BILL REQ. #: S-4443.1
_____________________________________________
SENATE BILL 6719
_____________________________________________| State of Washington | 59th Legislature | 2006 Regular Session |
By Senators Brandland, Kohl-Welles, McAuliffe, Shin, Rockefeller, Rasmussen, Schmidt, Stevens and HargroveRead first time 01/19/2006. Referred to Committee on Judiciary.
AN ACT Relating to the crime prevention and privacy compact; adding
new sections to chapter 43.43 RCW; creating a new section; and
providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 This act may be known and cited as the
"crime prevention and privacy compact."
NEW SECTION. Sec. 2 A new section is added to chapter 43.43 RCW
to read as follows:
The crime prevention and privacy compact is hereby entered into and
enacted into law, in the form substantially as follows:
ARTICLE I--DEFINITIONS
In this compact:
(1) Attorney general. The term "attorney general" means the
attorney general of the United States.
(2) Compact officer. The term "compact officer" means:
(a) With respect to the federal government, an official so
designated by the director of the FBI; and
(b) With respect to a party state, the chief administrator of the
state's criminal history record repository or a designee of the chief
administrator who is a regular full-time employee of the repository.
(3) Council. The term "council" means the compact council
established under Article VI of this section.
(4) Criminal history records. The term "criminal history records":
(a) Means information collected by criminal justice agencies on
individuals consisting of identifiable descriptions and notations of
arrests, detentions, indictments, or other formal criminal charges, and
any disposition arising therefrom, including acquittal, sentencing,
correctional supervision, or release; and
(b) Does not include identification information such as fingerprint
records if such information does not indicate involvement of the
individual with the criminal justice system.
(5) Criminal history record repository. The term "criminal history
record repository" means the state agency designated by the governor or
other appropriate executive official or the legislature of a state to
perform centralized recordkeeping functions for criminal history
records and services in the state.
(6) Criminal justice. The term "criminal justice" includes
activities relating to the detection, apprehension, detention, pretrial
release, posttrial release, prosecution, adjudication, correctional
supervision, or rehabilitation of accused persons or criminal
offenders. The administration of criminal justice includes criminal
identification activities and the collection, storage, and
dissemination of criminal history records.
(7) Criminal justice agency. The term "criminal justice agency":
(a) Means:
(i) Courts; and
(ii) A governmental agency or any subunit thereof that:
(A) Performs the administration of criminal justice pursuant to a
statute or executive order; and
(B) Allocates a substantial part of its annual budget to the
administration of criminal justice; and
(b) Includes federal and state inspectors general offices.
(8) Criminal justice services. The term "criminal justice
services" means services provided by the FBI to criminal justice
agencies in response to a request for information about a particular
individual or as an update to information previously provided for
criminal justice purposes.
(9) Criterion offense. The term "criterion offense" means any
felony or misdemeanor offense not included on the list of nonserious
offenses published periodically by the FBI.
(10) Direct access. The term "direct access" means access to the
national identification index by computer terminal or other automated
means not requiring the assistance of or intervention by any other
party or agency.
(11) Executive order. The term "executive order" means an order of
the President of the United States or the chief executive officer of a
state that has the force of law and that is promulgated in accordance
with applicable law.
(12) FBI. The term "FBI" means the federal bureau of
investigation.
(13) Interstate identification system. The term "Interstate
identification index system" or "III system":
(a) Means the cooperative federal-state system for the exchange of
criminal history records; and
(b) Includes the national identification index, the national
fingerprint file and, to the extent of their participation in such
system, the criminal history record repositories of the states and the
FBI.
(14) National fingerprint file. The term "national fingerprint
file" means a database of fingerprints, or other uniquely personal
identifying information, relating to an arrested or charged individual
maintained by the FBI to provide positive identification of record
subjects indexed in the III system.
(15) National identification index. The term "national
identification index" means an index maintained by the FBI consisting
of names, identifying numbers, and other descriptive information
relating to record subjects about whom there are criminal history
records in the III system.
(16) National indices. The term "national indices" means the
national identification index and the national fingerprint file.
(17) Nonparty state. The term "nonparty state" means a state that
has not ratified this compact.
(18) Noncriminal justice purposes. The term "noncriminal justice
purposes" means uses of criminal history records for purposes
authorized by federal or state law other than purposes relating to
criminal justice activities, including employment suitability,
licensing determinations, immigration and naturalization matters, and
national security clearances.
