AN ACT Relating to child and adult abuse information; amending RCW 9.94A.230, 43.43.700, 43.43.705, 43.43.710, 43.43.735, 43.43.740, and 74.15.030; adding new sections to chapter 43.43 RCW; creating a new section; repealing RCW 26.44.070; and providing an expiration date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout sections 1 through 6 of this act.

(1) "Applicant" means any prospective employee or volunteer who will or may have access to children under sixteen years of age or developmentally disabled persons during the course of his or her employment or involvement with the business or organization.

(2) "Business or organization" means a business or organization licensed in this state, any agency of the state, or other governmental entity, that educates, trains, treats, supervises, or provides recreation to developmentally disabled persons or children under sixteen years of age, including school districts.

(3) "Civil adjudication" means a specific court finding of sexual abuse or exploitation or physical abuse in a dependency action under RCW 13.34.030(2)(b) or in a domestic relations action under Title 26 RCW. It does not include administrative proceedings. The term "civil adjudication" is further limited to court findings that identify as the perpetrator of the abuse a named individual, over the age of eighteen years, who was a party to the dependency or dissolution proceeding in which the finding was made.

(4) "Conviction record" means criminal history record information as defined in RCW 10.97.030 relating to a crime against persons committed by either an adult or a juvenile. It does not include a conviction for an offense that has been the subject of an expungment, pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, or a conviction that has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. It does include convictions for offenses for which the defendant received a deferred or suspended sentence, unless the record has been expunged according to law.

(5) "Disciplinary board final decision" means any final decision issued by the disciplinary board or the director of the department of licensing for the following business or professions:

(a) Chiropractic;

(b) Dentistry;

(d) Drugless healing;

(e) Massage;

(f) Midwifery;

(g) Osteopathy;

(h) Physical therapy;

(i) Physicians;

(j) Practical nursing;

(k) Registered nursing;

(l) Psychology; and

(m) Real estate brokers and salesmen. (6) "Crime against persons" means a conviction of any of the following offenses: Aggravated murder; first or second degree murder; first or second degree kidnaping; first, second, or third degree assault; first, second, or third degree rape; first, second, or third degree statutory rape; first or second degree robbery; first degree arson; first degree burglary; first or second degree manslaughter; first or second degree extortion; indecent liberties; incest; vehicular homicide; first degree promoting prostitution; communication with a minor; unlawful imprisonment; simple assault; or reckless endangerment.

NEW SECTION. Sec. 2. (1) The legislature finds that businesses and organizations providing services to children or developmentally disabled persons need adequate information to determine which employees, licensees, or volunteers to hire or engage. Therefore, the Washington state patrol criminal identification system may disclose, upon the request of a business or organization as defined in section 1 of this act, a prospective employee's or volunteer's record for convictions of offenses against persons, adjudications of child abuse in a civil action, and disciplinary board final decisions.

(2) The legislature also finds that law enforcement agencies, the office of the attorney general, prosecuting authorities, and the department of social and health services may request this same information to aid in the investigation and prosecution of child and adult abuse cases and to protect children and adults from further incidents of abuse.

(3) The legislature further finds that the department of social and health services, when considering persons for state positions directly responsible for the care, supervision, or treatment of children or the developmentally disabled or when licensing or authorizing such persons or agencies pursuant to its authority under chapter 74.15 RCW, must consider the information listed in subsection (1) of this section. However, when necessary, persons may be employed on a conditional basis pending completion of the background investigation. The state personnel board shall adopt rules to accomplish the purposes of this subsection as it applies to state employees.

NEW SECTION. Sec. 3. (1) A business or organization shall not make an inquiry to the Washington state patrol under section 2 of this act or an equivalent inquiry to a federal law enforcement agency unless the business or organization has notified the applicant that an inquiry may be made.

(2) A business or organization shall require each applicant to disclose to the business or organization whether the applicant has been:

(a) Convicted of any crime against persons;

(b) Found in any dependency action under RCW 13.34.030(2)(b) to have sexually assaulted or exploited any minor or to have physically abused any minor;

(c) Found by a court in a domestic relations proceeding under Title 26 RCW to have sexually abused or exploited any minor or to have physically abused any minor; or

(d) Found in any disciplinary board final decision to have sexually abused or exploited any minor or to have physically abused any minor.

The disclosure shall be made in writing and signed by the applicant and sworn under penalty of perjury. The disclosure sheet shall specify all crimes against persons as defined in section 1 of this act.

