SCS CSHB 442(FIN) AM S: "An Act relating to criminal justice information; providing procedural requirements for obtaining certain criminal justice information; and providing for an effective date."
00SENATE CS FOR CS FOR HOUSE BILL NO. 442(FIN) am S 01 "An Act relating to criminal justice information; providing procedural requirements 02 for obtaining certain criminal justice information; and providing for an effective 03 date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 12.62 is amended by adding a new section to read: 06 Sec. 12.62.005. INTENT. It is the intent of the legislature that the department 07 administer the provisions of this chapter in a manner that protects victims of crime, 08 allows the proper administration of justice, and avoids vigilantism. 09 * Sec. 2. AS 12.62 is amended by adding new sections to read: 10 Sec. 12.62.100. CRIMINAL JUSTICE INFORMATION ADVISORY BOARD; 11 FUNCTIONS AND DUTIES. (a) The Criminal Justice Information Advisory Board 12 is established in the department. The board consists of the following members: 13 (1) a member of the general public appointed by and serving at the 14 pleasure of the governor;
01 (2) a municipal police chief appointed by and serving at the pleasure 02 of the governor; in making this appointment, the governor shall consult with the 03 Alaska Association of Chiefs of Police; 04 (3) the attorney general or the attorney general's designee; 05 (4) the chief justice of the supreme court or the chief justice's designee; 06 (5) the commissioner of administration or the commissioner's designee; 07 (6) the commissioner of corrections or the commissioner's designee; 08 (7) the commissioner of health and social services or the 09 commissioner's designee; 10 (8) the commissioner of public safety or the commissioner's designee, 11 who will serve as chair of the board; and 12 (9) the executive director of the Alaska Judicial Council or the 13 executive director's designee. 14 (b) Members of the board receive no compensation for services on the board, 15 but are entitled to per diem and travel expenses authorized for boards under 16 AS 39.20.180. 17 (c) The board shall meet at least once every six months. 18 (d) The board shall advise the department and other criminal justice agencies 19 on matters pertaining to the development and operation of the central repository 20 described in AS 12.62.110(1) and other criminal justice information systems, including 21 providing advice about regulations and procedures, and estimating the resources and 22 costs of those resources, needed to carry out the provisions of this chapter. 23 Sec. 12.62.110. DUTIES OF THE COMMISSIONER REGARDING 24 INFORMATION SYSTEMS. The commissioner shall 25 (1) develop and operate a criminal justice information system to serve 26 as the state's central repository of criminal history record information, and to collect, 27 store, and release criminal justice information as provided in this chapter; 28 (2) consult with the board established by AS 12.62.100 regarding 29 matters concerning the operation of the department's criminal justice information 30 systems; 31 (3) provide a uniform crime reporting system for the periodic
01 collection, analysis, and reporting of crimes, and compile and publish statistics and 02 other information on the nature and extent of crime in the state; 03 (4) cooperate with other agencies of the state, the criminal record 04 repositories of other states, the Interstate Identification Index, the National Law 05 Enforcement Telecommunications System, the National Crime Information Center, and 06 other appropriate agencies or systems, in the development and operation of an effective 07 interstate, national, and international system of criminal identification, records, and 08 statistics; and 09 (5) in accordance with AS 44.62 (Administrative Procedure Act), adopt 10 regulations necessary to implement the provisions of this chapter; in adopting the 11 regulations, the commissioner may consult with affected law enforcement agencies 12 regarding the fiscal implications of the regulations; regulations may not be adopted 13 under this section that affect procedures of the court system. 14 Sec. 12.62.120. REPORTING OF CRIMINAL JUSTICE INFORMATION. 15 (a) The commissioner, by regulation and after consultation with the board and affected 16 agencies, may designate which criminal justice agencies are responsible for reporting 17 the events described in (b) of this section. An agency designated under this subsection 18 shall report the events described in (b) of this section to the department, at the time, 19 in the manner, and in the form specified by the department. 20 (b) An agency designated under (a) of this section shall report the following 21 events to the department if they occur in connection with an arrestable offense: 22 (1) the issuance, receipt, withdrawal, quashing, or execution of a 23 judicial arrest warrant, a governor's warrant of arrest for extradition, or a parole arrest 24 warrant; 25 (2) an arrest, with or without a warrant, or an escape after arrest; 26 (3) the release of a person after arrest without charges being filed; 27 (4) the admittance to, release or escape from, or unlawful evasion of, 28 official detention in a correctional facility, either pretrial or post-trial; 29 (5) a decision by a prosecutor or a grand jury not to commence 30 criminal proceedings, to defer or indefinitely postpone prosecution, or to decline to 31 prosecute charges;
