Legislature(1999 - 2000)
03/07/2000 08:07 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 292-DISCLOSURE OF CRIMINAL HISTORY RECORDS Number 1716 CHAIR JAMES announced the next order of business is HOUSE BILL NO. 292, "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." KEN BISCHOFF, Director, Division of Administrative Services, Department of Public Safety (DPS), said he was speaking for HB 292 to provide some background. Like many state legislatures, he added, the Alaska State Legislature over the years has tried to address sensitive employment and licensing by authorizing background checks for the protection of children; this occurs for people working as school bus drivers, school teachers and day care center providers, and also occurs for the protection of dependent adults. He noted that AS 12.62 is the primary Alaska Statute regarding the release of criminal history record information. MR. BISCHOFF explained that there are two levels - state and national - to doing criminal history checks. Thus HB 292 proposes having Alaska adopt a national compact, which all 50 states in the near future plan to adopt to facilitate the exchange of national criminal history record checks for these purposes. He commented that the department currently does about 20,000 checks of this nature every year, so this is a fairly significant business. With adoption of the compact, he envisions that the department will also get some workload related to other states, just as those states will get some of Alaska's queries; therefore, it is a reciprocal exchange and agreement. He mentioned that it is a standard way of doing business nationally and will provide for much more complete national criminal history checks because a significant percentage of state-level information does not reside at the national level. For example, 40 percent of Oregon's criminal records are not indexed at the national level, and this compact would allow Alaska to get access to those additional records. MR. BISCHOFF indicated the Federal Bureau of Investigation (FBI) has a rule of thumb that approximately one in five criminals has a record in more than one state. He informed the committee that there are 55 million criminal records nationally. This compact, once adopted by the country, will link all 50 state criminal history record repositories and the FBI repository. He urged the committee's support for HB 292. Number 1560 CHAIR JAMES inquired as to the status of the other states in joining the compact. MR. BISCHOFF replied that as of January [2000], Montana, Nevada, Georgia, and Florida had ratified the compact. Half a dozen states are introducing legislation this year, and a larger number of states are slated to introduce legislation in 2001. He explained that he has personally been involved in this national compact issue since about 1988, and it has been in the works - being developed jointly with the FBI and various criminal justice information groups across the country - since the mid-1970s. Finally, he added, Congress passed the Crime Identification Technology Act a couple of years ago, and now some states are positioning themselves to adopt this national compact. Number 1490 CHAIR JAMES asked what cooperation Alaska has with Canada. MR. BISCHOFF replied that this compact will not affect criminal record checks for civil purposes. However, the department does have access to the Canadian police information system for law enforcement or criminal justice purposes, and the department exchanges motor vehicle, stolen property, missing persons, and wanted person information. REPRESENTATIVE GREEN asked how much return for the money the DPS will realize by joining the national compact. He also asked how the national compact differs from the parole compact currently being negotiated. Number 1411 MR. BISCHOFF answered that he is not familiar with the parole compact. However, the title indicates to him that it deals with criminal justice, while HB 292 speaks to a civil purpose; therefore, the two are not comparable. The DPS is trying to provide access to criminal history records for regulatory agencies and employers authorized by statute in order to screen employees and license applicants. MR. BISCHOFF pointed out that the department had submitted a zero fiscal note with HB 292. Already a fair amount of preparatory work has been done in regard to HB 292, and in the long run, cost to the agency will be a "wash." He noted that preliminary work has been necessary because nationally the criminal records data base is being decentralized. He explained that when the department receives a first-time arrest, the department submits a fingerprint card to the FBI; then the FBI runs a search in their system and a federal identification number will be established. The Interstate Identification Index (III) referred to by HB 292 will show the federal identification number and Alaska's identification number for that person. Consequently, if that person goes to Florida and commits a crime, the same process will repeat; however, a fingerprint card only has to be submitted once because the person's identification is in the III system. Anyone who queries the III system will know there is a record in Alaska and Florida on that person; therefore, some work will be saved and the benefit will be more complete, timely information. Number 1287 REPRESENTATIVE GREEN indicated he disagreed