BILL REQ. #:  H-0691.1 

Read first time 01/17/11.   Referred to Committee on Public Safety & Emergency Preparedness.

     AN ACT Relating to privacy of nonconviction records; amending RCW 10.97.030 and 10.97.050; adding a new section to chapter 10.97 RCW; and creating new sections.

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

NEW SECTION.  Sec. 1   The legislature finds that with the increasing ease of access to online information about individuals, including in court files, and the increasing use of such information in background checks for employment and housing and other purposes, individuals are being unfairly deprived of employment and housing opportunities and otherwise harmed by governmental records of cases that either never resulted in convictions or are not now convictions, are duplicative or could be misleading.
     Therefore, it is the intent of the legislature to provide clarity in the information publicly disseminated by the courts and other criminal justice agencies about individuals in order to protect people's privacy. This intent is best served by having the courts and other criminal justice agencies provide information to the public that does not involve either an unfiled case or a case that resulted in an exonerating disposition.

Sec. 2   RCW 10.97.030 and 1999 c 49 s 1 are each amended to read as follows:
     For purposes of this chapter, the definitions of terms in this section shall apply.
     (1) "Criminal history record information" means information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release.
     The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except:
     (a) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons;
     (b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;
     (c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;
     (d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;
     (e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers' or other operators' licenses and pursuant to RCW 46.52.130;
     (f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW 47.68.330;
     (g) Announcements of executive clemency.
     (2) "Nonconviction data" consists of all criminal history record information relating to an incident which has not led to a conviction or other disposition adverse to the subject, and for which proceedings are no longer actively pending. There shall be a rebuttable presumption that proceedings are no longer actively pending if more than one year has elapsed since arrest, citation, charge, or service of warrant and no disposition has been entered. Nonconviction data shall also include all criminal history record information relating to a conviction that has been vacated pursuant to RCW 9.94A.640 or 9.96.060.
     (3) "Conviction record" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject, unless that conviction has been vacated pursuant to RCW 9.94A.640 or 9.96.060.
     (4) "Conviction or other disposition adverse to the subject" means any disposition of charges other than: (a) A decision not to prosecute; (b) a dismissal; or (c) acquittal; with the following exceptions, which shall be considered dispositions adverse to the subject: An acquittal due to a finding of not guilty by reason of insanity and a dismissal by reason of incompetency, pursuant to chapter 10.77 RCW; and a dismissal entered after a period of probation, suspension, or deferral of sentence.
     (5) "Criminal justice agency" means: (a) A court; or (b) a government agency which performs the administration of criminal justice pursuant to a statute or executive order and which allocates a substantial part of its annual budget to the administration of criminal justice.
     (6) "The administration of criminal justice" means performance of any of the following activities: Detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. The term also includes criminal identification activities and the collection, storage, dissemination of criminal history record information, and the compensation of victims of crime.
     (7) "Disposition" means the formal conclusion of a criminal proceeding at whatever stage it occurs in the criminal justice system.
     (8) "Dissemination" means disclosing criminal history record information or disclosing the absence of criminal history record information to any person or agency outside the agency possessing the information, subject to the following exceptions:
     (a) When criminal justice agencies jointly participate in the maintenance of a single record keeping department as an alternative to maintaining separate records, the furnishing of information by that department to personnel of any participating agency is not a dissemination;
     (b) The furnishing of information by any criminal justice agency to another for the purpose of processing a matter through the criminal justice system, such as a police department providing information to a prosecutor for use in preparing a charge, is not a dissemination;
     (c) The reporting of an event to a record keeping agency for the purpose of maintaining the record is not a dissemination.

