Appendix to Part 20 - Commentary on Selected Sections of the Regulations on Criminal History Record Information Systems
28:1.0.1.1.21.3.4.10.10 :
Appendix to Part 20 - Commentary on Selected Sections of the
Regulations on Criminal History Record Information Systems
Subpart A-§ 20.3(d). The definition of criminal history record
information is intended to include the basic offender-based
transaction statistics/III System (OBTS/III) data elements. If
notations of an arrest, disposition, or other formal criminal
justice transaction occurs in records other than the traditional
“rap sheet,” such as arrest reports, any criminal history record
information contained in such reports comes under the definition of
this subsection.
The definition, however, does not extend to other information
contained in criminal justice agency reports. Intelligence or
investigative information (e.g., suspected criminal activity,
associates, hangouts, financial information, and ownership of
property and vehicles) is not included in the definition of
criminal history information.
§ 20.3(g). The definitions of criminal justice agency and
administration of criminal justice in § 20.3(b) of this part must
be considered together. Included as criminal justice agencies would
be traditional police, courts, and corrections agencies, as well as
subunits of noncriminal justice agencies that perform the
administration of criminal justice pursuant to a federal or state
statute or executive order and allocate a substantial portion of
their budgets to the administration of criminal justice. The above
subunits of noncriminal justice agencies would include, for
example, the Office of Investigation of the Food and Drug
Administration, which has as its principal function the detection
and apprehension of persons violating criminal provisions of the
Federal Food, Drug and Cosmetic Act. Also included under the
definition of criminal justice agency are umbrella-type
administrative agencies supplying criminal history information
services, such as New York's Division of Criminal Justice
Services.
§ 20.3(i). Disposition is a key concept in section 524(b) of the
Act and in §§ 20.21(a)(1) and 20.21(b) of this part. It therefore
is defined in some detail. The specific dispositions listed in this
subsection are examples only and are not to be construed as
excluding other, unspecified transactions concluding criminal
proceedings within a particular agency.
§ 20.3(q). The different kinds of acquittals and dismissals
delineated in § 20.3(i) are all considered examples of
nonconviction data.
Subpart B - § 20.20(a). These regulations apply to criminal
justice agencies receiving funds under the Omnibus Crime Control
and Safe Streets Act for manual or automated systems subsequent to
July 1, 1973. In the hearings on the regulations, a number of those
testifying challenged LEAA's authority to promulgate regulations
for manual systems by contending that section 524(b) of the Act
governs criminal history information contained in automated
systems.
The intent of section 524(b), however, would be subverted by
only regulating automated systems. Any agency that wished to
circumvent the regulations would be able to create duplicate manual
files for purposes contrary to the letter and spirit of the
regulations.
Regulation of manual systems, therefore, is authorized by
section 524(b) when coupled with section 501 of the Act which
authorizes the Administration to establish rules and regulations
“necessary to the exercise of its functions * * *.”
The Act clearly applies to all criminal history record
information collected, stored, or disseminated with LEAA support
subsequent to July 1, 1973.
Limitations as contained in subpart C also apply to information
obtained from the FBI Identification Division or the FBI/NCIC
System.
§ 20.20 (b) and (c). Section 20.20 (b) and (c) exempts from
regulations certain types of records vital to the apprehension of
fugitives, freedom of the press, and the public's right to know.
Court records of public judicial proceedings are also exempt from
the provisions of the regulations.
Section 20.20(b)(2) attempts to deal with the problem of
computerized police blotters. In some local jurisdictions, it is
apparently possible for private individuals and/or newsmen upon
submission of a specific name to obtain through a computer search
of the blotter a history of a person's arrests. Such files create a
partial criminal history data bank potentially damaging to
individual privacy, especially since they do not contain final
dispositions. By requiring that such records be accessed solely on
a chronological basis, the regulations limit inquiries to specific
time periods and discourage general fishing expeditions into a
person's private life.
Subsection 20.20(c) recognizes that announcements of ongoing
developments in the criminal justice process should not be
precluded from public disclosure. Thus, announcements of arrest,
convictions, new developments in the course of an investigation may
be made. It is also permissible for a criminal justice agency to
confirm certain matters of public record information upon specific
inquiry. Thus, if a question is raised: “Was X arrested by your
agency on January 3, 1975” and this can be confirmed or denied by
looking at one of the records enumerated in subsection (b) above,
then the criminal justice agency may respond to the inquiry.
