF explained  that the DPS, by statute,  is the central                                                               
repository  for criminal  history record  information from  which                                                               
these entities  receive this  information.   He said  the process                                                               
works thus:   fingerprints are presented  to the DPS with  a fee,                                                               
and  then  [the  DPS]  processes  a  "state-level  check"  and  a                                                               
"national check."   He said  that SSHB 120 recognizes  a national                                                               
initiative  to automate  criminal  history checks  and make  them                                                               
more streamlined  and more complete; nationally,  he added, there                                                               
are  approximately  60 million  criminal  records,  but about  40                                                               
percent of those  records exist only at the state  level (the FBI                                                               
has access to the remaining 60 percent).   In order to get at all                                                               
of  the  information, he  explained,  "we"  need  to be  able  to                                                               
participate as an  NCPPC member, so that as more  and more states                                                               
become  members  of the  NCPPC,  "we"  will  have access  to  all                                                               
participating states' information.   He noted that  SSHB 120 does                                                               
nothing to change  any of the authorizations  or requirements the                                                               
legislature  has passed.    What SSHB  120  essentially does,  he                                                               
said,  is  allow  the  DPS   to  use  the  "national  information                                                               
highway," and will make [the  DPS's] work more efficient and more                                                               
complete in terms  of serving the regulatory  agencies and others                                                               
that  the  legislature has  authorized  to  use criminal  history                                                               
information.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  OGAN asked  whether SSHB  120 in  any way  grants                                                               
authority to the NCPPC to enact  bylaws that would have the force                                                               
of law in participating states.                                                                                                 
                                                                                                                                
MR. BISCHOFF said no.                                                                                                           
                                                                                                                                
Number 0796                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN then  asked  whether financial  institutions                                                               
and  other private  institutions that  normally do  not get  this                                                               
kind of  information would have the  ability to do so  under SSHB
120.  He  expressed concern that financial  institutions would be                                                               
allowed  to request  criminal history  checks  simply to  process                                                               
loans.                                                                                                                          
                                                                                                                                
MR.  BISCHOFF responded  that  currently, financial  institutions                                                               
are not  authorized to  conduct criminal  history checks  on loan                                                               
applicants; he reiterated that SSHB  120 does not provide for any                                                               
additional authorizations.                                                                                                      
                                                                                                                                
REPRESENTATIVE COGHILL  added that a  previous version of  HB 120                                                               
did  contain  a  provision relating  to  financial  institutions,                                                               
which was removed from SSHB 120.                                                                                                
                                                                                                                                
REPRESENTATIVE  OGAN  mentioned  that in  the  [Matanuska-Susitna                                                               
area]  two  different teachers  have  had  sexual relations  with                                                               
students.  He  asked  whether  current  authorizations  could  be                                                               
expanded  to include  school districts  if  they weren't  already                                                               
capable of requesting criminal background checks from the DPS.                                                                  
                                                                                                                                
MR.  BISCHOFF replied  that school  districts are  already "major                                                               
clients";  they request  criminal  background  checks, some  more                                                               
often than  others.   He noted that  the Department  of Education                                                               
and  Early   Development  (EED)   is  required  by   statute  and                                                               
regulation to perform a  fingerprint-based criminal history check                                                               
upon a  person when he/she is  first certified as a  teacher.  He                                                               
added  that once  a teacher  is  employed by  a school  district,                                                               
policies regarding  criminal history  checks differ  among school                                                               
districts.                                                                                                                      
                                                                                                                                
CHAIR ROKEBERG  noted that restrictions  pertaining to  the title                                                               
of SSHB  120 would not  allow for either expansions  or deletions                                                               
to  the  list of  entities  that  have authorization  to  request                                                               
criminal history checks; SSHB 120  merely allows for the adoption                                                               
of the NCPPC.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  COGHILL asked  for further  explanation regarding                                                               
language on page 2, lines  19-27, which alters AS 12.62.160(b)(8)                                                               
and (9),  specifically that which  relates to,  "is nonconviction                                                           
information or correctional treatment information".                                                                         
                                                                                                                                