01 (6) the filing of a charging document, including an indictment, criminal 02 complaint, criminal information, or a petition or other document showing a violation 03 of bail, probation, or parole, or the amendment of a charging document; 04 (7) an acquittal, dismissal, conviction, or other disposition of charges 05 set out in a charging document described in (6) of this subsection; 06 (8) the imposition of a sentence or the granting of a suspended 07 imposition of sentence under AS 12.55.085; 08 (9) the commencement or expiration of parole or probation supervision; 09 (10) the commitment to or release from a facility, designated by the 10 Department of Health and Social Services, of a person who was previously accused 11 of a crime but who has been found to be incompetent to stand trial or found not 12 criminally responsible; 13 (11) the filing of an action in an appellate court or a federal court 14 relating to a conviction or sentence; 15 (12) a judgment of a court that reverses, remands, vacates, or reinstates 16 a criminal charge, conviction, or sentence; 17 (13) a pardon, reprieve, executive clemency, commutation of sentence, 18 or other change in the length or terms of a sentence by executive or judicial action; 19 and 20 (14) any other event required to be reported under regulations adopted 21 under this chapter. 22 Sec. 12.62.130. REPORTING OF UNIFORM CRIME INFORMATION. A 23 criminal justice agency shall submit to the department, at the time, in the manner, and 24 in the form specified by the department, data regarding crimes committed within that 25 agency's jurisdiction. The department shall compile, and provide to the governor and 26 the attorney general, an annual report concerning the number and nature of criminal 27 offenses committed, the disposition of the offenses, and any other data the 28 commissioner finds appropriate relating to the method, frequency, cause, and 29 prevention of crime. 30 Sec. 12.62.140. REPORTING OF INFORMATION REGARDING WANTED 31 PERSONS AND STOLEN PROPERTY. (a) A criminal justice agency shall report
01 to the department, at the time, in the manner, and in the form specified by the 02 department, data regarding 03 (1) a person the agency is trying to locate, whether that person is 04 wanted in connection with the commission of a crime, and the discovery, if any, of 05 that person; 06 (2) the theft, and recovery if any, of an identifiable motor vehicle; and 07 (3) the theft, and recovery if any, of identifiable property. 08 (b) A criminal justice agency, annually and at other times if requested by the 09 department, shall confirm whether information already reported under (a) of this 10 section continues to be valid, and shall cooperate with the department in periodic 11 audits to validate the information reported. 12 Sec. 12.62.150. COMPLETENESS, ACCURACY, AND SECURITY OF 13 CRIMINAL JUSTICE INFORMATION. (a) A criminal justice agency shall 14 (1) adopt reasonable procedures to ensure that criminal justice 15 information that the agency maintains is accurate and complete; 16 (2) notify a criminal justice agency known to have received information 17 of a material nature that is inaccurate or incomplete; 18 (3) provide adequate procedures and facilities to protect criminal justice 19 information from unauthorized access and from accidental or deliberate damage by 20 theft, sabotage, fire, flood, wind, or power failure; 21 (4) provide procedures for screening, supervising, and disciplining 22 agency personnel in order to minimize the risk of security violations; 23 (5) provide training for employees working with or having access to 24 criminal justice information; 25 (6) if maintaining criminal justice information within an automated 26 information system operated by a noncriminal justice agency, develop or approve 27 system operating procedures to comply with this chapter or regulations adopted under 28 this chapter, and monitor the implementation of those procedures to ensure that they 29 are effective; and 30 (7) maintain, for at least three years, and make available for audit 31 purposes,
01 (A) records showing the accuracy and completeness of 02 information maintained by the agency in a criminal justice information system; 03 and 04 (B) records required to be maintained under AS 12.62.160(c)(4). 05 (b) The department shall adopt reasonable procedures designed to ensure that 06 information about arrests and criminal charges that is stored in a criminal justice 07 information system can be linked with information about the disposition of those 08 arrests and charges. 09 (c) Every two years the department shall undertake an audit, and every four 10 years shall obtain an independent audit, of the department's criminal justice 11 information system that serves as the central repository and of a sample of other state 12 and local criminal justice information systems, to verify adherence to the requirements 13 of this chapter and other applicable laws. The department shall provide to the board 14 the final report of each audit. 15 Sec. 12.62.160. RELEASE AND USE OF CRIMINAL JUSTICE 16 INFORMATION; FEES. (a) Criminal justice information and the identity of 17 recipients of criminal justice information is confidential and exempt from disclosure 18 under AS 09.25. The existence or nonexistence of criminal justice information may 19 not be released to or confirmed to any person except as provided in this section and 20 AS 12.62.180(d). 