Legislature(1999 - 2000)
03/29/2000 01:20 PM House JUD
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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 REPRESENTATIVE GREEN announced the next order of business would be 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." Number 0101 KENNETH E. BISCHOFF, Director, Central Office, Division of Administrative Services, Department of Public Safety (DPS), came before the committee to present the bill. The primary purpose of the bill is to adopt a national compact [the National Crime Prevention and Privacy Compact], which deals with criminal history record background checks. Over the years, the legislature has passed a number of statutes mandating background checks for employment and licensing purposes. He cited teachers, school bus drivers, and assisted living homes as examples. MR. BISCHOFF said that every state in the nation deals with the same issue when it comes to doing a national criminal history background check for these types of occupations. The presumption is that once it is important enough for the legislature to pass a law, the DPS should use the best information available. A national compact would allow the department to have access to more timely and complete criminal history records of other states. In order to do that, every state needs to agree to a common set of rules by which to exchange information. The adoption of this compact would do just that. Mr. Bischoff encouraged the committee members to support the bill. He noted that the department had submitted an amendment [Amendment 1] that would allow the Alcoholic Beverage Control Board to do a national background check on their licensed applicants. REPRESENTATIVE GREEN asked Mr. Bischoff what the compact will provide. MR. BISCHOFF replied there will be a national pointer system established as each state comes online at the FBI [Federal Bureau of Investigation] for civil purposes. The pointer system will establish a unique federal identification number that will indicate which states have information on a particular individual. It will allow the department to electronically query the system and go directly to each state to get background information. Number 0231 REPRESENTATIVE GREEN asked Mr. Bischoff how this can be done with a zero fiscal note. MR. BISCHOFF replied that as the system develops, there will be an additional workload, but the trade-off is that for every arrest, each state is required to send a duplicate set of fingerprints to the FBI. Under this system, a first-time arrest card will be sent only once. And once a federal identification number has been established, the department will not have to send any future cards because they will be able to make an identification locally and update the record accordingly. He noted that it costs about $30,000 for criminal arrest cards a year. Number 0278 REPRESENTATIVE GREEN asked Mr. Bischoff whether the department gets a lot of "hits" now from other states for information. MR. BISCHOFF replied that about two years ago the legislature appropriated money to the DPS to upgrade their fingerprinting system, which allowed them to combine their system with those of six other western states. After the first year of operation and searching the database, approximately 75 percent of the identifications were made using other states' records. Number 0314 REPRESENTATIVE GREEN noted that earlier in the session it was suggested that Alaska might become a member of an interstate parole-type compact, but the idea fell on deaf ears. He asked Mr. Bischoff how this compact is different. MR. BISCHOFF replied that even though this is a national compact, all 50 states had participated in drafting the language, getting it through the President's office and submitting it to Congress for adoption. Furthermore, the mechanics of this system already exist for law enforcement purposes, and it is being used by all 50 states now. The compact puts in place the rules to allow it to be used uniformly for civil purposes. Number 0401 REPRESENTATIVE KERTTULA asked Mr. Bischoff to expand on what type of information an agency or employer would get with the inclusion of arrest information without court dispositions and information beyond the ten-year unconditional discharge date. MR. BISCHOFF explained that several years back, with the help of the legislature, the department completely updated AS 12.62 by including model language from national groups. The term "unconditional discharge date" is a fairly common term, but in Alaska it is a very difficult date to calculate. He noted that the Department of Corrections manually calculates the date and is moving towards automating the calculation with their new computer system. The reason for the change is because the state conducts 20,000 fingerprint-based applicant checks a year for employment and licensing purposes, and the department would have to submit a major fiscal note - and the process would slow down - if they couldn't just give the regulatory agencies or authorized employers the complete record. Number 0465 REPRESENTATIVE KERTTULA asked Mr. Bischoff to explain what "unconditional discharge" would