WSR 97-01-056

PROPOSED RULES

WASHINGTON STATE PATROL

[Filed December 12, 1996, 1:55 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 96-21-112.

Title of Rule: Chapter 446-16 WAC, Washington state identification section and chapter 446-20 WAC, Employment--Conviction records.

Purpose: Standardize terminology used to refer to criminal history record information. Amendments should lessen possible confusion when dealing with criminal record information stored at the state patrol identification and criminal history section.

Statutory Authority for Adoption: Chapters 10.97 and 43.43 RCW.

Summary: Amend sections of chapters 446-16 and 446-20 WAC to standardize terminology.

Reasons Supporting Proposal: Standard terms will lessen possible confusion for agencies and persons who deal with criminal history record information and the Washington State Patrol identification and criminal history section.

Name of Agency Personnel Responsible for Drafting and Implementation: Ms. Susie Coon, 321 Cleveland Avenue, Tumwater, WA, (360) 705-5101; and Enforcement: Captain John Broome, 321 Cleveland Avenue, Tumwater, WA, (360) 705-5350.

Name of Proponent: Washington State Patrol, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: These rules cover the administration of criminal history record information and conviction records by the Washington State Patrol identification and criminal history section. Currently, the rules use different terminology to describe the same things. These amendments will standardize terms, thereby lessening possible confusion when dealing with criminal history record information.

Proposal Changes the Following Existing Rules: Standardize terminology between chapters 446-16 and 446-20 WAC.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Amendments will not change procedures and will not affect small businesses.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Washington State Patrol Main Conference Room, 210 11th Avenue S.W., General Administration Building, 1st Floor, Olympia, WA, on February 6, 1997, at 1:30 - 2:30 p.m.

Assistance for Persons with Disabilities: Contact Ms. Jan Baca by January 31, 1997, (360) 753-0626.

Submit Written Comments to: Ms. Susie Coon, Washington State Patrol Identification Section, P.O. Box 42633, Olympia, WA 98504-2633, FAX (360) 664-9461, by January 27, 1997.

Date of Intended Adoption: February 14, 1997.

December 11, 1996

Annette M. Sandberg

Chief

AMENDATORY SECTION (Amending Order 1, filed 2/11/74)

WAC 446-16-010 Definitions. For the purposes of these rules, the following words and phrases shall have the following meanings:

(1) "Criminal ((offender)) history record information" includes, and shall be restricted to identifying data and public record information recorded as the result of an arrest or other initiation of criminal proceedings and the consequent proceedings related thereto. "Criminal ((offender)) history record information" shall not include intelligence, analytical or investigative reports and files.

(2) "Criminal justice agencies" are those public agencies within or outside the state which perform, as a principal function, activities directly relating to the apprehension, prosecution, adjudication or rehabilitation of criminal offenders.

(3) "Disposition" shall mean that result which is reached at a determination of criminal proceedings against an individual at any stage in the criminal justice system and resulting in the culmination or final disposal of the criminal charge.

(4) "Section" shall mean the section on identification of the Washington state patrol established in RCW 43.43.700, et seq.

[Order 1, 446-16-010, filed 2/11/74.]

AMENDATORY SECTION (Amending WSR 92-15-014, filed 7/6/92, effective 8/6/92)

WAC 446-16-025 Expungement of arrest records. (1) A person desiring the destruction of his fingerprints and/or other identifying data, pursuant to RCW 43.43.730, shall make his request therefor on a form furnished by the Washington state patrol ((section on identification. The request shall be mailed or delivered to the central office of the section located at 3310 Capitol Boulevard, Tumwater, Washington)) identification and criminal history section.

(2) The request shall be completed, signed by the person whose record is sought to be expunged and his signature witnessed. It shall include the address of the applicant, the printed name and the address of the witness to the applicant's signature and such other information requested on the application as identifies the applicant and the offense for which the request of expungement is made.

(3) The request shall include reasonable proof that the person making the request for expungement is the same person whose fingerprints or other identifying data are sought to be expunged. Such proof shall include fingerprints of the applicant if requested by the section.

(4) The request shall include reasonable proof that the person making the request has no prior criminal record and that he has been found not guilty of the offense for which the fingerprints and/or other identifying data were taken or was finally released without a conviction for such offense having been obtained or has other lawful grounds for expungement. Such proof shall include the furnishing of all details pertaining to the finding of not guilty or release without conviction of such criminal charges. Where the finding or release is based on an order of a court, the applicant shall furnish a certified or xeroxed copy of the court order.