(3) Unless otherwise agreed to in a collective bargaining agreement or by the business or organization, the applicant shall bear any costs of the applicant's fingerprinting. The business or organization shall pay such reasonable fee for the records check as the state patrol may require under section 5 of this act.

(4) The business or organization shall notify the applicant of the state patrol's response within ten days after receipt by the business or organization. The employer shall provide the fingerprint card and a copy of the response to the applicant and shall notify the applicant of such availability.

(5) The business or organization shall use this record only in making the initial employment or engagement decision. Further dissemination or use of the record is prohibited. A business or organization violating this subsection is subject to a civil action for damages.

NEW SECTION. Sec. 4. An individual may contact the state patrol to ascertain whether that same individual has a civil adjudication, disciplinary board final decision, or conviction record. The state patrol shall disclose such information, subject to the fee established under section 5 of this act.

NEW SECTION. Sec. 5. (1) After July 1, 1987, and notwithstanding any provision of RCW 43.43.700 through 43.43.810 to the contrary, the state patrol shall furnish a transcript of the conviction record, disciplinary board final decision, or civil adjudication record pertaining to any person for whom the state patrol or the federal bureau of investigation has a record upon the written request of:

(a) The subject of the inquiry;

(b) Any business or organization for the purpose of conducting evaluations under section 2 of this act;

(d) Any law enforcement agency, prosecuting authority, or the office of the attorney general; or

(e) The department of social and health services for the purpose of meeting responsibilities set forth in chapter 74.15 RCW. However, access to conviction records pursuant to this subsection (1)(e) does not limit or restrict the ability of the department to obtain additional information regarding conviction records and pending charges as set forth in RCW 74.15.030(2)(b).

After processing the request, the state patrol shall return the fingerprint card to the person or agency making the request.

(2) The state patrol shall by rule establish fees for disseminating records under this section to recipients identified in subsection (1)(a) and (b) of this section. The state patrol shall also by rule establish fees for disseminating records in the custody of the national crime information center. The fees shall cover, as nearly as practicable, the direct and indirect costs to the state patrol of disseminating the records: PROVIDED, That no fee shall be charged to a nonprofit organization for the records check.

(3) Neither the state patrol records section, its employees, nor other agency or employee of the state, nor any employee of the business or organization is liable for defamation, invasion of privacy, negligence, or any other claim in connection with any lawful dissemination of information under sections 1 through 6 of this act or RCW 43.43.760.

(4) Before January 1, 1987, the state patrol shall adopt rules and forms to implement this section and to provide for security and privacy of information disseminated under this section, giving first priority to the criminal justice requirements of this chapter. The rules may include requirements for users, audits of users, and other procedures to prevent use of civil adjudication record information or criminal history record information inconsistent with this chapter.

(5) Nothing in sections 1 through 6 of this act shall authorize an employer to make an inquiry not specifically authorized by this chapter, or be construed to affect the policy of the state declared in chapter 9.96A RCW.

NEW SECTION. Sec. 6. (1) The supreme court shall by rule require the courts of the state to notify the state patrol of any dependency action under RCW 13.34.030(2)(b) or domestic relations action under Title 26 RCW in which the court makes specific findings of physical abuse or sexual abuse or exploitation of a child.

(2) The department of licensing shall notify the state patrol of any disciplinary board final decision that includes specific findings of physical abuse or sexual abuse or exploitation of a child.

Sec. 7. Section 23, chapter 137, Laws of 1981 and RCW 9.94A.230 are each amended to read as follows:

(1) Every offender who has been discharged under RCW 9.94A.220 may apply to the sentencing court for a vacation of the offender's record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender's plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender.

(2) An offender may not have the record of conviction cleared if: (a) There are any criminal charges against the offender pending in any court of this state or another state, or in any federal court; (b) the offense was a violent offense as defined in RCW 9.94A.030; (c) the offense was a crime against persons as defined in section 1 of this 1986 act; (d) the offender has been convicted of a new crime in this state, another state, or federal court since the date of the offender's discharge under RCW 9.94A.220; ((~~(d)~~)) (e) the offense is a class B felony and less than ten years have passed since the date the applicant was discharged under RCW 9.94A.220; and ((~~(e)~~)) (f) the offense was a class C felony and less than five years have passed since the date the applicant was discharged under RCW 9.94A.220.

(3) Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender's criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.