Sec. 3   RCW 10.97.050 and 2005 c 421 s 9 are each amended to read as follows:
     (1) Conviction records may be disseminated without restriction.
     (2) Nonconviction data may not be disseminated except as provided in this section or RCW 10.97.080, unless the individual identified in the data has provided express written permission for dissemination.
     (3) Any criminal history record information which pertains to an incident that occurred within the last twelve months for which a person is currently being processed by the criminal justice system, including the entire period of correctional supervision extending through final discharge from parole, when applicable, may be disseminated without restriction with the exception of a record being disseminated in response to a request for a conviction record under RCW 43.43.832. A request for a conviction record under RCW 43.43.832 shall not contain information for a person who, within the last twelve months, is currently being processed by the criminal justice system unless it pertains to information relating to a crime against a person as defined in RCW 9.94A.411.
     (((3))) (4) Criminal history record information which includes nonconviction data may be disseminated by a criminal justice agency to another criminal justice agency for any purpose associated with the administration of criminal justice, or in connection with the employment of the subject of the record by a criminal justice or juvenile justice agency. A criminal justice agency may respond to any inquiry from another criminal justice agency without any obligation to ascertain the purpose for which the information is to be used by the agency making the inquiry.
     (((4))) (5) Criminal history record information which includes nonconviction data may be disseminated by a criminal justice agency to implement a statute, ordinance, executive order, or a court rule, decision, or order which expressly refers to records of arrest, charges, or allegations of criminal conduct or other nonconviction data and authorizes or directs that it be available or accessible for a specific purpose.
     (((5))) (6) Criminal history record information which includes nonconviction data may be disseminated to individuals and agencies pursuant to a contract with a criminal justice agency to provide services related to the administration of criminal justice. Such contract must specifically authorize access to criminal history record information, but need not specifically state that access to nonconviction data is included. The agreement must limit the use of the criminal history record information to stated purposes and insure the confidentiality and security of the information consistent with state law and any applicable federal statutes and regulations.
     (((6))) (7) Criminal history record information which includes nonconviction data may be disseminated to individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency. Such agreement must authorize the access to nonconviction data, limit the use of that information which identifies specific individuals to research, evaluative, or statistical purposes, and contain provisions giving notice to the person or organization to which the records are disseminated that the use of information obtained therefrom and further dissemination of such information are subject to the provisions of this chapter and applicable federal statutes and regulations, which shall be cited with express reference to the penalties provided for a violation thereof.
     (((7))) (8) Every criminal justice agency that maintains and disseminates criminal history record information must maintain information pertaining to every dissemination of criminal history record information except a dissemination to the effect that the agency has no record concerning an individual. Information pertaining to disseminations shall include:
     (a) An indication of to whom (agency or person) criminal history record information was disseminated;
     (b) The date on which the information was disseminated;
     (c) The individual to whom the information relates; and
     (d) A brief description of the information disseminated.
     The information pertaining to dissemination required to be maintained shall be retained for a period of not less than one year.
     (((8))) (9) In addition to the other provisions in this section allowing dissemination of criminal history record information, RCW 4.24.550 governs dissemination of information concerning offenders who commit sex offenses as defined by RCW 9.94A.030. Criminal justice agencies, their employees, and officials shall be immune from civil liability for dissemination on criminal history record information concerning sex offenders as provided in RCW 4.24.550.

NEW SECTION.  Sec. 4   A new section is added to chapter 10.97 RCW to read as follows:
     (1) "Record of exonerating disposition" means a record held by a court or judicial agency that would be nonconviction data if collected by a criminal justice agency other than a court. This shall include otherwise qualifying records that are part of court indices and records of public judicial proceedings. It shall also include a record relating to an incident where:
     (a) A probable cause hearing was held and the court found there was no probable cause;
     (b) A charge was resolved by the prosecutor's acceptance of bail forfeiture; or
     (c) A charge was dismissed pursuant to a stipulated order of continuance.
     (2) A record of exonerating disposition held by a court or judicial agency shall, upon the request of the person who is the subject of the record, be kept confidential by that court or judicial agency, except that the information shall be available to court personnel, judicial officers, law enforcement, prosecuting agencies, the individual identified in the records, and the attorney for that individual.

NEW SECTION.  Sec. 5   This act may be known and cited as the records privacy act of 2011.