BILL REQ. #:  H-0618.1 

Read first time 01/29/13.   Referred to Committee on Judiciary.

     AN ACT Relating to nonconviction records; adding a new chapter to Title 10 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature recognizes that the openness of court proceedings and court records is an important hallmark of our justice system and a strong tenet of our Constitution. Openness serves a number of public interests, including the interest in judicial transparency and public oversight of the judicial system. However, the legislature finds that in a global and increasingly electronic environment, unintended harmful consequences can result from employer and landlords' unlimited access to nonconviction records. Permanent, online, worldwide public access to nonconviction court and law enforcement records, used to deny employment and housing, was not contemplated at the time the Constitution or the criminal records privacy act, chapter 10.97 RCW, was adopted. Once nonconviction records are disseminated and no longer in the government's control, however, accusations of wrongdoing can be and are used inappropriately by employers and landlords to exclude applicants from consideration for employment and housing opportunities despite the legal presumption of innocence. While public safety benefits may be realized when employment and housing decisions are based on accurate, up-to-date, and complete government records regarding criminal history, such benefits are not realized through consideration of nonconviction records.
     The legislature finds that exclusion of applicants from consideration for employment or housing opportunities based solely on nonconviction records is particularly unjust when an individual was never convicted of the crime for which the records still exist. The harmful effect of nonconviction records, including a lifetime of reduced earning potential, continues indefinitely, despite the fact that the person is legally presumed innocent of the offense at issue, or in the case of a vacated conviction, has been given the right under a court order pursuant to long-standing statutes to state that he or she has not been convicted of that offense. Additionally, the legislature finds that by removing the barrier to housing and employment posed by nonconviction records, the state promotes important public interests, including the interest in conserving scarce governmental resources, keeping individuals and families out of poverty, and reducing the effects of racial disparities in the criminal justice system.
     Both our legislature and our supreme court have determined that some interests are sufficiently significant to outweigh the presumption of openness of court records. Therefore, the legislature finds that privacy, safety, shelter, employment, and other significant individual and public interests constitute compelling circumstances that justify the provisions of this chapter.

NEW SECTION.  Sec. 2   The Washington supreme court is respectfully requested to implement the public policy interests outlined in section 1 of this act by adopting court rules authorizing courts to:
     (1) Redact or seal nonconviction court records, including redacting the public court index, or replacing the charge in all publicly accessible records with the label "nonconviction," or both, in individual cases, to the extent necessary to prevent harm to the individual as described in section 1 of this act; and
     (2) At such time as it may be technologically and economically feasible within the judicial information system, provide a process for removing from public access, while retaining for other purposes, information about nonconviction court records in public court indices.

NEW SECTION.  Sec. 3   For the purposes of this chapter, "nonconviction records" means:
     (1) Information contained in records collected by the courts relating to:
     (a) Arrest, probable cause hearings, citation, charge, and service of warrant relating to an incident that did not lead to a conviction and for which proceedings are no longer actively pending. There must be a rebuttable presumption that proceedings are no longer actively pending if more than one year has elapsed since the arrest, citation, charge, or service of warrant and no disposition has been entered;
     (b) Charges resulting in a dismissal, excluding dismissals based on incompetency or following the completion of a deferred prosecution pursuant to chapter 10.05 RCW;
     (c) Charges resulting in acquittal other than insanity acquittals;
     (d) Convictions after a pardon on that conviction has been granted;
     (e) Charges dismissed under a stipulated order of continuance or similar agreement;
     (f) Charges dismissed pursuant to completion of a deferred sentence under RCW 3.50.320, 9.95.240, 35.20.255, or chapter 3.66 RCW;
     (g) Charges dismissed following vacation of the conviction under RCW 9.94A.640, 9.95.240, or 9.96.060; and
     (h) Charges resolved by forfeiture of bail other than in traffic, hunting, and fishing cases; or
     (2) Nonconviction data as defined in chapter 10.97 RCW.
     In cases where charges are reduced or dismissed pursuant to a plea bargain, whether as part of a single or multiple cause numbers, the parts of records that relate to charges that satisfy the definition of nonconviction records must be treated as nonconviction records.

NEW SECTION.  Sec. 4   (1) An employer may not include a question on any application for employment, or inquire either orally or in writing, or receive information through a criminal history background check, about nonconviction records.
     (2) An employer may not reject an applicant for employment on the basis of nonconviction records.
     (3) This section does not apply to:
     (a) Any employer hiring a person who will care for children under the age of eighteen, a vulnerable adult under chapter 74.34 RCW, or a vulnerable person as defined in RCW 9.96A.060; or
     (b) Any employer who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant or employee's arrest record for employment purposes.

NEW SECTION.  Sec. 5   (1) Landlords may not include a question on any rental application, inquire either orally or in writing, or receive information through a criminal history background check, about nonconviction records of a prospective tenant.
     (2) A landlord may not reject an applicant for tenancy on the basis of nonconviction records.
     (3) This section does not apply to any landlord who is specifically permitted by other provisions of law to consider or reject tenants based on nonconviction court records.

NEW SECTION.  Sec. 6   A right of action to enforce this chapter is authorized. It is presumed that damages to the applicant are equal to the cost of the application, if any, plus one hundred dollars. Fees and costs may be recovered, but additional damages must be proved.

NEW SECTION.  Sec. 7   Sections 1 and 3 through 6 of this act constitute a new chapter in Title 10 RCW.