indicate to someone requesting this type of information. MR. BISCHOFF replied that unconditional discharge means that a person has served his incarceration time, is released on probation or parole, and is being monitored. It would indicate the date that the person no longer has to report to a probation officer. He reiterated that calculating the date is not a straightforward process. Number 0501 REPRESENTATIVE KERTTULA stated concern that it might mean that after a period of time the record is gone, similar to a suspended imposition. She asked Mr. Bischoff to explain the kinds of arrest information. MR. BISCHOFF replied that Section 3 of the bill updates the list of what is considered a serious offense. REPRESENTATIVE KERTTULA asked Mr. Bischoff whether a description about an arrest is included, such as information on a mistaken arrest. MR. BISCHOFF replied that the criminal history report would include the arrest card, the arresting agency, and the results of the fingerprint search. The system currently does not include information from the prosecutor, so it usually requires a court disposition to update the record indicating innocence or guilt. The nature of information that a regulatory or employer needs varies. When it comes to dealing with children, for example, a person may have four or five arrests but no convictions, which is information that may be very helpful to the Division of Family & Youth Services; setting a filter that denies them that type of information is not good public policy. The department would prefer to put the burden on the regulatory agency to decide what is relevant information because it is truly their decision. Moreover, he doesn't think that it is appropriate for his staff to make policy decisions for regulatory agencies. Number 0627 REPRESENTATIVE KERTTULA asked Ms. Langdon what type of arrest information the Division of Family & Youth Services gets. Number 0651 GLADYS LANGDON, Children Services Manager, Anchorage Region, Family Services, Division of Family & Youth Services, Department of Health & Social Services, came before the committee to answer Representative Kerttula's question. The division gets an arrest record and can get a criminal history. It is very important that they have access to the complete record, even beyond the ten-year period. She also noted that federal funding is dependent upon the division having access to these types of records. Number 0670 REPRESENTATIVE KERTTULA stated, then, that it is the division's job to figure out if the arrests indicate anything or not. She asked Ms. Langdon whether she has seen circumstances where it was just an arrest that kept a person from being able to get a license. MS. LANGDON replied no. Number 0691 REPRESENTATIVE GREEN asked Mr. Bischoff how the department knows who needs a record check. Is it just for the employer who wants to know about a particular person? MR. BISCHOFF replied that the legislature has established which regulatory agencies need a background check. The department lets the regulatory agencies drive the request process, which equates to 20,000 [requests] a year. The department first searches their records, and any qualifying offense is communicated to the regulatory agency. If they don't get an identification, they then ship the request to the FBI via the mail. When the system is updated, he noted, the request will be sent via an electronic transfer, which will allow for a quicker turnaround time. REPRESENTATIVE GREEN asked Mr. Bischoff whether there is a charge. MR. BISCHOFF replied yes, there is a $35 in-state charge, and the FBI charges $24 for a national check. REPRESENTATIVE GREEN commented that it is self-funding. Number 0778 REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether this is the system that state employees had accessed a couple of years ago, which had created some controversy. MR. BISCHOFF replied that there was controversy surrounding the use of the Alaska Public Safety Information Network, which is interfaced to the national system. The bill, he noted, deals with the national system. REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether there is a separation between the two. MR. BISCHOFF replied, "Yes." REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether he can assure the committee members the abuses that may have taken place before will not take place again. MR. BISCHOFF replied that his staff, as a result of the controversy, has implemented a whole host of edits, to notify security if certain records are run against certain public officials. An audit function has also been implemented. There is no way, however, that he can guarantee 100 percent that this will never occur again. But there are better tools to work with and a keener sensitivity of the issue now. Number 0837 REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether any of the agencies can get into that information. MR. BISCHOFF replied that the only way a person can query the compact for information is if there is a set of fingerprints, and the applicant has to agree to a set of fingerprints. The only authorized agency in the state to run a check is the Criminal Investigations