[Statutory Authority: RCW 10.97.080 and 10.97.090. 92-15-014, 446-16-025, filed 7/6/92, effective 8/6/92; Order 1, 446-16-025, filed 2/11/74.]

AMENDATORY SECTION (Amending WSR 92-15-014, filed 7/6/92, effective 8/6/92)

WAC 446-16-030 Inspection by the subject of their record. (1) Any person desiring to inspect criminal ((offender)) history record information which refers to themself may do so at the central office of the Washington state ((identification section located at 3310 Capitol Boulevard, Tumwater, Washington)) patrol identification and criminal history section, between the hours of 8 a.m. and 5 p.m., Monday through Friday, excepting legal holidays.

(2) Any person desiring to inspect criminal ((offender)) history record information pertaining to themself shall first permit their fingerprints to be taken by the section for identification purposes if requested to do so. The section, in their discretion, may accept other identification in lieu of fingerprints.

(3) A reasonable period of time, not to exceed 15 minutes, shall be allowed each individual to examine criminal ((offender)) history record information pertaining to themselves.

(4) No person shall be allowed to retain or reproduce any criminal ((offender)) history record information pertaining to themselves except for the purpose of challenge or correction of entries of arrests by submitting law enforcement agencies of the state of Washington. Visual examination only shall be permitted of such information unless the individual asserts their belief that criminal ((offender)) history record information from a submitting law enforcement agency of the state of Washington concerning them is inaccurate, incomplete or maintained in violation of the law; and unless they request correction or completion of the information on a form furnished by the section, or requests expungement pursuant to WAC 446-16-025.

(5) If any person who desires to examine criminal ((offender)) history record information pertaining to themself is unable to read or is otherwise unable to examine same because of a physical disability, they may designate another person of their own choice to assist them. The person about whom the information pertains shall execute, with their mark, a form provided by the section consenting to the inspection of criminal ((offender)) history record information pertaining to themself by another person for the purpose of it being read or otherwise described to them. Such designated person shall then be permitted to read or otherwise describe or translate the criminal ((offender)) history record information to the person about whom it pertains.

[Statutory Authority: RCW 10.97.080 and 10.97.090. 92-15-014, 446-16-030, filed 7/6/92, effective 8/6/92; Order 1, 446-16-030, filed 2/11/74.]

AMENDATORY SECTION (Amending Order 1, filed 2/11/74)

WAC 446-16-070 Report contents--General. The report of disposition shall be made on forms provided by the section. The name of the subject about which the report is made, the designated fingerprints of the subject, the name of the original contributor of the fingerprint or arrest record, and the original arrest number shall be entered on the disposition report exactly the same as they appear on the fingerprint card or arrest record previously forwarded to the section. The ((section)) state identification number should be indicated on the disposition report if known.

[Order 1, 446-16-070, filed 2/11/74.]

AMENDATORY SECTION (Amending WSR 92-15-014, filed 7/6/92, effective 8/6/92)

WAC 446-16-080 Report time limitations. All of the information requested on the disposition report shall be completed and the report mailed to the Washington state patrol identification and criminal history section, ((PO Box 42633, Olympia, Washington 98504-2633,)) within 10 days of the date that a disposition becomes effective.

[Statutory Authority: RCW 10.97.080 and 10.97.090. 92-15-014, 446-16-080, filed 7/6/92, effective 8/6/92. Statutory Authority: RCW 10.97.090. 91-22-055 (Order 91-007), 446-16-080, filed 11/1/91, effective 12/2/91; Order 1, 446-16-080, filed 2/11/74.]

AMENDATORY SECTION (Amending Order 1, filed 2/11/74)

WAC 446-16-100 Prosecutorial agencies--Reporting responsibilities. (1) The prosecutor or city attorney shall complete the disposition report if he determines not to ((press)) file charges or the case is not otherwise acted upon by a judicial body. In such cases, the prosecutor or city attorney shall mail the completed disposition report to the section within 10 days from the date that it is determined no further judicial action will be taken on the charges.

[Order 1, 446-16-100, filed 2/11/74.]

AMENDATORY SECTION (Amending Order 1, filed 2/11/74)

WAC 446-16-110 Courts--Reporting responsibilities. Where the disposition of criminal charges occurs as a result of action taken by or within the jurisdiction of any court in the state of Washington, the disposition of such charges shall be reported to the identification and criminal history section pursuant to rules of the supreme court of the state of Washington on forms approved by the supreme court and supplied by the section.

[Order 1, 446-16-110, filed 2/11/74.]