Sec. 8. Section 1, chapter 152, Laws of 1972 ex. sess. as last amended by section 7, chapter 201, Laws of 1985 and RCW 43.43.700 are each amended to read as follows:

There is hereby established within the Washington state patrol a section on identification, child abuse, and criminal history hereafter referred to as the section.

In order to aid the administration of justice the section shall install systems for the identification of individuals, including the fingerprint system and such other systems as the chief deems necessary. The section shall keep a complete record and index of all information received in convenient form for consultation and comparison.

The section shall obtain from whatever source available and file for record the fingerprints, palmprints, photographs, or such other identification data as it deems necessary, of persons who have been or shall hereafter be lawfully arrested and charged with, or convicted of any criminal offense. The section may obtain like information concerning persons arrested for or convicted of crimes under the laws of another state or government.

The section shall also contain like information concerning persons, over the age of eighteen years, who have been found, pursuant to a dependency proceeding under ((~~chapter 13.34 RCW in which the person was a party, to have sexually molested, sexually abused, or sexually exploited a child~~)) RCW 13.34.030(2)(b) to have physically abused or sexually abused or exploited a child.

Sec. 9. Section 2, chapter 152, Laws of 1972 ex. sess. as last amended by section 8, chapter 201, Laws of 1985 and RCW 43.43.705 are each amended to read as follows:

Upon the receipt of identification data from criminal justice agencies within this state, the section shall immediately cause the files to be examined and upon request shall promptly return to the contributor of such data a transcript of the record of previous arrests and dispositions of the persons described in the data submitted.

Upon application, the section shall furnish to criminal justice agencies, or to the department of social and health services, hereinafter referred to as the "department", a transcript of the criminal offender record information or dependency record information available pertaining to any person of whom the section has a record.

For the purposes of RCW 43.43.700 through 43.43.800 the following words and phrases shall have the following meanings:

"Criminal offender record information" includes, and shall be restricted to identifying data and public record information recorded as the result of an arrest or other initiation of criminal proceedings and the consequent proceedings related thereto. "Criminal offender record information" shall not include intelligence, analytical, or investigative reports and files.

"Criminal justice agencies" are those public agencies within or outside the state which perform, as a principal function, activities directly relating to the apprehension, prosecution, adjudication or rehabilitation of criminal offenders.

"Dependency record information" includes and shall be restricted to identifying data regarding a person, over the age of eighteen, who was a party to a dependency proceeding brought under chapter 13.34 RCW and who has been found, pursuant to such dependency proceeding, to have sexually ((~~molested, sexually abused, or sexually exploited~~)) abused or exploited or physically abused a child.

((Applications for information shall be by a data communications network used exclusively by criminal justice agencies or the department or in writing and information applied for shall be used solely in the due administration of the criminal laws or for the purposes enumerated in RCW 43.43.760(3).))

The section may refuse to furnish any information pertaining to the identification or history of any person or persons of whom it has a record, or other information in its files and records, to any applicant if the chief determines that the applicant has previously misused information furnished to such applicant by the section or the chief believes that the applicant will not use the information requested solely for the purpose of due administration of the criminal laws or for the purposes enumerated in RCW 43.43.760(3). The applicant may appeal such determination and denial of information to the advisory council created in RCW 43.43.785 and the council may direct that the section furnish such information to the applicant.

Sec. 10. Section 7, chapter 36, Laws of 1979 ex. sess. as amended by section 9, chapter 201, Laws of 1985 and RCW 43.43.710 are each amended to read as follows:

Information contained in the files and records of the section relative to the commission of any crime by any person shall be considered privileged and shall not be made public or disclosed for any personal purpose or in any civil court proceedings except upon a written order of the judge of a court wherein such civil proceedings are had. All information contained in the files of the section relative to criminal records and personal histories of persons arrested for the commission of a crime shall be available to all criminal justice agencies and, for the sole purpose of investigating the cause of fires under RCW 48.48.060(2) where the cause is suspected to be arson, to the state fire marshal, upon the filing of an application as provided in RCW 43.43.705.

((Dependency record information contained in the files and records of the section shall be considered privileged and shall not be made public. Dependency record information may be disclosed as authorized by this chapter or may be disclosed to the same extent that information regarding dependency proceedings may generally be disclosed, as authorized by applicable laws or court rules.))

Although no application for information has been made to the section as provided in RCW 43.43.705, the section may transmit such information in the chief's discretion, to such agencies as are authorized by RCW 43.43.705 to make application for it.