with Mr. Bischoff that there is no comparison between the parole compact and the III system because in both cases they are compacts for information from other states. He emphasized that whether a parolee is civil or criminal, there is information to be gained by belonging to a compact, but other states are not supporting the compact. He asked what kind of information the state is providing for a prospective employer that is not already available through the FBI. He said it seems that if the information is important, the FBI would already have it. MR. BISCHOFF acknowledged that since the early '60s the FBI has believed in keeping important information in a national database. However, the problem that evolved over time was one of workload and of human nature. Before the electronic age, people who were arrested went to a booking facility and were fingerprinted. Two or three sets of fingerprints were required - for the state system, the national system and the local arresting police department. He recognized that human beings being what they are, there were quality assurance problems: sometimes the second and third set of cards did not get created, and the best set of cards that came into the state repository was retained at the state level and often not forwarded to the FBI. As a consequence, the national repository is not complete. For example, before Oregon joined the III system, almost half of their records had not been indexed at the national level. Furthermore, five million California DWI records are not indexed and would be available only through a III system query to California. So, if the goal of HB 292 is to have a regulatory agency or employer make an informed decision, they need complete information, as provided by HB 292. Number 1089 REPRESENTATIVE GREEN said it sounds as if Alaska would provide all its information but Oregon and California have only half of their information available; thus Alaska is not getting quid pro quo. MR. BISCHOFF said that is exactly why the department wants to join the compact, because it will allow the department to search the databases of Washington, Oregon, Virginia and other states - an ability the department does not currently have. CHAIR JAMES asked how the department searches databases. MR. BISCHOFF replied that the department must be a member of the compact to search other state databases for civil purposes, and the department is hoping that the majority of states sign on to the compact because it is very important. Number 1026 REPRESENTATIVE SMALLEY noticed that certification of teachers is on the list of queries that could be made to the III system. He inquired as to the cost of joining the compact and whether there would be additional licensure fee increases as a result of these costs. MR. BISCHOFF answered that the department has submitted a zero fiscal note with HB 292 because there would be no immediate change in cost. Once implemented, it would be a break in terms of future cost increases. REPRESENTATIVE SMALLEY stated that he has been a certificated teacher for many years in the state, and when fingerprinting was required, teacher certification fees increased as a result of background checks. He asked if Mr. Bischoff was suggesting that later on there could be an additional increase as a result of costs. Number 0937 MR. BISCHOFF replied no, not as a result of implementing HB 292, because once a majority of the states are signed on to the national compact, it will allow the nation to process requests electronically. Currently, the department is required to do applicant searches for teacher certification, which entails preparing fingerprint cards, sending the cards by mail, tracking the cards, and waiting four to eight weeks for turnaround [results]. The FBI and the department are both upgrading their computer systems. Two years ago, the legislature had provided operating funding for the state to join the Western Identification Network. The department is in the process of completing that upgrade, which will allow them to electronically send fingerprints to the FBI; that in itself will be labor saving. Future cost increases depend on how the law changes, but information system improvements should dampen the need for cost increases. Number 0805 REPRESENTATIVE SMALLEY commented that there is a great deal of difference between an arrest and a conviction. He mentioned the book 1984 and said he saw this fear of "Big Brother" out there. MR. BISCHOFF replied that the key to managing [that fear] and the individual's right to privacy - which is in statute and the constitution at both the state and national levels - is carefully considered by the compact. People have the right to privacy, but what does the Division of Family and Youth Services (DFYS) do if a person has four arrests and no conviction? He suggested the way to guard against the scenario is to establish a body of law that the legislature passes giving the [DFYS] division access to private information. The [DFYS] division should only use the information for the purpose intended and not disseminate it for any other reason. MR. BISCHOFF commented that the [DFYS] division has to adopt its own statutes or regulations that govern that use. He believes information control should be governed through regulatory agencies in order to make sure that violations or inappropriate release of information does not happen