AMENDATORY SECTION (Amending Order 1, filed 2/11/74)

WAC 446-16-120 Audit of reporting compliance. The identification and criminal history section shall administer a compliance audit procedure at least once annually to insure that all disposition reports have been received and added to the criminal ((offender)) history record information. The identification and criminal history section shall prepare listings of all criminal ((offender)) history record information for which no disposition report has been received and has been outstanding for more than 9 months since the date of arrest. Each criminal justice agency shall be furnished with a list of outstanding disposition reports for criminal ((offender)) history record information of persons who were arrested or against whom charges were filed by that agency. Within 30 days of receipt of such list, each criminal justice agency shall provide the identification and criminal history section with a current disposition report or status report for each person for whom a disposition report is overdue.

[Order 1, 446-16-120, filed 2/11/74.]

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 446-16-040 Reporting of persons detained in custody.

WAC 446-16-050 Report by social and health services on change of parole status--Other changes--Requirements.

AMENDATORY SECTION (Amending Order 80-2, filed 7/1/80)

WAC 446-20-050 Criminal justice agencies. (1) The following agencies shall be considered criminal justice agencies for the purpose of chapter 10.97 RCW and these regulations.

(a) The Washington state patrol, including the state identification section;

(b) Foreign, federal, state, and local governmental law enforcement agencies;

(c) The adult corrections division of the department of social and health services or the department of corrections as specified in chapter 72.02 RCW, including institutions as specified in chapter 72.01 RCW and probation and parole services as specified in chapter 72.04A RCW;

(d) The board of prison terms and paroles;

(e) Courts at any level, if they exercise criminal jurisdiction, for the administration of criminal justice.

(2) Only that subunit of the following agencies which detects, prosecutes, or that work under the direction of the courts shall be considered criminal justice agencies for the purpose of chapter 10.97 RCW and these regulations:

(a) Federal, state and local prosecutorial, correctional programs, agencies or departments;

(b) The liquor control board as specified in RCW 66.44.010 (enforcement division);

(c) The department of labor and industries as specified in chapter 7.68 RCW (victims of crime compensation);

(d) The state fire marshal as specified in RCW 48.48.060(2);

(e) An agency or portion thereof that has been certified as a criminal justice agency pursuant to WAC 446-20-060.

[Statutory Authority: RCW 10.97.080 and 10.97.090. 80-08-057 (Order 80-2), 446-20-050, filed 7/1/80.]

AMENDATORY SECTION (Amending Order 80-2, filed 7/1/80)

WAC 446-20-090 Inspection of record by the subject of record. (1) Any person desiring to inspect criminal history record information which pertains to himself may do so at the central records keeping office of any criminal justice agency or at the ((state identification section located at 3310 Capitol Boulevard, Tumwater, Washington)) Washington state patrol identification and criminal history section, during normal business hours, Monday through Friday, excepting legal holidays.

(2) Any person desiring to inspect criminal history record information pertaining to himself shall first permit his 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, shall be allowed each individual to examine criminal history record information pertaining to himself.

(4) Visual examination only shall be permitted of such information unless the individual asserts his belief that criminal history record information concerning him is inaccurate, or incomplete; and unless he requests correction or completion of the information on a form furnished by the criminal justice agency, or requests expungement 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 criminal history record information pertaining to himself is unable to read or is otherwise unable to examine same because of a physical disability, he may designate another person of his own choice to assist him. The person about whom the information pertains shall execute, with his mark, a form provided by the criminal justice agency consenting to the inspection of criminal history information pertaining to himself by another person for the purpose of it being read or otherwise described to him. Such designated person shall then be permitted to read or otherwise describe or translate the criminal history record information to the person about whom it pertains.

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

[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 Order 80-2, filed 7/1/80)

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 shall not be obligated to further processing of inspection request.

(2) A criminal justice agency maintaining criminal history record information of the individual requesting inspection shall 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 ((identification)) Washington state patrol identification and criminal history section, the agency shall 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 identification section, the agency upon request of the subject of the record, shall forward the request to the ((identification)) Washington state patrol identification and criminal history section for processing.

(c) At the ((identification)) Washington state patrol identification and criminal history section the request shall cause a copy of all Washington state criminal history record information in the files of the ((identification)) Washington state patrol identification and criminal history section relating to the individual requester to be forwarded to the criminal justice agency submitting the request.

(d) Upon receipt by the criminal justice agency of the requester's criminal history record information from the ((identification)) Washington state patrol identification and criminal history section, the agency shall notify the requester at his 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: RCW 10.97.080 and 10.97.090. 80-08-057 (Order 80-2), 446-20-100, filed 7/1/80.]