(19) Party state. The term "party state" means a state that has
ratified this compact.
(20) Positive identification. The term "positive identification"
means a determination, based upon a comparison of fingerprints or other
equally reliable biometric identification techniques, that the subject
of a record search is the same person as the subject of a criminal
history record or records indexed in the III system. Identifications
based solely upon a comparison of subjects' names or other nonunique
identification characteristics or numbers, or combinations thereof,
shall not constitute positive identification.
(21) Sealed record information. The term "sealed record
information" means:
(a) With respect to adults, that portion of a record that is:
(i) Not available for criminal justice uses;
(ii) Not supported by fingerprints or other accepted means of
positive identification; or
(iii) Subject to restrictions on dissemination for noncriminal
justice purposes pursuant to a court order related to a particular
subject or pursuant to a federal or state statute that requires action
on a sealing petition filed by a particular record subject; and
(b) With respect to juveniles, whatever each state determines is a
sealed record under its own law and procedure.
(22) State. The term "state" means any state, territory, or
possession of the United States, the District of Columbia, and the
Commonwealth of Puerto Rico.
ARTICLE II--PURPOSES
The purposes of this compact are to:
(1) Provide a legal framework for the establishment of a
cooperative federal-state system for the interstate and federal-state
exchange of criminal history records for noncriminal justice uses;
(2) Require the FBI to permit use of the national identification
index and the national fingerprint file by each party state, and to
provide, in a timely fashion, federal and state criminal history
records to requesting states, in accordance with the terms of this
compact and with rules, procedures, and standards established by the
council under Article VI of this section;
(3) Require party states to provide information and records for the
national identification index and the national fingerprint file and to
provide criminal history records, in a timely fashion, to criminal
history record repositories of other states and the federal government
for noncriminal justice purposes, in accordance with the terms of this
compact and with rules, procedures, and standards established by the
council under Article VI of this section;
(4) Provide for the establishment of a council to monitor III
system operations and to prescribe system rules and procedures for the
effective and proper operation of the III system for noncriminal
justice purposes; and
(5) Require the FBI and each party state to adhere to III system
standards concerning record dissemination and use, response times,
system security, data quality, and other duly established standards,
including those that enhance the accuracy and privacy of such records.
ARTICLE III--RESPONSIBILITIES OF COMPACT PARTIES
(1) FBI responsibilities. The director of the FBI shall:
(a) Appoint an FBI compact officer who shall:
(i) Administer this compact within the department of justice and
among federal agencies and other agencies and organizations that submit
search requests to the FBI pursuant to Article V(3) of this section;
(ii) Ensure that compact provisions and rules, procedures, and
standards prescribed by the council under Article VI of this section
are complied with by the department of justice and the federal agencies
and other agencies and organizations referred to in Article III(a)(i)
of this section; and
(iii) Regulate the use of records received by means of the III
system from party states when such records are supplied by the FBI
directly to other federal agencies;
(b) Provide to federal agencies and to state criminal history
record repositories, criminal history records maintained in its
database for the noncriminal justice purposes described in Article IV
of this section, including:
(i) Information from nonparty states; and
(ii) Information from party states that is available from the FBI
through the III system, but is not available from the party state
through the III system;
(c) Provide a telecommunications network and maintain centralized
facilities for the exchange of criminal history records for both
criminal justice purposes and the noncriminal justice purposes
described in Article IV of this section, and ensure that the exchange
of such records for criminal justice purposes has priority over
exchange for noncriminal justice purposes; and
(d) Modify or enter into user agreements with nonparty state
criminal history record repositories to require them to establish
record request procedures conforming to those prescribed in Article V
of this section.
(2) State responsibilities. Each party state shall:
(a) Appoint a compact officer who shall:
(i) Administer this compact within that state;
(ii) Ensure that compact provisions and rules, procedures, and
standards established by the council under Article VI of this section
are complied with in the state; and
(iii) Regulate the in-state use of records received by means of the
III system from the FBI or from other party states;
(b) Establish and maintain a criminal history record repository,
which shall provide:
(i) Information and records for the national identification index
and the national fingerprint file; and
(ii) The state's III system-indexed criminal history records for
noncriminal justice purposes described in Article IV of this section;
(c) Participate in the national fingerprint file; and
(d) Provide and maintain telecommunications links and related
equipment necessary to support the services set forth in this compact.