21 (b) Subject to the requirements of this section, and except as otherwise limited 22 or prohibited by other provision of law or court rule, criminal justice information may 23 be released by a criminal justice agency as follows: 24 (1) an assessment or summary of criminal justice information may be 25 provided to a person when, and only to the extent, necessary to avoid imminent danger 26 to life or extensive damage to property; 27 (2) criminal justice information may be provided to a person to the 28 extent required by applicable court rules or under an order of a court of this state, 29 another state, or the United States; 30 (3) criminal justice information may be provided to a person if the 31 information is commonly or traditionally provided by criminal justice agencies in order
01 to identify, locate, or apprehend fugitives or wanted persons or to recover stolen 02 property, or for public reporting of recent arrests, charges, and other criminal justice 03 activity; 04 (4) criminal justice information may be provided to a criminal justice 05 agency for a criminal justice activity; 06 (5) criminal justice information may be provided to a government 07 agency to the extent necessary for enforcement of or for a purpose specifically 08 authorized by state or federal law; 09 (6) criminal justice information may be provided to a person 10 specifically authorized by a state or federal law to receive such information; 11 (7) criminal justice information in aggregate form may be released to 12 a qualified person, as determined by the agency, for criminal justice research, subject 13 to written conditions that assure the security of the information and the privacy of 14 individuals to whom the information relates; 15 (8) current offender information may be provided to a person for any 16 purpose, except that information may not be released if the release of the information 17 would unreasonably compromise the privacy of a minor or vulnerable adult; 18 (9) past conviction information may be provided to a person for any 19 purpose if less than 10 years has elapsed from the date of unconditional discharge to 20 the date of the request; 21 (10) past conviction information relating to a serious offense may be 22 provided to an interested person if the information is requested for the purpose of 23 determining whether to grant a person supervisory or disciplinary power over a minor 24 or dependent adult; and 25 (11) criminal justice information may be provided to the person who 26 is the subject of the information. 27 (c) Unless otherwise provided for in regulations adopted by the commissioner, 28 if access to criminal justice information is permitted under (b) of this section 29 (1) the information may be released only by the agency maintaining 30 that information; 31 (2) the information may not be released under this section without first
01 determining that the information is the most current information available within that 02 criminal justice information system, unless the system is incapable of providing the 03 most current information available within the necessary time period; 04 (3) the information may not be released under this section until the 05 person requesting the information establishes the identity of the subject of the 06 information by fingerprint comparison or another reliable means of identification 07 approved by the department; 08 (4) the information may not be released under this section unless the 09 criminal justice agency releasing the information records, and maintains for at least 10 three years, the name of the person or agency that is to receive the information, the 11 date the information was released, the nature of the information, and the statutory 12 authority that permits the release; and 13 (5) information released under this section may be used only for the 14 purpose or activity for which the information was released. 15 (d) Notwithstanding AS 09.25, a criminal justice agency may charge fees, 16 established by regulation or municipal ordinance, for processing requests for records 17 under this chapter, unless the request is from a criminal justice agency or is required 18 for purposes of discovery in a criminal case. In addition to fees charged under 19 AS 44.41.025 for processing fingerprints through the Alaska automated fingerprint 20 system, the department may charge fees for other services in connection with the 21 processing of information requests, including fees for contacting other jurisdictions to 22 determine the disposition of an out-of-state arrest or to clarify the nature of an 23 out-of-state conviction. The department may also collect and account for fees charged 24 by the Federal Bureau of Investigation for processing fingerprints forwarded to the 25 bureau by the department. The annual estimated balance in the account maintained by 26 the commissioner of administration under AS 37.05.142 may be used by the legislature 27 to make appropriations to the department to carry out the purposes of this chapter. 28 Sec. 12.62.170. CORRECTION OF CRIMINAL JUSTICE INFORMATION. 29 (a) A criminal justice agency shall correct, modify, or add an explanatory notation to 30 criminal history records that the agency is responsible for maintaining if the revision 31 is necessary to achieve accuracy or completeness.