and, if it does, there is a penalty. He reiterated that his department operates under AS 12.62 and there are penalties for inappropriate release. Number 0615 REPRESENTATIVE KERTTULA asked if the FBI currently tracks acquittals or accusations. MR. BISCHOFF answered that the FBI gets whatever the department provides to them. For example, when the department receives an arrest from the Anchorage Police Department (APD), the APD enters that information through its system and it comes to the DPS's system. Hopefully, the arrested person is taken to a booking facility where fingerprint cards are taken. Next, he added, the fingerprint cards are sent to his department so that the department can confirm the identity of that individual and update the criminal subsystem for the booking portion. Assuming all that information is complete, then an electronic message is sent to the FBI to update its national system; if the person is a first-timer, a fingerprint card is sent to the FBI also. Then later, going through the judicial process, the department receives court judgments in hard-copy form, which are entered into the [state electronic] system and [sent] on to the FBI to update its records. Number 0495 REPRESENTATIVE KERTTULA directed attention to page 4, Section 6, lines 13-17, saying it looks like the department would receive, under the compact, reports and accusations. She asked whether that broadens HB 292. MR. BISCHOFF replied that Section 6 was a definition to describe what determines criminal justice actions. REPRESENTATIVE KERTTULA asked if this is information that the department would receive. MR. BISCHOFF replied in the affirmative. REPRESENTATIVE KERTTULA asked if the department could receive information about accusations. Number 0382 MR. BISCHOFF answered that he did not see the word "accusation" in [Section 6]. However, an "accused person" is a person who has been arrested for a crime, so there would have to be a specific arrest and fingerprint card to support that. REPRESENTATIVE KERTTULA said [Section 6] also says that "criminal justice" includes activities relating to the detection ... of accused persons" and she wonders how that will work under HB 292. MR. BISCHOFF replied that primarily that would be through biometric identification, principally fingerprints. Number 0309 REPRESENTATIVE OGAN quoted from Governor Knowles' letter dated January 18, 2000, to Speaker Porter, as follows: "How do we achieve the delicate balance when releasing personal information between individual rights and the need to protect the public?" He asked for a definition of "individual rights" and how the department carefully walks the fine line. MR. BISCHOFF answered that he had prepared a summary of his remarks and quoted as follows: "House Bill 292 does not: change who has access to criminal justice information, state or national. Requestors of this information will still require a basis authorized in law to receive this information." In other words, he stated, unless the legislature gives authorization for release of information, the department will not release the information. REPRESENTATIVE OGAN reiterated that individual rights are guaranteed by the Alaska State Constitution but are not defined anywhere in statute as far as he knows. He said he believes in the fundamental civil right that a person is innocent until proven guilty. Consequently, a few areas in HB 292 trouble him. For example, he directed attention to page 4, line 2, relating to definitions of the compact, and quoted: "identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, or release ...." He noted that sentencing, correctional supervision or release means a person has been adjudicated, now has a record, and has been proven guilty of something. Nevertheless, under HB 292 a person is considered guilty just because he/she has been arrested, and Representative Ogan said he feels paranoia about the government keeping this long list of anybody who has ever been suspected of doing anything. TAPE 00-17, SIDE A Number 0107 MR. BISCHOFF replied that the only information that will be available through this compact is fingerprints, meaning that an arresting officer had to have probable cause to arrest a person, take them to booking facilities and get his/her fingerprints. This procedure is not based upon speculation. He noted that a standard has to be applied in order to make an entry into the system. It is true that not all arrested people are found guilty, and the record would reflect the court disposition, the judgment of "not guilty." Nationally, he explained, all criminal history systems retain [the court disposition] as a valid piece of criminal history information. Some states get a little more sophisticated for employment and licensing purposes in terms of sealing the record. He envisions that the legislature could consider sealing the record at some later time, after passing HB 292, but from a national standpoint, all 50 states have participated in development of the compact. He reiterated that the department would not be notating records with hearsay because the standard for HB 292 is fingerprint-based in order for the department to positively identify an individual. Number 0276 CHAIR JAMES said she resists having people held responsible for something for which they were arrested but not found guilty. She asked if there has ever been an instance when someone