(3) Compliance with III system standards. In carrying out their
responsibilities under this compact, the FBI and each party state shall
comply with III system rules, procedures, and standards duly
established by the council concerning record dissemination and use,
response times, data quality, system security, accuracy, privacy
protection, and other aspects of III system operation.
(4) Maintenance of record services.
(a) Use of the III system for noncriminal justice purposes
authorized in this compact shall be managed so as not to diminish the
level of services provided in support of criminal justice purposes.
(b) Administration of compact provisions shall not reduce the level
of service available to authorized noncriminal justice users on the
effective date of this compact.
ARTICLE IV--AUTHORIZED RECORD DISCLOSURES
(1) State criminal history record repositories. To the extent
authorized by section 552a of title 5, United States Code (commonly
known as the "Privacy Act of 1974"), the FBI shall provide on request
criminal history records (excluding sealed records) to state criminal
history record repositories for noncriminal justice purposes allowed by
federal statute, federal executive order, or a state statute that has
been approved by the attorney general and that authorizes national
indices checks.
(2) Criminal justice agencies and other governmental or
nongovernmental agencies. The FBI, to the extent authorized by section
552a of title 5, United States Code (commonly known as the "Privacy Act
of 1974"), and state criminal history record repositories shall provide
criminal history records (excluding sealed records) to criminal justice
agencies and other governmental or nongovernmental agencies for
noncriminal justice purposes allowed by federal statute, federal
executive order, or a state statute that has been approved by the
attorney general, that authorizes national indices checks.
(3) Procedures. Any record obtained under this compact may be used
only for the official purposes for which the record was requested.
Each compact officer shall establish procedures, consistent with this
compact, and with rules, procedures, and standards established by the
council under Article VI of this section, which procedures shall
protect the accuracy and privacy of the records, and shall:
(a) Ensure that records obtained under this compact are used only
by authorized officials for authorized purposes;
(b) Require that subsequent record checks are requested to obtain
current information whenever a new need arises; and
(c) Ensure that record entries that may not legally be used for a
particular noncriminal justice purpose are deleted from the response
and, if no information authorized for release remains, an appropriate
"no record" response is communicated to the requesting official.
ARTICLE V--RECORD REQUEST PROCEDURES
(1) Positive identification. Subject fingerprints or other
approved forms of positive identification shall be submitted with all
requests for criminal history record checks for noncriminal justice
purposes.
(2) Submission of state requests. Each request for a criminal
history record check utilizing the national indices made under any
approved state statute shall be submitted through that state's criminal
history record repository. A state criminal history record repository
shall process an interstate request for noncriminal justice purposes
through the national indices only if such request is transmitted
through another state criminal history record repository or the FBI.
(3) Submission of federal requests. Each request for criminal
history record checks utilizing the national indices made under federal
authority shall be submitted through the FBI or, if the state criminal
history record repository consents to process fingerprint submissions,
through the criminal history record repository in the state in which
such request originated. Direct access to the national identification
index by entities other than the FBI and state criminal history records
repositories shall not be permitted for noncriminal justice purposes.
(4) Fees. A state criminal history record repository or the FBI:
(a) May charge a fee, in accordance with applicable law, for
handling a request involving fingerprint processing for noncriminal
justice purposes; and
(b) May not charge a fee for providing criminal history records in
response to an electronic request for a record that does not involve a
request to process fingerprints.
(5) Additional search.
(a) If a state criminal history record repository cannot positively
identify the subject of a record request made for noncriminal justice
purposes, the request, together with fingerprints or other approved
identifying information, shall be forwarded to the FBI for a search of
the national indices.
(6) If, with respect to a request forwarded by a state criminal
history record repository under (a) of this subsection, the FBI
positively identifies the subject as having a III system-indexed record
or records:
(i) The FBI shall so advise the state criminal history record
repository; and
(ii) The state criminal history record repository shall be entitled
to obtain the additional criminal history record information from the
FBI or other state criminal history record repositories.
ARTICLE VI--ESTABLISHMENT OF COMPACT COUNCIL
(1) Establishment.
(a) In general. There is established a council to be known as the
"compact council," which shall have the authority to promulgate rules
and procedures governing the use of the III system for noncriminal
justice purposes, not to conflict with FBI administration of the III
system for criminal justice purposes.