01 (b) A person may submit a written request to the head of the agency 02 responsible for maintaining criminal justice information asking the agency to correct, 03 modify, or add any information or explanatory notation to criminal justice information 04 about the person that the person believes is inaccurate or incomplete. The decision of 05 the head of the agency is the final administrative decision on the request. 06 (c) The person requesting revision of criminal justice information may appeal 07 an adverse decision of the agency to the court under applicable rules of procedure for 08 appealing the decision of an administrative agency. The appellant bears the burden on 09 appeal of showing that the agency decision was in error. An appeal filed under this 10 subsection may not collaterally attack a court judgment or a decision by prison, 11 probation, or parole authorities, or any other action that is or could have been subject 12 to appeal, post-conviction relief, or other administrative remedy. 13 Sec. 12.62.180. SEALING OF CRIMINAL JUSTICE INFORMATION. (a) 14 Under this section, a criminal justice agency may seal only the information that the 15 agency is responsible for maintaining. 16 (b) A person may submit a written request to the head of the agency 17 responsible for maintaining past conviction or current offender information, asking the 18 agency to seal such information about the person that, beyond a reasonable doubt, 19 resulted from mistaken identity or false accusation. The decision of the head of the 20 agency is the final administrative decision on the request. 21 (c) The person requesting that the information be sealed may appeal an adverse 22 decision of the agency to the court under applicable rules of procedure for appealing 23 the decision of an administrative agency. The appellant bears the burden on appeal 24 of showing that the agency decision was clearly mistaken. An appeal filed under this 25 subsection may not collaterally attack a court judgment or a decision by prison, 26 probation, or parole authorities, or any other action that is or could have been subject 27 to appeal, post-conviction relief, or other administrative remedy. 28 (d) A person about whom information is sealed under this section may deny 29 the existence of the information and of an arrest, charge, conviction, or sentence shown 30 in the information. Information that is sealed under this section may be provided to 31 another person or agency only
01 (1) for record management purposes, including auditing; 02 (2) for criminal justice employment purposes; 03 (3) for review by the subject of the record; 04 (4) for research and statistical purposes; 05 (5) when necessary to prevent imminent harm to a person; or 06 (6) for a use authorized by statute or court order. 07 Sec. 12.62.190. PURGING OF CRIMINAL JUSTICE INFORMATION. (a) 08 A criminal justice agency may purge only the criminal justice information that the 09 agency is responsible for maintaining. An agency may determine when and what 10 information will be purged, under (b) of this section. 11 (b) Criminal justice information may be purged if the agency determines that 12 the information is devoid of usefulness to a criminal justice agency due to the 13 (1) death of the subject of the information; 14 (2) age of the information; 15 (3) nature of the offense or of the information; 16 (4) volume of the agency's records or other record management 17 considerations. 18 Sec. 12.62.200. CIVIL ACTION AND DEFENSE. (a) Failure to comply with 19 a requirement of this chapter or a regulation adopted under this chapter is not a basis 20 for civil liability, but may be the basis for employee discipline or administrative action 21 to restrict a person's or agency's access to information. However, a person whose 22 criminal justice information has been released or used in knowing violation of this 23 chapter or a regulation adopted under this chapter may bring an action for damages in 24 the superior court. 25 (b) It is a defense to a civil or criminal action based on a violation of this 26 chapter, or regulations adopted under this chapter, if a person relied in good faith upon 27 the provisions of this chapter or of other laws or regulations governing maintenance, 28 release, or use of criminal justice information, or upon policies or procedures 29 established by a criminal justice agency. 30 Sec. 12.62.900. DEFINITIONS. In this chapter, 31 (1) "agency" means a criminal justice agency;