Sec. 11. Section 8, chapter 152, Laws of 1972 ex. sess. as amended by section 13, chapter 201, Laws of 1985 and RCW 43.43.735 are each amended to read as follows:

(1) It shall be the duty of the sheriff or director of public safety of every county, and the chief of police of every city or town, and of every chief officer of other law enforcement agencies duly operating within this state, to cause the photographing and fingerprinting of all persons lawfully arrested for the commission of any criminal offense constituting a felony or gross misdemeanor: PROVIDED, That an exception may be made when the arrest is for a violation punishable as a gross misdemeanor and the arrested person is not taken into custody.

(2) It shall be the right, but not the duty, of the sheriff or director of public safety of every county, and the chief of police of every city or town, and every chief officer of other law enforcement agencies operating within this state to photograph and record the fingerprints of all persons lawfully arrested, or all persons who are the subject of dependency record information.

(3) Such sheriffs, directors of public safety, chiefs of police, and other chief law enforcement officers, may record, in addition to photographs and fingerprints, the palmprints, soleprints, toeprints, or any other identification data of all persons lawfully arrested for the commission of any criminal offense, or all persons who are the subject of dependency record information, when in the discretion of such law enforcement officers it is necessary for proper identification of the arrested person or the investigation of the crime with which he is charged.

(4) It shall be the duty of the department of licensing or the court having jurisdiction over the dependency action to cause the fingerprinting of all persons who are the subject of a disciplinary board final decision or dependency record information ((~~and~~)) or to obtain other necessary identifying information, as specified by the section in rules promulgated pursuant to chapter 34.04 RCW to carry out the provisions of this subsection.

(5) The court having jurisdiction over the dependency action may obtain and record, in addition to fingerprints, the photographs, palmprints, soleprints, toeprints, or any other identification data of all persons who are the subject of dependency record information, when in the discretion of the court it is necessary for proper identification of the person.

Sec. 12. Section 9, chapter 152, Laws of 1972 ex. sess. as amended by section 14, chapter 201, Laws of 1985 and RCW 43.43.740 are each amended to read as follows:

Except as provided in RCW 43.43.755 relating to the fingerprinting of juveniles:

(1) It shall be the duty of the sheriff or director of public safety of every county, and the chief of police of every city or town, and of every chief officer of other law enforcement agencies duly operating within this state to furnish within seventy-two hours from the time of arrest to the section the required sets of fingerprints together with other identifying data as may be prescribed by the chief, of any person lawfully arrested, fingerprinted, and photographed pursuant to RCW 43.43.735.

(2) Law enforcement agencies may retain and file copies of the fingerprints, photographs, and other identifying data and information obtained pursuant to RCW 43.43.735. Said records shall remain in the possession of the law enforcement agency as part of the identification record and are not returnable to the subjects thereof.

(3) It shall be the duty of the court having jurisdiction over the dependency action to furnish dependency record information, obtained pursuant to RCW 43.43.735, to the section within seven days, excluding Saturdays, Sundays, and holidays, from the date that the court enters a finding, pursuant to a dependency action brought under chapter 13.34 RCW, that a person over the age of eighteen, who is a party to the dependency action, has sexually ((~~molested, sexually abused, or sexually exploited~~)) abused or exploited or physically abused a child.

(4) The court having jurisdiction over the dependency action may retain and file copies of the fingerprints, photographs, and other identifying data and information obtained pursuant to RCW 43.43.735. These records shall remain in the possession of the court as part of the identification record and are not returnable to the subjects thereof.

(5) The section shall administer a compliance audit at least once annually for the department of licensing and each court having jurisdiction over dependency actions as defined in chapter 13.32 RCW. The audit shall ensure that all dependency record information regarding persons over the age of eighteen years has been furnished to the section as required in subsection (3) of this section.

Sec. 13. Section 3, chapter 172, Laws of 1967 as last amended by section 5, chapter 188, Laws of 1984 and RCW 74.15.030 are each amended to read as follows:

The secretary shall have the power and it shall be the secretary's duty:

(1) In consultation with the children's services advisory committee, and with the advice and assistance of persons representative of the various type agencies to be licensed, to designate categories of facilities for which separate or different requirements shall be developed as may be appropriate whether because of variations in the ages, sex and other characteristics of persons served, variations in the purposes and services offered or size or structure of the agencies to be licensed hereunder, or because of any other factor relevant thereto;

(2) In consultation with the children's services advisory committee, and with the advice and assistance of persons representative of the various type agencies to be licensed, to adopt and publish minimum requirements for licensing applicable to each of the various categories of agencies to be licensed.