(b) Organization. The council shall:
(i) Continue in existence as long as this compact remains in
effect;
(ii) Be located, for administrative purposes, within the FBI; and
(iii) Be organized and hold its first meeting as soon as
practicable after the effective date of this compact.
(2) Membership. The council shall be composed of fifteen members,
each of whom shall be appointed by the attorney general, as follows:
(a) Nine members, each of whom shall serve a two-year term, who
shall be selected from among the compact officers of party states based
on the recommendation of the compact officers of all party states,
except that, in the absence of the requisite number of compact officers
available to serve, the chief administrators of the criminal history
record repositories of nonparty states shall be eligible to serve on an
interim basis.
(b) Two at-large members, nominated by the director of the FBI,
each of whom shall serve a three-year term, of whom:
(i) One shall be a representative of the criminal justice agencies
of the federal government and may not be an employee of the FBI; and
(ii) One shall be a representative of the noncriminal justice
agencies of the federal government.
(c) Two at-large members, nominated by the chairman of the council,
once the chairman is elected pursuant to Article VI(3) of this section,
each of whom shall serve a three-year term, of whom:
(i) One shall be a representative of state or local criminal
justice agencies; and
(ii) One shall be a representative of state or local noncriminal
justice agencies.
(d) One member, who shall serve a three-year term, and who shall
simultaneously be a member of the FBI's advisory policy board on
criminal justice information services, nominated by the membership of
that policy board.
(e) One member, nominated by the director of the FBI, who shall
serve a three-year term, and who shall be an employee of the FBI.
(3) Chairman and vice chairman.
(a) In general. From its membership, the council shall elect a
chairman and a vice chairman of the council, respectively. Both the
chairman and vice chairman of the council:
(i) Shall be a compact officer, unless there is no compact officer
on the council who is willing to serve, in which case the chairman may
be an at-large member; and
(ii) Shall serve a two-year term and may be reelected to only one
additional two-year term.
(b) Duties of vice chairman. The vice chairman of the council
shall serve as the chairman of the council in the absence of the
chairman.
(4) Meetings.
(a) In general. The council shall meet at least once each year at
the call of the chairman. Each meeting of the council shall be open to
the public. The council shall provide prior public notice in the
federal register of each meeting of the council, including the matters
to be addressed at such meeting.
(b) Quorum. A majority of the council or any committee of the
council shall constitute a quorum of the council or of such committee,
respectively, for the conduct of business. A lesser number may meet to
hold hearings, take testimony, or conduct any business not requiring a
vote.
(5) Rules, procedures, and standards. The council shall make
available for public inspection and copying at the council office
within the FBI, and shall publish in the federal register, any rules,
procedures, or standards established by the council.
(6) Assistance from FBI. The council may request from the FBI such
reports, studies, statistics, or other information or materials as the
council determines to be necessary to enable the council to perform its
duties under this compact. The FBI, to the extent authorized by law,
may provide such assistance or information upon such a request.
(7) Committees. The chairman may establish committees as necessary
to carry out this compact and may prescribe their membership,
responsibilities, and duration.
ARTICLE VII--RATIFICATION OF COMPACT
This compact shall take effect upon being entered into by two or
more states as between those states and the federal government. Upon
subsequent entering into this compact by additional states, it shall
become effective among those states and the federal government and each
party state that has previously ratified it. When ratified, this
compact shall have the full force and effect of law within the
ratifying jurisdictions. The form of ratification shall be in
accordance with the laws of the executing state.
ARTICLE VIII--MISCELLANEOUS PROVISIONS
(1) Relation of compact to certain FBI activities. Administration
of this compact shall not interfere with the management and control of
the director of the FBI over the FBI's collection and dissemination of
criminal history records and the advisory function of the FBI's
advisory policy board chartered under the federal advisory committee
act (5 U.S.C. App.) for all purposes other than noncriminal justice.
(2) No authority for nonappropriated expenditures. Nothing in this
compact shall require the FBI to obligate or expend funds beyond those
appropriated to the FBI.
(3) Relating to Public Law 92–544. Nothing in this compact shall
diminish or lessen the obligations, responsibilities, and authorities
of any state, whether a party state or a nonparty state, or of any
criminal history record repository or other subdivision or component
thereof, under the departments of state, justice, and commerce, the
judiciary, and related agencies appropriation act, 1973 (Public Law 92-544), or regulations and guidelines promulgated thereunder, including
the rules and procedures promulgated by the council under Article VI(1)
of this section, regarding the use and dissemination of criminal
history records and information.