Unit [DPS] in Anchorage. In other words, there won't be 22,000 users querying the system for this type of information. REPRESENTATIVE ROKEBERG surmised that it is [Mr. Bischoff's] staff that does the work for these agencies that have justified their request. MR. BISCHOFF affirmed that. REPRESENTATIVE GREEN indicated that, in itself, should make a major difference. REPRESENTATIVE ROKEBERG asked Mr. Bischoff how this system will interface with the court's computer system. It is his understanding that the court system has an antiquated computer system, he added. MR. BISCHOFF replied that the DPS speaks in favor of the capital request from the court system to update their computer system. Currently, he explained, that the DPS receives court dispositions in the mail and manually enters the information. Once the court system is automated the information will be transferred electronically. He further explained that when an individual is booked by the Department of Corrections and fingerprinted using a live scan machine, the information is sent to the DPS, at which time staff processes the information through the Western Identification Network to verify the person's identity. Upon identification, staff updates the person's criminal history record in the Alaska Public Safety Information Network, and if it is a criteria offense, staff updates the national FBI system. REPRESENTATIVE ROKEBERG stated that the courts are not hooked up electronically. MR. BISCHOFF concurred. Number 0971 REPRESENTATIVE LISA MURKOWSKI commented that according to her understanding there are only a few states that have signed on to the compact. She asked Mr. Bischoff what would happen if the other states do not sign on to the idea. As she understands, it is just an exchange of information between those states who have access to the compact, she added. MR. BISCHOFF replied that the information from the 50 states that the FBI has converted would be available through the system. The states that do not adopt the compact would continue to send cards to the FBI, and that information would be available through the system. But, as more and more states join in the compact, Alaska would have access to records that are not forwarded to the FBI. He cited that as much as 40 percent of the criminal history records for the state of Oregon are not indexed with the FBI, so when they sign up for the compact Alaska would have access to those records. Oregon, he noted, is part of the Western Identification Network, a consortium of seven western states and a reason why Alaska gets a 75-percent hit rate on out-of-state records. He also said many drunk driving offenses in California are fingerprinted but not forwarded to the FBI, so when they sign up for the compact, Alaska would have access to those records. He noted that four states have adopted the compact, six states are going through the process of adopting the compact, and many states are considering going through the process next year. He hopes that in about five to six years a majority of the states would be onboard. Number 1110 REPRESENTATIVE MURKOWSKI asked Mr. Bischoff whether Alaska would still have access to certain information from a state that does not sign on to the compact. In that way, there is still a networking system that does not go away. MR. BISCHOFF answered, "Correct." Number 1129 REPRESENTATIVE GREEN asked Mr. Bischoff whether the states that sign on to the compact would go directly to Alaska for information, while the rest of the states that do not sign on to the compact would go through the FBI. MR. BISCHOFF affirmed that. Number 1145 REPRESENTATIVE MURKOWSKI asked Mr. Bischoff whether there is any financial incentive for the states to sign on to the compact. MR. BISCHOFF replied that there is a trade-off to signing on to the compact. The department has submitted a zero fiscal note because even though there would be additional work, the system would reduce the number of fingerprint cards that would have to be forwarded to the FBI. The department believes that it would be a "wash." Number 1200 LINDA KESTERSON, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, testified via teleconference from Anchorage in relation to the amendment to include the Alcoholic Beverage Control Board. The compact, she said, recognizes that there are non-criminal reasons for a criminal background check, and that there are a number of governmental entities that have the ability in statute to collect that type of information, as Mr. Bischoff has indicated. The federal law specifically requires that there is a state statute authorizing these types of national background check. The amendment, therefore, would change Title 4 to give the Alcoholic Beverage Control Board the authority to require an applicant to submit a fingerprint, which would then be submitted to the DPS for a criminal background check. Without that, she said, the board can only conduct an Alaska criminal background check, which eliminates a lot of useful information to the board in determining whether or not an applicant is a proper applicant for a liquor license. Number 1319 DOUG GRIFFIN, Director, Alcoholic Beverage Control