Conviction data as stated in § 20.21(b) may be disseminated without
limitation.
§ 20.21. The regulations deliberately refrain from specifying
who within a State should be responsible for preparing the plan.
This specific determination should be made by the Governor. The
State has 90 days from the publication of these revised regulations
to submit the portion of the plan covering §§ 20.21(b) and
20.21(f).
§ 20.21(a)(1). Section 524(b) of the Act requires that LEAA
insure criminal history information be current and that, to the
maximum extent feasible, it contain disposition as well as current
data.
It is, however, economically and administratively impractical to
maintain complete criminal histories at the local level.
Arrangements for local police departments to keep track of
dispositions by agencies outside of the local jurisdictions
generally do not exist. It would, moreover, be bad public policy to
encourage such arrangements since it would result in an expensive
duplication of files.
The alternatives to locally kept criminal histories are records
maintained by a central State repository. A central State
repository is a State agency having the function pursuant to a
statute or executive order of maintaining comprehensive statewide
criminal history record information files. Ultimately, through
automatic data processing the State level will have the capability
to handle all requests for in-State criminal history
information.
Section 20.20(a)(1) is written with a centralized State criminal
history repository in mind. The first sentence of the subsection
states that complete records should be retained at a central State
repository. The word “should” is permissive; it suggests but does
not mandate a central State repository.
The regulations do require that States establish procedures for
State and local criminal justice agencies to query central State
repositories wherever they exist. Such procedures are intended to
insure that the most current criminal justice information is
used.
As a minimum, criminal justice agencies subject to these
regulations must make inquiries of central State repositories
whenever the repository is capable of meeting the user's request
within a reasonable time. Presently, comprehensive records of an
individual's transactions within a State are maintained in manual
files at the State level, if at all. It is probably unrealistic to
expect manual systems to be able immediately to meet many
rapid-access needs of police and prosecutors. On the other hand,
queries of the State central repository for most noncriminal
justice purposes probably can and should be made prior to
dissemination of criminal history record information.
§ 20.21(b). The limitations on dissemination in this subsection
are essential to fulfill the mandate of section 524(b) of the Act
which requires the Administration to assure that the “privacy of
all information is adequately provided for and that information
shall only be used for law enforcement and criminal justice and
other lawful purposes.” The categories for dissemination
established in this section reflect suggestions by hearing
witnesses and respondents submitting written commentary.
The regulations distinguish between conviction and nonconviction
information insofar as dissemination is concerned. Conviction
information is currently made available without limitation in many
jurisdictions. Under these regulations, conviction data and pending
charges could continue to be disseminated routinely. No statute,
ordinance, executive order, or court rule is necessary in order to
authorize dissemination of conviction data. However, nothing in the
regulations shall be construed to negate a State law limiting such
dissemination.
After December 31, 1977, dissemination of nonconviction data
would be allowed, if authorized by a statute, ordinance, executive
order, or court rule, decision, or order. The December 31, 1977,
deadline allows the States time to review and determine the kinds
of dissemination for non-criminal justice purposes to be
authorized. When a State enacts comprehensive legislation in this
area, such legislation will govern dissemination by local
jurisdictions within the State. It is possible for a public record
law which has been construed by the State to authorize access to
the public of all State records, including criminal history record
information, to be considered as statutory authority under this
subsection. Federal legislation and executive orders can also
authorize dissemination and would be relevant authority.
For example, Civil Service suitability investigations are
conducted under Executive Order 10450. This is the authority for
most investigations conducted by the Commission. Section 3(a) of
10450 prescribes the minimum scope of investigation and requires a
check of FBI fingerprint files and written inquiries to appropriate
law enforcement agencies.
§ 20.21(b)(3). This subsection would permit private agencies
such as the Vera Institute to receive criminal histories where they
perform a necessary administration of justice function such as
pretrial release. Private consulting firms which commonly assist
criminal justice agencies in information systems development would
also be included here.
