WSR 12-13-082

PROPOSED RULES

WASHINGTON STATE PATROL


[ Filed June 19, 2012, 11:48 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 12-10-020.

Title of Rule and Other Identifying Information: Employment -- Conviction records.

Hearing Location(s): General Administration Building, Room G-3, 210 11th Avenue S.E., Olympia, WA 98504-2600, on July 27, 2012, at 8:45 a.m.

Date of Intended Adoption: August 1, 2012.

Submit Written Comments to: Deborah Collinsworth, WSP Criminal Records Division, P.O. Box 42619, Olympia, WA 98504-2619, e-mail Deb.collinsworth@wsp.wa.gov, fax (360) 534-2070, by July 26, 2012.

Assistance for Persons with Disabilities: Contact Melissa Van Gorkom by July 20, 2012, (360) 596-4017.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Rule changes are needed to coincide with recent legislative changes in 2012 with the passage of ESB 6296. The changes include but may not be limited to updating the language to allow for an individual to obtain a copy of their nonconviction criminal history for a fee.

Reasons Supporting Proposal: This proposal would make amendments to procedures to coincide with recent legislative changes and provide clarification and clean up to existing language.

Statutory Authority for Adoption: Chapters 10.97 and 43.43 RCW.

Statute Being Implemented: Chapters 10.97 and 43.43 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent:

Name of Agency Personnel Responsible for Drafting: Deborah Collinsworth, P.O. Box 42619, Olympia, WA 98504-2619, (360) 534-2102; Implementation and Enforcement: Criminal Records Division, P.O. Box 42619, Olympia, WA 98504-2619, (360) 534-2102.

No small business economic impact statement has been prepared under chapter 19.85 RCW. It is not anticipated that these proposed changes would have a more than minor impact on small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. These rules will implement changes to coincide with legislative changes and is not considered significant as defined in RCW 34.05.328.

June 12, 2012

John R. Batiste

Chief

OTS-4824.1


AMENDATORY SECTION(Amending WSR 10-01-109, filed 12/17/09, effective 1/17/10)

WAC 446-20-090   Inspection of record by the subject of record.   (1) Any person desiring to inspect his or her criminal history record information or request a copy of his or her nonconviction data for a reasonable fee may do so at the central records keeping office of any criminal justice agency or at the Washington state patrol identification and criminal history section, during normal business hours, Monday through Friday, excepting legal holidays.

(2) Any person desiring to inspect his or her criminal history record information or request a copy of his or her nonconviction data for a reasonable fee must first permit his or her fingerprints to be taken by the criminal justice agency for identification purposes, if requested to do so. The criminal justice agency in its discretion may accept other identification in lieu of fingerprints.

(3) A reasonable period of time, not to exceed thirty minutes, will be allowed each individual to visually examine criminal history record information pertaining to himself or herself.

(4) ((Visual examination only will be permitted of such information unless the individual asserts the belief that their criminal history record information is inaccurate, or incomplete; and unless the person requests correction or completion of the information on a form furnished by the criminal justice agency, or requests deletion pursuant to RCW 10.97.060. Retention or reproduction of nonconviction data is authorized only when it is the subject of challenge.

(5))) If any person who desires to examine his or her criminal history record information is unable to read or is otherwise unable to examine same because of a physical disability, he or she may designate another person of their own choice to assist him or her. The person about whom the information pertains must execute, with his or her mark, a form provided by the criminal justice agency consenting to the inspection of criminal history information pertaining to himself or herself by another person for the purpose of it being read or otherwise described to him or her. Such designated person will then be permitted to read or otherwise describe or translate the criminal history record information to the person about whom it pertains.

(((6))) (5) Each criminal justice agency will develop procedures to ensure that no individual improperly retains or mechanically reproduces nonconviction data during the process of inspection.

[Statutory Authority: Chapters 10.97 and 43.43 RCW. 10-01-109, 446-20-090, filed 12/17/09, effective 1/17/10; 97-05-048, 446-20-090, filed 2/18/97, effective 3/21/97. Statutory Authority: RCW 10.97.080 and 10.97.090. 80-08-057 (Order 80-2), 446-20-090, filed 7/1/80.]


AMENDATORY SECTION(Amending WSR 10-01-109, filed 12/17/09, effective 1/17/10)

WAC 446-20-100   Inspection -- Timeliness and manner of agency response.   (1) A criminal justice agency not maintaining criminal history record information of the individual requesting inspection will not be obligated to further processing of inspection request.

(2) A criminal justice agency maintaining criminal history record information of the individual requesting inspection must respond in the manner following and as soon as administratively convenient, but in no event later than ten business days from the date of the receipt of the request.

(a) If the criminal history record information concerns offenses for which fingerprints were not submitted to the section, the agency must respond by disclosing the identifiable descriptions and notations of arrests, charges, and dispositions that are contained in the files of the agency.

