Legislature(2001 - 2002)
04/19/2001 01:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.