The minimum requirements shall be limited to:

(a) The size and suitability of a facility and the plan of operation for carrying out the purpose for which an applicant seeks a license;

(b) The character, suitability and competence of an agency and other persons associated with an agency directly responsible for the care and treatment of children, expectant mothers or developmentally disabled persons. In consultation with law enforcement personnel, the secretary shall investigate the conviction record or pending charges and dependency record information under chapter 43.43 RCW of each agency and its staff seeking licensure or relicensure. ((~~Such investigation shall include an examination of the child abuse and neglect register established under chapter 26.44 RCW on all agencies seeking a license under this chapter.~~)) The secretary shall use the information solely for the purpose of determining eligibility for a license and for determining the character, suitability, and competence of those persons or agencies, excluding parents, not required to be licensed who are authorized to care for children, expectant mothers, and developmentally disabled persons((~~, and shall safeguard the information in the same manner as the child abuse registry established in RCW 26.44.070~~)). Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose;

(c) The number of qualified persons required to render the type of care and treatment for which an agency seeks a license;

(d) The safety, cleanliness, and general adequacy of the premises to provide for the comfort, care and well-being of children, expectant mothers or developmentally disabled persons;

(e) The provision of necessary care, including food, clothing, supervision and discipline; physical, mental and social well-being; and educational, recreational and spiritual opportunities for those served;

(f) The financial ability of an agency to comply with minimum requirements established pursuant to chapter 74.15 RCW and RCW 74.13.031; and

(g) The maintenance of records pertaining to the admission, progress, health and discharge of persons served.

(3) To investigate any person, including relatives by blood or marriage except for parents, for character, suitability, and competence in the care and treatment of children, expectant mothers, and developmentally disabled persons prior to authorizing that person to care for children, expectant mothers, and developmentally disabled persons.

(4) To issue, revoke, or deny licenses to agencies pursuant to chapter 74.15 RCW and RCW 74.13.031. Licenses shall specify the category of care which an agency is authorized to render and the ages, sex and number of persons to be served;

(5) To prescribe the procedures and the form and contents of reports necessary for the administration of chapter 74.15 RCW and RCW 74.13.031 and to require regular reports from each licensee;

(6) To inspect agencies periodically to determine whether or not there is compliance with chapter 74.15 RCW and RCW 74.13.031 and the requirements adopted hereunder;

(7) To review requirements adopted hereunder at least every two years and to adopt appropriate changes after consultation with the children's services advisory committee; and

(8) To consult with public and private agencies in order to help them improve their methods and facilities for the care of children, expectant mothers and developmentally disabled persons.

NEW SECTION. Sec. 14. (1) A committee on education on the problems of child sexual abuse is created. The committee shall consist of eleven members appointed by the governor. The governor shall appoint the members to represent the following eleven areas: Child protective service workers, law enforcement officers, judges, health care providers, prosecutors, defense attorneys, counselors working with abusers, counselors working with children, educators, citizens interested and involved in child sexual abuse prevention, and citizens interested and involved in supporting parents' rights. Members of the committee shall serve without compensation but shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

(2) The committee shall develop a course to educate child protective service workers, law enforcement officers, judges, health care providers, prosecutors, defense attorneys, counselors working with abusers, counselors working with children, educators, citizens interested and involved in child sexual abuse prevention, and citizens interested and involved in supporting parents' rights about the profile of an offender who sexually abuses children and the short-term and long-term effects of sexual abuse on a child and the child's family. An outline of the prospective course shall be developed within six months after the effective date of this act. The course development shall be completed by June 30, 1987.

(3) The committee shall develop a plan for the distribution of the course throughout the state and shall include in the plan methods to encourage the use of the course.

(4) This section shall expire June 30, 1987.

NEW SECTION. Sec. 15. Sections 1 through 6 of this act are each added to chapter 43.43 RCW.

NEW SECTION. Sec. 16. Section 6, chapter 35, Laws of 1969 ex. sess., section 1, chapter 46, Laws of 1972 ex. sess., section 7, chapter 217, Laws of 1975 1st ex. sess., section 29, chapter 80, Laws of 1977 ex. sess., section 4, chapter 164, Laws of 1981, section 6, chapter 97, Laws of 1984 and RCW 26.44.070 are each repealed.