Number 1109                                                                                                                     
                                                                                                                                
DIANE  SCHENKER,  Criminal  Justice  Planner,  Anchorage  Office,                                                               
Division of Administrative Services,  Department of Public Safety                                                               
(DPS),  testified via  teleconference.   She explained  that this                                                               
change in language will prevent  nonconviction information - when                                                               
a  person  is  arrested  but not  convicted  -  and  correctional                                                               
treatment  information -  which, aside  from logistical  facility                                                               
information, may  include medical and/or psychiatric  treatment -                                                               
from  being  included in  the  criminal  history report  that  is                                                               
released  to any  person.   She  added, however,  that there  are                                                               
clauses in the  current law that allow  specialized authority for                                                               
different kinds of reports.                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG asked  why language  is  being removed  regarding                                                               
compromising the privacy of a minor or vulnerable adult.                                                                        
                                                                                                                                
MS  SCHENKER   offered  that   because  the   statute  explicitly                                                               
restricts  the release  of  any information  other  than what  is                                                               
specifically listed, there is no  likelihood that any information                                                               
regarding victims would be released;  thus the language regarding                                                               
minors and vulnerable adults is superfluous.                                                                                    
                                                                                                                                
REPRESENTATIVE  BERKOWITZ asked  whether  the information  [being                                                               
released]  would  include  a  person's  social  security  number,                                                               
address, and/or date of birth (DOB).                                                                                            
                                                                                                                                
MS. SCHENKER replied  that this information could  be included in                                                               
a standard criminal history report  [because] there is a category                                                               
called  identification information,  and  the DOB  is used  along                                                               
with the  name to identify a  person.  She added  that aliases as                                                               
well [could be released].                                                                                                       
                                                                                                                                
MR. BISCHOFF, in response to questions,  said that the NCPPC is a                                                               
national  compact,  and  it  took  three  states'  ratifying  the                                                               
compact to make it effective.                                                                                                   
                                                                                                                                
MS.  SCHENKER  added that  as  of  this  year, nine  states  have                                                               
adopted the NCPPC.                                                                                                              
                                                                                                                                
MR.  BISCHOFF, in  response to  questions  regarding the  current                                                               
procedure  for  sharing  information, explained  that  [the  DPS]                                                               
processes  any requests  for information  by doing  a state-level                                                               
check  and then  searching the  FBI's  files, which  have a  high                                                               
percentage of the nation's criminal  records but not all of them.                                                               
He  added that  the  search of  the  FBI's files  is  done via  a                                                               
dedicated  law enforcement  network,  which is  sponsored by  the                                                               
FBI.                                                                                                                            
                                                                                                                                
Number 1386                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL asked  for further  explanation regarding                                                               
language  on page  2, line  29, which,  to his  understanding, is                                                               
"lowering  the  bar"  for  information   relating  to  a  serious                                                               
offense.                                                                                                                        
                                                                                                                                
MS. SCHENKER explained  that under the current  law, the criminal                                                               
history reports that can be given  to a person in order to screen                                                               
people who are going to be  taking care of children or vulnerable                                                               
adults  are limited  to serious  offenses, which  are defined  in                                                               
statute.   In contrast,  SSHB 120  says that  the report  will be                                                               
able to  include all convictions.   She said that this  change is                                                               
prompted by  the fact  that in  the process  of trying  to define                                                               
which  statutory violations  are considered  serious, a  critical                                                               
violation may be missed.   She pointed out that another advantage                                                               
to this change is that  the list defining which information could                                                               
be released would not have to  be changed every time the criminal                                                               
statutes  are amended.   Also,  this change  ensures that  if the                                                               
offense is relevant to the  situation surrounding the request for                                                               
the information,  then the person  reviewing the report  can make                                                               
that  determination.   She confirmed,  in response  to questions,                                                               
that SSHB 120 authorizes [the  DPS] to include records containing                                                               
dispositions of "not guilty by reason of insanity."                                                                             
                                                                                                                                