(b) If the criminal history record information concerns offenses for which fingerprints were submitted to the section, the agency upon request of the subject of the record, must forward the request to the section for processing.

(c) The section will copy all Washington state criminal history record information in the files of the section relating to the individual requester and forward it to the criminal justice agency submitting the request. The section may provide a copy of the individual's nonconviction data directly to the subject of record upon written request from the individual for a reasonable fee.

(d) Upon receipt by the criminal justice agency of the requester's criminal history record information, the agency will notify the requester at his or her designated address or telephone number that the requested information is available for inspection. The subject of the criminal history record information must appear at the agency during its normal business hours for purpose of inspecting the record.

[Statutory Authority: Chapters 10.97 and 43.43 RCW. 10-01-109, 446-20-100, filed 12/17/09, effective 1/17/10; 97-05-048, 446-20-100, filed 2/18/97, effective 3/21/97. Statutory Authority: RCW 10.97.080 and 10.97.090. 80-08-057 (Order 80-2), 446-20-100, filed 7/1/80.]


AMENDATORY SECTION(Amending WSR 10-01-109, filed 12/17/09, effective 1/17/10)

WAC 446-20-285   Employment -- Conviction records(( -- Child and adult abuse information)).   ((After January 1, 1988, certain child and adult abuse)) Conviction information will be furnished by the state patrol upon written or electronic request of any applicant, business or organization, the state board of education, or the department of social and health services. This information will consist of the following:

(1) Convictions of crimes ((against children or other persons as defined in RCW 43.43.830(6), and as amended by chapter 9A.44 RCW));

(2) Department of health disciplinary authority final decisions of specific findings of physical or sexual abuse or exploitation of a child and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary authority final decision for the businesses and professions defined in chapter 9A.44 RCW; and

(3) Criminal history information will be furnished from the section, consistent with the provisions of RCW 43.43.830 through 43.43.840, upon receipt of a written or electronic request.

School districts, the superintendent of public instruction, educational service districts and their contractors will also receive conviction information under RCW 10.97.030 and 10.97.050 pursuant to chapter 159, Laws of 1992.

The section will also furnish any similar records maintained by the Federal Bureau of Investigation or records in custody of the National Crime Information Center, if available, subject to their policies and procedures regarding such dissemination.

(a) The business or organization making such request will not make an inquiry to the Washington state patrol or an equivalent inquiry to a federal law enforcement agency unless the business or organization has notified the applicant who has been offered a position as an employee or volunteer that an inquiry may be made.

(b) For positive identification, the request for criminal history information form may be accompanied by fingerprint cards of a type specified by the section, and must contain a certification by the business or organization; the state board of education; or the department of social and health services, that the information is being requested and will be used only for the purposes as enumerated in RCW 43.43.830 through 43.43.845.

(c) In the absence of fingerprint cards, the applicant may provide a right thumb fingerprint impression in the area provided on the request for criminal history information form. In the event of a possible match to the applicant's name and date of birth, the right thumb fingerprint impression will be used for identification verification purposes only.

(d) After processing a properly completed request for criminal history information form, if the conviction record, disciplinary authority final decision, or equivalent response from a federal law enforcement agency shows no evidence of crimes ((against persons)), an identification declaring the showing of no evidence will be issued to the business or organization by the section within fourteen working days of receipt of the request. Possession of such identification will satisfy future record check requirements for the applicant for a two-year period.

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

(f) The business or organization will be immune from civil liability for failure to request background information on a prospective employee or volunteer unless the failure to do so constitutes gross negligence.

[Statutory Authority: Chapters 10.97 and 43.43 RCW. 10-01-109, 446-20-285, filed 12/17/09, effective 1/17/10. Statutory Authority: RCW 10.97.030 and 43.830-845 [43.43.830-43.43.845]. 03-05-007, 446-20-285, filed 2/7/03, effective 3/10/03. Statutory Authority: Chapters 10.97 and 43.43 RCW. 97-05-048, 446-20-285, filed 2/18/97, effective 3/21/97. Statutory Authority: RCW 43.43.760, 43.43.815 and 43.43.838. 92-15-015, 446-20-285, filed 7/6/92, effective 8/6/92. Statutory Authority: RCW 10.97.090. 91-24-099 (Order 91-004), 446-20-285, filed 12/4/91, effective 1/4/92. Statutory Authority: 1990 c 3. 90-20-003 (Order 90-003), 446-20-285, filed 9/20/90, effective 10/21/90. Statutory Authority: RCW 43.43.838. 89-23-017, 446-20-285, filed 11/6/89, effective 12/7/89. Statutory Authority: RCW 43.43.838 and 1987 c 486 5. 88-07-066 (Order 88-03-A), 446-20-285, filed 3/17/88.]