01 (2) "automatic data processing" has the meaning given in AS 44.21.170; 02 (3) "board" means the Criminal Justice Information Advisory Board; 03 (4) "commissioner" means the commissioner of public safety; 04 (5) "complete" means that a criminal history record contains 05 information about the disposition of criminal charges occurring in the state and entered 06 within 90 days after the disposition occurred; 07 (6) "correctional treatment information" means information about an 08 identifiable person, excluding past conviction information or current offender 09 information, collected to monitor that person in a correctional facility or while under 10 correctional supervision, including the person's current or past institutional behavior, 11 medical or psychological condition, or rehabilitative progress; 12 (7) "criminal history record information" means information that 13 contains 14 (A) past conviction information; 15 (B) current offender information; 16 (C) criminal identification information; 17 (8) "criminal identification information" means fingerprints, 18 photographs, and other information or descriptions that identify a person as having 19 been the subject of a criminal arrest or prosecution; 20 (9) "criminal justice activity" means 21 (A) investigation, identification, apprehension, detention, pretrial 22 or post-trial release, prosecution, adjudication, or correctional supervision or 23 rehabilitation of a person accused or convicted of a crime; 24 (B) collection, storage, transmission, and release of criminal 25 justice information; or 26 (C) the employment of personnel engaged in activities described 27 in (A) or (B) of this paragraph; 28 (10) "criminal justice agency" means 29 (A) a court with criminal jurisdiction or an employee of that 30 court; 31 (B) a government entity or subdivision of a government entity
01 that allocates a substantial portion of its budget to a criminal justice activity 02 under a law, regulation, or ordinance; or 03 (C) an individual or organization obligated to undertake a 04 criminal justice activity under a written agreement with an agency described in 05 (A) or (B) of this paragraph; as used in this subparagraph, "organization" 06 includes an interagency or interjurisdictional task force formed to further 07 common criminal justice goals; 08 (11) "criminal justice information" means any of the following, other 09 than a court record, a record of traffic offenses maintained for the purpose of 10 regulating drivers' licenses, or a record of a juvenile subject to the jurisdiction of the 11 juvenile court under AS 47.10: 12 (A) criminal history record information; 13 (B) nonconviction information; 14 (C) correctional treatment information; 15 (D) information relating to a person to be located, whether or 16 not that person is wanted in connection with the commission of a crime; 17 (12) "criminal justice information system" means an automatic data 18 processing system used to collect, store, display, or transmit criminal justice 19 information, and that permits information within the system, without action by the 20 agency maintaining the information, to be directly accessed by another principal 21 department of the state, another branch of state government, an agency of another state 22 or the federal government, or by a political subdivision of a state or the federal 23 government; 24 (13) "current offender information" means information showing that an 25 identifiable person 26 (A) is currently under arrest for or is charged with a crime and 27 (i) prosecution is under review or has been deferred by 28 written or oral agreement; 29 (ii) a warrant exists for the person's arrest; or 30 (iii) less than a year has elapsed since the date of the 31 arrest or filing of the charges, whichever is latest;
01 (B) is currently released on bail or on other conditions imposed 02 by a court in a criminal case, either pretrial or post-trial, including the 03 conditions of the release; 04 (C) is currently serving a criminal sentence or is under the 05 custody of the commissioner of corrections for supervision purposes; "current 06 offender information" under this subparagraph includes 07 (i) the terms and conditions of any sentence, probation, 08 suspended imposition of sentence, discretionary or mandatory parole, 09 furlough, executive clemency, or other release; and 10 (ii) the location of any place of incarceration, halfway 11 house, restitution center, or other correctional placement to which the 12 person is assigned; or 13 (D) has