§ 20.21(b)(4). Under this subsection, any good faith researchers
including private individuals would be permitted to use criminal
history record information for research purposes. As with the
agencies designated in § 20.21(b)(3) researchers would be bound by
an agreement with the disseminating criminal justice agency and
would, of course, be subject to the sanctions of the Act.
The drafters of the regulations expressly rejected a suggestion
which would have limited access for research purposes to certified
research organizations. Specifically “certification” criteria would
have been extremely difficult to draft and would have inevitably
led to unnecessary restrictions on legitimate research.
Section 524(a) of the Act which forms part of the requirements
of this section states:
“Except as provided by Federal law other than this title, no
officer or employee of the Federal Government, nor any recipient of
assistance under the provisions of this title shall use or reveal
any research or statistical information furnished under this title
by any person and identifiable to any specific private person for
any purpose other than the purpose for which it was obtained in
accordance with this title. Copies of such information shall be
immune from legal process, and shall not, without the consent of
the person furnishing such information, be admitted as evidence or
used for any purpose in any action suit, or other judicial or
administrative proceedings.”
LEAA anticipates issuing regulations, pursuant to section 524(a) as
soon as possible.
§ 20.21(c)(2). Presently some employers are circumventing State
and local dissemination restrictions by requesting applicants to
obtain an official certification of no criminal record. An
employer's request under the above circumstances gives the
applicant the unenviable choice of invasion of his privacy or loss
of possible job opportunities. Under this subsection routine
certifications of no record would no longer be permitted. In
extraordinary circumstances, however, an individual could obtain a
court order permitting such a certification.
§ 20.21(c)(3). The language of this subsection leaves to the
States the question of who among the agencies and individuals
listed in § 20.21(b) shall actually receive criminal records. Under
these regulations a State could place a total ban on dissemination
if it so wished. The State could, on the other hand, enact laws
authorizing any member of the private sector to have access to
non-conviction data.
§ 20.21(d). Non-criminal justice agencies will not be able to
receive records of juveniles unless the language of a statute or
court order, rule, or court decision specifies that juvenile
records shall be available for dissemination. Perhaps the most
controversial part of this subsection is that it denies access to
records of juveniles by Federal agencies conducting background
investigations for eligibility to classified information under
existing legal authority.
§ 20.21(e) Since it would be too costly to audit each criminal
justice agency in most States (Wisconsin, for example, has 1075
criminal justice agencies) random audits of a “representative
sample” of agencies are the next best alternative. The term
“representative sample” is used to insure that audits do not simply
focus on certain types of agencies. Although this subsection
requires that there be records kept with the names of all persons
or agencies to whom information is disseminated, criminal justice
agencies are not required to maintain dissemination logs for “no
record” responses.
§ 20.21(f). Requirements are set forth which the States must
meet in order to assure that criminal history record information is
adequately protected. Automated systems may operate in shared
environments and the regulations require certain minimum
assurances.
§ 20.21(g)(1). A “challenge” under this section is an oral or
written contention by an individual that his record is inaccurate
or incomplete; it would require him to give a correct version of
his record and explain why he believes his version to be correct.
While an individual should have access to his record for review, a
copy of the record should ordinarily only be given when it is
clearly established that it is necessary for the purpose of
challenge.
The drafters of the subsection expressly rejected a suggestion that
would have called for a satisfactory verification of identity by
fingerprint comparison. It was felt that States ought to be free to
determine other means of identity verification.
§ 20.21(g)(5). Not every agency will have done this in the past,
but henceforth adequate records including those required under
20.21(e) must be kept so that notification can be made.
§ 20.21(g)(6). This section emphasizes that the right to access
and review extends only to criminal history record information and
does not include other information such as intelligence or
treatment data.
§ 20.22(a). The purpose for the certification requirement is to
indicate the extent of compliance with these regulations. The term
“maximum extent feasible” acknowledges that there are some areas
such as the completeness requirement which create complex
legislative and financial problems.
Note:
In preparing the plans required by these regulations, States
should look for guidance to the following documents: National
Advisory Commission on Criminal Justice Standards and Goals, Report
on the Criminal Justice System; Project SEARCH: Security and
Privacy Considerations in Criminal History Information Systems,
Technical Reports No. 2 and No. 13; Project SEARCH: A Model State
Act for Criminal Offender Record Information, Technical Memorandum
No. 3; and Project SEARCH: Model Administrative Regulations for
Criminal Offender Record Information, Technical Memorandum No.