was arrested because of wrong identification. MR. BISCHOFF responded that in Alaska there are approximately 300,000 criminal records, and nationally there are 55 million. When discussing numbers like this, there has to have been an occasion where a misidentification has been made. Nevertheless, the opportunity in a court proceeding is to require verification, a new set of fingerprints if that is how the connection is being made. He commented that there is a path during the adjudication process to clear oneself of misidentification, and the department has had instances where relatives - brothers - have used each others' identifications in order to protect their own records. He mentioned that fingerprints are desirable because people use aliases, and the only thing that can bring 14 aliases together to one person is a common set of fingerprints. Fingerprints uniquely identify the person just as deoxyribonucleic acid (DNA) does. Number 0490 CHAIR JAMES said she was referring to actual skirmishes where everyone is arrested and it turns out that some in the group were victims as opposed to being perpetrators - instances where victims had been arrested but were released because their innocence had been proven. Number 0547 MR. BISCHOFF replied that the only way a criminal record will be updated in accordance with the standards set by this compact is if someone is arrested and a fingerprint card is submitted. In the rare instance where the preponderance of evidence is clear that this person was a passive bystander not involved in the skirmish, an appeal [for dismissal] has been made to the commissioner of the DPS. He informed the committee that the DPS gives the appeal to the Department of Law for review, and subsequently the DPS is directed to purge the record. He reiterated that AS 12.62 speaks to that issue. REPRESENTATIVE OGAN commented that in Mr. Bischoff's overview of HB 292 it says that this information will be used for civil purposes. Representative Ogan said he could understand justification in using electronic information for police officers to protect themselves from dangerous people, but he does not see justification for making all that information available for civil purposes, including [background checks relating to] members of the Bar [Alaska Bar Association], the Alaska Securities Act, assisted living homes, certification of teachers, child care, collection agencies, housing, school bus drivers and hospital security guards. He concluded that the legislature should just pass a bill called "The Omnibus Save Ourselves from Ourselves" and give the administration the authority to pass a regulation on anything by which people might hurt themselves. He said he foresees that this is where society is going, and citizens have constitutional protections against things like that. He agreed that if someone has been adjudicated and been through the process, then it is relevant to HB 292; otherwise, HB 292 violates at least the spirit of the constitution and civil rights. Number 0763 MR. BISCHOFF answered that the examples that he had illustrated are current Alaska law that the legislature has specifically authorized and determined a public need for, to screen individuals. If the legislature believes that the statutes continue to be necessary, it would follow that the state would like to do a complete, thorough check within reason; the compact allows the department to do this under common national standards. He reminded the committee that the department is not doing anything differently than the legislature envisioned but is doing a better job. Number 0854 REPRESENTATIVE OGAN remarked that sexual offenders have been adjudicated and convicted, and that is his point. He quoted from page 6, Article II(1), lines 20-22, as follows: "provide a legal framework for the establishment of a cooperative federal-state system for the interstate and federal-state exchange of criminal history records for noncriminal justice uses". He mentioned those civil uses he had just described and said that is where he has problems with HB 292. He further commented that page 11, Article VI(1), requires that the legislature appoint someone to the council. Therefore, he indicated, the fiscal note is wrong and should reflect the cost of fulfilling Article VI, which says, "each party state shall appoint a Compact officer who shall ...." He emphasized that he is tired of the administration producing bills with zero fiscal notes to avoid a Finance Committee referral. MR. BISCHOFF responded to the fiscal note issue by explaining that since the mid-1960s the department has employed a person to perform the equivalent function called a Control Terminal Officer that is associated with the Legacy system, the national crime information center. This same person will perform the job required by HB 292 because it is just relabeling and modernizing an existing system. Number 0989 REPRESENTATIVE OGAN directed attention to page 13, line 29, and quoted: "Nothing in this Compact shall diminish or lessen the obligations, responsibilities, and authorities of any state ...." Representative Ogan said he has seen similar language in the Alaska National Interest Lands Conservation Act (ANILCA), yet these saving clauses are not worth the paper they are written upon. CHAIR JAMES announced that HB 292 would be held over.
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