ARTICLE IX--RENUNCIATION
(1) In general. This compact shall bind each party state until
renounced by the party state.
(2) Effect. Any renunciation of this compact by a party state
shall:
(a) Be effected in the same manner by which the party state
ratified this compact; and
(b) Become effective one hundred eighty days after written notice
of renunciation is provided by the party state to each other party
state and to the federal government.
ARTICLE X--SEVERABILITY
The provisions of this compact shall be severable, and if any
phrase, clause, sentence, or provision of this compact is declared to
be contrary to the constitution of any participating state, or to the
Constitution of the United States, or the applicability thereof to any
government, agency, person, or circumstance is held invalid, the
validity of the remainder of this compact and the applicability thereof
to any government, agency, person, or circumstance shall not be
affected thereby. If a portion of this compact is held contrary to the
constitution of any party state, all other portions of this compact
shall remain in full force and effect as to the remaining party states
and in full force and effect as to the party state affected, as to all
other provisions.
ARTICLE XI--ADJUDICATION OF DISPUTES
(1) In general. The council shall:
(a) Have initial authority to make determinations with respect to
any dispute regarding:
(i) Interpretation of this compact;
(ii) Any rule or standard established by the council pursuant to
Article V of this section; and
(iii) Any dispute or controversy between any parties to this
compact; and
(b) Hold a hearing concerning any dispute described in (a) of this
subsection at a regularly scheduled meeting of the council and only
render a decision based upon a majority vote of the members of the
council. Such decision shall be published pursuant to the requirements
of Article VI(5) of this section.
(2) Duties of FBI. The FBI shall exercise immediate and necessary
action to preserve the integrity of the III system, maintain system
policy and standards, protect the accuracy and privacy of records, and
to prevent abuses, until the council holds a hearing on such matters.
(3) Right of appeal. The FBI or a party state may appeal any
decision of the council to the attorney general, and thereafter may
file suit in the appropriate district court of the United States, which
shall have original jurisdiction of all cases or controversies arising
under this compact. Any suit arising under this compact and initiated
in a state court shall be removed to the appropriate district court of
the United States in the manner provided by section 1446 of title 28,
United States Code, or other statutory authority.
NEW SECTION. Sec. 3 A new section is added to chapter 43.43 RCW
to read as follows:
(1) The Washington state patrol shall serve as the state compact
officer for the crime prevention and privacy compact as required under
Article III of section 2 of this act, the crime prevention and privacy
compact. The state patrol may form a subcommittee, including members
representing the legislative, judicial, and executive branches of state
government, to perform the functions of the state council. Any such
subcommittee shall include representation of both houses and at least
two of the four largest political caucuses in the legislature.
(2) The state patrol, or a subcommittee if formed for that purpose,
shall:
(a) Review the state patrol's operations and procedures under
section 2 of this act, and recommend policies to the compact
administrator, including policies to be pursued in the administrator's
capacity as the state's representative on the crime prevention and
privacy compact created under Article III of section 2 of this act;
(b) Report annually to the legislature on the crime prevention and
privacy compact operations and procedures under section 2 of this act,
including recommendations for policy changes; and
(c) Not later than December 31, 2007, report to the legislature on
the effectiveness of its functioning as the state council under Article
III of section 2 of this act, and recommend any legislation it deems
appropriate.
(3) The state patrol, or a subcommittee if formed for that purpose,
shall appoint one of its members, or an employee of the state patrol
designated by the chief, to represent the state at meetings of the
crime prevention and privacy compact created under Article III of
section 2 of this act when the compact administrator cannot attend.
NEW SECTION. Sec. 4 A new section is added to chapter 43.43 RCW
to read as follows:
The chief of the Washington state patrol, or an employee of the
state patrol designated by the chief, shall serve as the compact
administrator under Article III of section 2 of this act, the crime
prevention and privacy compact. The legislature intends that the
compact administrator, representing the state on the interstate
commission created under Article III of section 2 of this act, will
take an active role to assure that the interstate compact operates to
protect the safety of the people and communities of the state.
NEW SECTION. Sec. 5 This act takes effect July 1, 2007.
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