4.
Subpart C-§ 20.31. This section defines the criminal history
record information system managed by the Federal Bureau of
Investigation. Each state having a record in the III System must
have fingerprints on file in the FBI CJIS Division to support the
III System record concerning the individual.
Paragraph (b) is not intended to limit the identification
services presently performed by the FBI for local, state, tribal,
and federal agencies.
§ 20.32. The grandfather clause contained in paragraph (c) of
this section is designed, from a practical standpoint, to eliminate
the necessity of deleting from the FBI's massive files the
non-includable offenses that were stored prior to February, 1973.
In the event a person is charged in court with a serious or
significant offense arising out of an arrest involving a
non-includable offense, the non-includable offense will also appear
in the arrest segment of the III System record.
§ 20.33(a)(3). This paragraph incorporates provisions cited in
28 CFR 50.12 regarding dissemination of identification records
outside the federal government for noncriminal justice
purposes.
§ 20.33(a)(6). Noncriminal justice governmental agencies are
sometimes tasked to perform criminal justice dispatching functions
or data processing/information services for criminal justice
agencies as part, albeit not a principal part, of their
responsibilities. Although such inter-governmental delegated tasks
involve the administration of criminal justice, performance of
those tasks does not convert an otherwise non-criminal justice
agency to a criminal justice agency. This regulation authorizes
this type of delegation if it is effected pursuant to executive
order, statute, regulation, or interagency agreement. In this
context, the noncriminal justice agency is servicing the criminal
justice agency by performing an administration of criminal justice
function and is permitted access to criminal history record
information to accomplish that limited function. An example of such
delegation would be the Pennsylvania Department of Administration's
Bureau of Consolidated Computer Services, which performs data
processing for several state agencies, including the Pennsylvania
State Police. Privatization of the data processing/information
services or dispatching function by the noncriminal justice
governmental agency can be accomplished pursuant to § 20.33(a)(7)
of this part.
§ 20.34. The procedures by which an individual may obtain a copy
of his manual identification record are set forth in 28 CFR
16.30-16.34.
The procedures by which an individual may obtain a copy of his
III System record are as follows: If an individual has a criminal
record supported by fingerprints and that record has been entered
in the III System, it is available to that individual for review,
upon presentation of appropriate identification, and in accordance
with applicable state and federal administrative and statutory
regulations. Appropriate identification includes being
fingerprinted for the purpose of insuring that he is the individual
that he purports to be. The record on file will then be verified as
his through comparison of fingerprints.
Procedure. 1. All requests for review must be made by the
subject of the record through a law enforcement agency which has
access to the III System. That agency within statutory or
regulatory limits can require additional identification to assist
in securing a positive identification.
2. If the cooperating law enforcement agency can make an
identification with fingerprints previously taken which are on file
locally and if the FBI identification number of the individual's
record is available to that agency, it can make an on-line inquiry
through NCIC to obtain his III System record or, if it does not
have suitable equipment to obtain an on-line response, obtain the
record from Clarksburg, West Virginia, by mail. The individual will
then be afforded the opportunity to see that record.
3. Should the cooperating law enforcement agency not have the
individual's fingerprints on file locally, it is necessary for that
agency to relate his prints to an existing record by having his
identification prints compared with those already on file in the
FBI, or, possibly, in the state's central identification
agency.
4. The subject of the requested record shall request the
appropriate arresting agency, court, or correctional agency to
initiate action necessary to correct any stated inaccuracy in his
record or provide the information needed to make the record
complete.
§ 20.36. This section refers to the requirements for obtaining
direct access to the III System.
§ 20.37. The 120-day requirement in this section allows 30 days
more than the similar provision in subpart B in order to allow for
processing time that may be needed by the states before forwarding
the disposition to the FBI.
[Order No. 662-76, 41 FR 34949, Aug. 18, 1976, as amended by Order
No. 1438-90, 55 FR 32075, Aug. 7, 1990; Order No. 2258-99, 64 FR
52229, Sept. 28, 1999]