CHAIR ROKEBERG  asked whether "interested  person" is  defined in                                                               
statute.                                                                                                                        
                                                                                                                                
MR. BISCHOFF said yes.                                                                                                          
                                                                                                                                
MS. SCHENKER  added that the  definition is located  elsewhere in                                                               
AS 12.62, and  means someone who is screening an  applicant for a                                                               
paid  or   unpaid  position  where   the  applicant   would  have                                                               
supervisory or  disciplinary power  over a  minor or  a dependant                                                               
adult;  she noted  that  a  dependant adult  is  also defined  in                                                               
statute.  She confirmed that not  just anybody can claim to be an                                                               
"interested  party" for  the purpose  of  obtaining the  criminal                                                               
history records of another person.                                                                                              
                                                                                                                                
CHAIR  ROKEBERG  asked  whether Section  2,  the  provision  that                                                               
stipulates the details of the NCPPC, can be altered.                                                                            
                                                                                                                                
MR.  BISCHOFF replied  that Section  2 has  to remain  intact and                                                               
cannot be altered in any way except via congressional action.                                                                   
                                                                                                                                
Number 1682                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL noted  that  the  references to  attorney                                                               
general on  page 9, lines  13 and  20, relate to  a federal-level                                                               
attorney general,  who will not  have the ability to  overturn or                                                               
rewrite Alaska statute.                                                                                                         
                                                                                                                                
MR.  BISCHOFF  added  that  nothing  in  Section  2  will  impact                                                               
anything  the  legislature  does;  the language  referred  to  by                                                               
Representative Coghill  merely indicates  that the  U.S. Attorney                                                               
General  has  a  standard  with  which  statutory  language  must                                                               
comport before allowing access to the national III system.                                                                      
                                                                                                                                
REPRESENTATIVE   BERKOWITZ  pointed   out   that  this   language                                                               
constitutes a  classic supremacy  clause, which mandates  that if                                                               
the federal government  has passed a particular  law, states must                                                               
abide by it.                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL  noted that there  is a provision  on page                                                               
15, line 16, that details the right of appeal.                                                                                  
                                                                                                                                
CHAIR ROKEBERG noted that the  sectional analysis makes reference                                                               
to the  Alaska Sex Offender  Registration Act in  connection with                                                               
the  release   of  conviction  information   after  unconditional                                                               
discharge.   He asked  what an  unconditional discharge  is, what                                                               
the timeframe is, and how that relates to the compact itself.                                                                   
                                                                                                                                
MR. BISCHOFF explained  that previously, the thought  was that at                                                               
some point, the criminal justice  system should know when someone                                                               
has  satisfied his/her  sentence  all the  way through  probation                                                               
release, and  that the person  would then  have no other  duty to                                                               
the criminal justice system.   However, it is simply not possible                                                               
to  calculate anyone's  unconditional discharge  date; therefore,                                                               
when an  interested person requests  information, [the  DPS] will                                                               
"give them everything."   For this reason, [the  language on page                                                               
2, lines  19-27] removes any  mention of restricting  the release                                                               
of information tied to an  unconditional discharge date.  He also                                                               
explained  that the  sex  offender registry,  by  itself, is  not                                                               
considered  part of  the criminal  history  record database  from                                                               
which [the DPS] releases information.                                                                                           
                                                                                                                                
Number 2013                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER  moved to report  SSHB 120 out  of committee                                                               
with individual recommendations and  the accompanying zero fiscal                                                               
note.  There  being no objection, SSHB 120 was  reported from the                                                               
House Judiciary Standing Committee.                                                                                             

Document Name Date/Time Subjects