AMENDATORY SECTION(Amending WSR 10-01-109, filed 12/17/09, effective 1/17/10)

WAC 446-20-300   Privacy -- Security.   (1) All employers or prospective employers receiving conviction records pursuant to RCW 43.43.815, must comply with the provisions of WAC 446-20-210 through 446-20-250 relating to privacy and security of the records.

(2) Businesses or organizations, the state board of education, and the department of social and health services receiving conviction records ((of crimes against persons)) or disciplinary board final decision information must comply with the provisions of WAC 446-20-220 (1) and (3) relating to privacy and security of the records.

(a) The business or organization must 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 prohibition is subject to a civil action for damages.

(b) No employee of the state, employee of a business or organization, or the organization is liable for defamation, invasion of privacy, negligence, or any other claim in connection with any lawful dissemination of information under RCW 43.43.830 through 43.43.840 or 43.43.760.

[Statutory Authority: Chapters 10.97 and 43.43 RCW. 10-01-109, 446-20-300, filed 12/17/09, effective 1/17/10. Statutory Authority: RCW 43.43.760, 43.43.815 and 43.43.838. 92-15-015, 446-20-300, filed 7/6/92, effective 8/6/92. Statutory Authority: RCW 43.43.838 and 1987 c 486 5. 88-07-066 (Order 88-03-A), 446-20-300, filed 3/17/88. Statutory Authority: 1982 c 202 1(7). 82-22-006 (Order 82-5), 446-20-300, filed 10/22/82.]


AMENDATORY SECTION(Amending WSR 10-01-109, filed 12/17/09, effective 1/17/10)

WAC 446-20-310   Audits.   (1) All employers or prospective employers receiving conviction records pursuant to RCW 43.43.815 must comply with the provisions of WAC 446-20-260 through 446-20-270 relating to audit of the recordkeeping system.

(2) Businesses or organizations, the state board of education and the department of social and health services receiving conviction records ((of crimes against persons)) or disciplinary board final decision information may be subject to periodic audits by Washington state patrol personnel to determine compliance with the provisions of WAC 446-20-300(2).

[Statutory Authority: Chapters 10.97 and 43.43 RCW. 10-01-109, 446-20-310, filed 12/17/09, effective 1/17/10. Statutory Authority: RCW 10.97.090. 91-24-099 (Order 91-004), 446-20-310, filed 12/4/91, effective 1/4/92. Statutory Authority: RCW 43.43.838 and 1987 c 486 5. 88-07-066 (Order 88-03-A), 446-20-310, filed 3/17/88. Statutory Authority: 1982 c 202 1(7). 82-22-006 (Order 82-5), 446-20-310, filed 10/22/82.]


AMENDATORY SECTION(Amending WSR 10-01-109, filed 12/17/09, effective 1/17/10)

WAC 446-20-600   Fees.   (1) A nonrefundable fee must accompany each request for conviction records submitted for a name and date of birth background check or a background check requested by fingerprint search at the state level pursuant to RCW 43.43.830 through 43.43.845, and chapter 10.97 RCW unless through prior arrangement, an account is authorized and established.

(2) A nonrefundable FBI fee will be charged for fingerprint cards submitted for federal searches. It will be the responsibility of the section to collect all fees due and forward fingerprint cards and fees to the FBI.

(3) A nonrefundable fee will be charged for taking fingerprint impressions by the section. Fees are to be deposited in the Washington state patrol fingerprint identification account.

(4) A reasonable fee will be charged for a request for nonconviction data in lieu of a record review pursuant to RCW 10.97.080.

(5) All fees are to be made payable to the Washington state patrol and are to be remitted by cash, cashier's check, money order or check written on a business account. Credit cards may be used only for payment of electronic requests and for any other fingerprint or conviction record services the state patrol has implemented credit card payment procedures. The section must adjust the fee schedule as may be practicable to ensure that direct and indirect costs associated with the provisions of these chapters are recovered.

(((5))) (6) Pursuant to the provisions of RCW 43.43.838 and chapter 28A.410 RCW, no fees will be charged to a nonprofit organization, or volunteers in school districts and educational service districts for background checks.

[Statutory Authority: Chapters 10.97 and 43.43 RCW. 10-01-109, 446-20-600, filed 12/17/09, effective 1/17/10. Statutory Authority: RCW 10.97.100, 43.43.742. 05-03-034, 446-20-600, filed 1/10/05, effective 2/10/05. Statutory Authority: RCW 43.43.742 through 43.43.845 and chapter 10.97 RCW. 99-07-050, 446-20-600, filed 3/15/99, effective 4/15/99. Statutory Authority: RCW 43.43.830 - [43.43.]845, chapters 10.97, 28A.400 and 74.15 RCW. 96-18-017, 446-20-600, filed 8/26/96, effective 9/26/96.]

Washington State Code Reviser's Office