BILL REQ. #:  S-0072.1 

Read first time 01/10/11.   Referred to Committee on Human Services & Corrections.

     AN ACT Relating to privacy of nonconviction records; amending RCW 10.97.030, 10.97.040, and 10.97.060; adding a new section to chapter 26.50 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 criminal cases that either never were convictions or are not now convictions, are duplicative or 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 when it is not misleading and 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.
     (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.
     (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.
     (9) "Exonerating disposition" includes criminal charges that were dismissed prior to adjudication, acquittals, criminal charges resolved by the prosecutor's acceptance of bail forfeiture, and criminal convictions that have been vacated. "Exonerating disposition" does not include deferred prosecutions, acquittals by reason of insanity, or dismissals based on lack of competency.

Sec. 3   RCW 10.97.040 and 1979 ex.s. c 36 s 2 are each amended to read as follows:
     No criminal justice agency shall disseminate criminal history record information pertaining to an arrest, detention, indictment, information, or other formal criminal charge made after December 31, 1977, unless the record disseminated states the disposition of such charge to the extent dispositions have been made at the time of the request for the information: PROVIDED, HOWEVER, That if a disposition occurring within ten days immediately preceding the dissemination has not been reported to the agency disseminating the criminal history record information, or if information has been received by the agency within the seventy-two hours immediately preceding the dissemination, that information shall not be required to be included in the dissemination: PROVIDED FURTHER, That when another criminal justice agency requests criminal history record information, the disseminating agency may disseminate specific facts and incidents which are within its direct knowledge without furnishing disposition data as otherwise required by this section, unless the disseminating agency has received such disposition data from either: (1) the state patrol, or (2) the court or other criminal justice agency required to furnish disposition data pursuant to RCW 10.97.045.
     Courts shall not allow public access to juvenile offender or adult criminal case information until after charges are filed in a Washington court of competent jurisdiction; and, if charges are filed in a case, the records of that case shall be associated with a single case number.
     No criminal justice agency shall disseminate criminal history record information which shall include information concerning a felony or gross misdemeanor without first making inquiry of the identification section of the Washington state patrol for the purpose of obtaining the most current and complete information available, unless one or more of the following circumstances exists:
     (1) The information to be disseminated is needed for a purpose in the administration of criminal justice for which time is of the essence and the identification section is technically or physically incapable of responding within the required time;
     (2) The full information requested and to be disseminated relates to specific facts or incidents which are within the direct knowledge of the agency which disseminates the information;
     (3) The full information requested and to be disseminated is contained in a criminal history record information summary received from the identification section by the agency which is to make the dissemination not more than thirty days preceding the dissemination to be made;
     (4) The statute, executive order, court rule, or court order pursuant to which the information is to be disseminated refers solely to information in the files of the agency which makes the dissemination;
     (5) The information requested and to be disseminated is for the express purpose of research, evaluative, or statistical activities to be based upon information maintained in the files of the agency or agencies from which the information is directly sought; or
     (6) A person who is the subject of the record requests the information and the agency complies with the requirements in RCW 10.97.080 as now or hereafter amended.

Sec. 4   RCW 10.97.060 and 1977 ex.s. c 314 s 6 are each amended to read as follows:
     (1) Criminal history record information which consists of nonconviction data only shall be subject to deletion from criminal justice agency files which are available and generally searched for the purpose of responding to inquiries concerning the criminal history of a named or otherwise identified individual when two years or longer have elapsed since the record became nonconviction data as a result of the entry of a disposition favorable to the defendant, or upon the passage of three years from the date of arrest or issuance of a citation or warrant for an offense for which a conviction was not obtained unless the defendant is a fugitive, or the case is under active prosecution according to a current certification made by the prosecuting attorney.
     Such criminal history record information consisting of nonconviction data shall be deleted upon the request of the person who is the subject of the record: PROVIDED, HOWEVER, That the criminal justice agency maintaining the data may, at its option, refuse to make the deletion if:
     (((1))) (a) The disposition was a deferred prosecution or similar diversion of the alleged offender;
     (((2))) (b) The person who is the subject of the record has had a prior conviction for a felony or gross misdemeanor;
     (((3))) (c) The individual who is the subject of the record has been arrested for or charged with another crime during the intervening period.
     (2) Criminal history record information that consists of an exonerating disposition shall be removed from public access and kept in a recordkeeping system that is protected from examination by the public and unauthorized court personnel. Such criminal history record information shall be removed from public access within thirty days after the information becomes an exonerating disposition.
     (3) Nothing in this chapter is intended to restrict the authority of any court, through appropriate judicial proceedings, to order the modification or deletion of a record in a particular cause or concerning a particular individual or event.

NEW SECTION.  Sec. 5   A new section is added to chapter 26.50 RCW to read as follows:
     (1) Courts and other criminal justice agencies shall not make available publicly on the internet any information regarding the registration, filing of a petition for, or issuance of an order for protection if:
     (a) Such publication would be likely to publicly reveal the identity or location of the party protected under such order;
     (b) The request for issuance of an order for protection has been withdrawn; or
     (c) After a hearing, the court has declined to issue an order for protection.
     (2) Courts and other criminal justice agencies may share court generated information and law enforcement generated information contained in secure, governmental registries on the internet for protection order enforcement purposes and for the purposes of oversight and accountability of the courts and criminal justice agencies.

NEW SECTION.  Sec. 6   This act may be known and cited as the records privacy act of 2011.