Board, testified via teleconference from Anchorage in support of the amendment to include the Alcoholic Beverage Control Board. This is a very high priority for the board. It is deemed as a good step in preventing a problem of somebody holding a liquor license who has a criminal background. The board may not be aware of someone's criminal background given the present system. It makes sense for an efficient government, for it's a lot more expensive to try and remediate a problem with a licensee with a criminal background who shows irresponsibility in running his business than it is to prevent a problem. The board hopes that the amendment is adopted and that the bill moves forward. Number 1380 REPRESENTATIVE KERTTULA asked what kind of authority the board has now before issuing a liquor license. Can the board look at arrests? How does the board screen out information that the board doesn't have authority to review? MR. GRIFFIN replied this is for non-criminal purpose. The issuance of a liquor license. The board has some authority to use the database when dealing with a criminal investigation, which is not all that often. For non-criminal purposes, the board has been submitting fingerprint cards to the DPS who then reviews them for any criminal conviction within the state. That information is forwarded to the board for consideration, and the applicant is given an opportunity to discuss the information with the board in an executive session. The information is treated as confidential. Number 1490 REPRESENTATIVE KERTTULA stated that it seems that the language in the amendment is giving the board broad authority. It reads, "The board shall use the information obtained under this section in its determination of the suitability for licensure of the person filing or executing the application." MS. KESTERSON said the statute entitles the board to gather background information in determining whether it is appropriate for a person to hold a liquor license. Specifically, AS 04.11.260 indicates that [an applicant must include] any other information required for the board. And AS 04.11.300 indicates that the state troopers shall assist the director in the investigation of applicants for new licenses and applicants for the transfer of existing licenses before the applications are considered by the board. The policy has always been to conduct background checks on applicants. However, the way the law is written now, in order to get any criminal background records from any state other than Alaska there has to be specific authority in statute, which is what the amendment is meant to do. She further asserted that the Alcoholic Beverage Control Board is the type of entity that should be entitled to criminal background information in order to determine whether or not a person should hold a liquor license. REPRESENTATIVE GREEN, noting that there were no further testifiers, closed the meeting to public testimony. Number 1670 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1. There being no objection, Amendment 1 was adopted. It read as follows: Page 1, line 3, following "public;" Insert "providing for the use of criminal justice information and records by the Alcoholic Beverage Control Board;" Page 1, following line 5: Insert a new bill section to read: "*Section 1. AS 04.06 is amended by adding a new section to read: Sec. 04.06.095. Criminal justice information and records. (a) The board shall require a person filing or executing an application for the issuance, renewal, or transfer of a license under this title to be fingerprinted. The board shall submit the fingerprints to the Department of Public Safety to obtain a report of criminal justice information under AS 12.62 and a national criminal history record check. The Department of Public Safety is authorized to submit the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The board shall use the information obtained under this section in its determination of the suitability for licensure of the person filing or executing the application. (b) In this section, "criminal justice information" has the meaning given in AS 12.62.900." Renumber the following bill sections accordingly. Page 16. Following line 20: Insert new bill sections to read: "*Sec. 9. TRANSITION: PENDING APPLICATIONS UNDER AS 04. Notwithstanding AS 04.06.095, enacted by sec. 1 of this Act, the Alcoholic Beverage Control Board may process an application for a license under AS 04 without a national criminal history record check from the Federal Bureau of Investigation if that application was pending with the board on the effective date of sec. 1 of this Act. "Sec. 10. Sections 1 and 9 of this Act take effect immediately under AS 01.10.070(c)." Renumber the following bill section accordingly. Page 16, line 21: Delete "This" Insert "Except as provided in sec. 10 of this Act, this" Number 1690 REPRESENTATIVE KERTTULA made a motion to move HB 292, version 1-GH2014.A, as amended, out of committee with individual recommendations and attached fiscal notes. There being no objection, CSHB 292(JUD) moved from the House Judiciary Standing Committee.
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