had a criminal conviction or sentence reversed, vacated, 14 set aside, or has been the subject of executive clemency; 15 (14) "department" means the Department of Public Safety; 16 (15) "dependent adult" means an adult with a physical or mental 17 disability who requires assistance or supervision with the activities of daily living; 18 (16) "information" means, unless the context clearly indicates 19 otherwise, data compiled within a criminal justice information system; 20 (17) "interested person" means a person as defined in AS 01.10.060 that 21 employs, appoints, or permits a person to serve with or without compensation in a 22 position in which the employed, appointed, or permitted person has or would have 23 supervisory or disciplinary power over a minor or dependent adult; 24 (18) "nonconviction information" means information that an identifiable 25 person was arrested or that criminal charges were filed or considered against the 26 person and 27 (A) a prosecutor or grand jury has elected not to begin criminal 28 proceedings against the person and at least a year has elapsed since that 29 decision; 30 (B) criminal charges against the person have been dismissed or 31 the person has been acquitted and at least a year has elapsed since that action;
01 or 02 (C) there is no indication of the disposition of the criminal 03 charges or the arrest and at least a year has elapsed since the arrest, filing of 04 the charges, or referral of the matter for review by a prosecutor, whichever is 05 latest; 06 (19) "past conviction information" means information showing that an 07 identifiable person who has been unconditionally discharged has previously been 08 convicted of a crime; "past conviction information" includes 09 (A) the terms of any sentence, probation, suspended imposition 10 of sentence, or discretionary or mandatory parole; and 11 (B) information that a criminal conviction or sentence has been 12 reversed, vacated, set aside, or been the subject of executive clemency; 13 (20) "purge" means to delete or destroy information in a criminal 14 justice information system so that there can be no access to the information; 15 (21) "seal" means to retain information in a criminal justice information 16 system subject to special restrictions on access or dissemination; 17 (22) "serious offense" means a conviction for a felony offense or a 18 violation or attempted violation of any of the following laws, or of the laws of another 19 jurisdiction with substantially similar elements: 20 (A) AS 11.41.410 - 11.41.470; 21 (B) AS 11.51.130(a)(1), (3), or (5); 22 (C) AS 11.61.110(a)(7); 23 (D) AS 11.66.100 - 11.66.130; or 24 (E) former AS 11.40.080, 11.40.110, 11.40.130, or 11.40.200 - 25 11.40.420, if committed before January 1, 1980; 26 (23) "unconditional discharge" has the meaning given in AS 12.55.185. 27 * Sec. 3. AS 44.99.310(f) is amended to read: 28 (f) This section does not apply to criminal intelligence or criminal investigative 29 records, criminal justice information under AS 12.62, state agency personnel or 30 retirement system records, records of applicants for employment with the state agency, 31 or information in documents recorded under AS 40.17.
01 * Sec. 4. AS 12.62.010, 12.62.015, 12.62.017, 12.62.020, 12.62.030, 12.62.035, 12.62.040, 02 12.62.050, 12.62.060, 12.62.070; AS 18.65.060; and AS 44.41.040 are repealed. 03 * Sec. 5. TRANSITION. (a) Notwithstanding sec. 8 of this Act, an agency of the state 04 that has regulation adoption authority or that is authorized by this Act to adopt regulations, 05 may proceed to adopt regulations necessary to implement provisions in this Act that affect that 06 agency. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not 07 before July 1, 1995. 08 (b) Notwithstanding the repeal of AS 44.41.040 by sec. 4 of this Act, regulations 09 adopted under AS 44.41.040 and in effect on the effective date of sec. 4 of this Act remain 10 in effect until the effective date of regulations adopted under AS 12.62.160(d), added by sec. 11 2 of this Act. 12 * Sec. 6. APPLICABILITY. Notwithstanding sec. 8 of this Act, the mandatory reporting 13 requirements of AS 12.62.120 - 12.62.140, added by sec. 2 of this Act, and regulations 14 adopted under those statutes, are not applicable before July 1, 1996, to criminal activity that 15 does not constitute a felony offense. 16 * Sec. 7. Section 5 of this Act takes effect immediately under AS 01.10.070(c). 17 * Sec. 8. Sections 1 - 4 and 6 of this Act take effect July 1, 1995.