AMENDATORY SECTION (Amending Order 80-2, filed 7/1/80)

WAC 446-20-170 Secondary dissemination. (1) Criminal justice agencies that receive state ((rap sheets)) criminal history record information from the identification section of the Washington state patrol may disseminate them further, "but only to the same extent to which the identification section itself would be authorized to make a dissemination in the first instance." Nonconviction data based on an incident that arose in the jurisdiction of that agency about to make the dissemination is not subject to this restriction, if the agency is otherwise authorized to disseminate such information.

(2) Noncriminal justice agencies certified to receive criminal history record information from whatever source may use it only for the specific purpose for which the agency is certified and shall not disseminate it further.

(3) Use of criminal history record information contrary to chapter 10.97 RCW or chapter 446-20 WAC may result in suspension or cancellation of certification.

[Statutory Authority: RCW 10.97.080 and 10.97.090. 80-08-057 (Order 80-2), 446-20-170, filed 7/1/80.]

AMENDATORY SECTION (Amending Order 91-004, filed 12/4/91, effective 1/4/92)

WAC 446-20-280 Employment--Conviction records. (1) A ((transcript of a)) conviction record will be furnished consistent with the provisions of RCW 43.43.815, upon the submission of a written or electronic request of any employer, accompanied by fingerprints and other identifying data of the employee or prospective employee.

(2) Fingerprints shall be submitted on cards of the type specified by the ((identification)) Washington state patrol identification and criminal history section, and shall contain a certification by the employer that the information is being disseminated to and will be available only to persons involved in the hiring, background investigation, or job assignment of the person whose record is disseminated, that the record will be used only as necessary for the purposes enumerated in this section, and that the request for conviction data is for one of the following purposes:

(a) Securing a bond required for any employment;

(b) Conducting preemployment and postemployment evaluations of employees and prospective employees who, in the course of employment, may have access to information affecting national security, trade secrets, confidential or proprietary business information, money, or items of value; or

(c) Assisting an investigation of suspected employee misconduct where such misconduct may also constitute a penal offense under the laws of the United States or any state.

[Statutory Authority: RCW 10.97.090. 91-24-099 (Order 91-004), 446-20-280, filed 12/4/91, effective 1/4/92. Statutory Authority: 1982 c 202 1(7). 82-22-006 (Order 82-5), 446-20-280, filed 10/22/82.]

AMENDATORY SECTION (Amending WSR 92-15-015, filed 7/6/92, effective 8/6/92)

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 ((the submission of a)) 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) Civil adjudications of child abuse, as amended by chapter 9A.44 RCW.

((This)) Criminal history information will be furnished from the Washington state patrol, consistent with the provisions of RCW 43.43.830 through 43.43.840, ((on an approved request for criminal history information form available from the Washington State Patrol, Identification and Criminal History Section, PO Box 42633, Olympia, Washington, 98504-2633)) 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 state patrol shall 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 shall 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 Washington state patrol identification and criminal history section, and shall 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, where the applicant's name and date of birth as submitted varies from that of the record contained by the ((identification)) Washington state patrol identification and criminal history section, the right thumb fingerprint impression will be used for identification verification purposes only. An exact name and date of birth match will be required for dissemination of conviction information in the absence of a fingerprint card or thumbprint impression for positive identification or verification of record.

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

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

(f) The business or organization shall 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: 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 Order 91-005, filed 9/24/91, effective 10/25/91)

WAC 446-20-500 Sex offender registration. RCW 9A.44.130 requires any adult or juvenile residing in this state who has been found to have committed or has been convicted of any sex offense to register with the county sheriff for the county of that person's residence. The sheriff is required to forward the registration information to the section within five working days. The Washington state patrol is mandated to maintain a central registry of sex offenders consistent with chapters 10.97, 10.98, and 43.43 RCW. The following regulations implement the provisions of this act.

[Statutory Authority: 1991 c 274. 91-20-045 (Order 91-005), 446-20-500, filed 9/24/91, effective 10/25/91. Statutory Authority: 1990 c 3. 90-20-003 (Order 90-003), 446-20-500, filed 9/20/90, effective 10/21/90.]

AMENDATORY SECTION (Amending Order 91-005, filed 9/24/91, effective 10/25/91)

WAC 446-20-510 History retention. Sex offender registration information will be maintained in the offender's criminal history file according to retention periods outlined in RCW 9A.44.140. Once an offender is registered, a notation of "registered sex offender" shall be printed on the ((rap sheet)) transcript of record for that individual.

[Statutory Authority: 1991 c 274. 91-20-045 (Order 91-005), 446-20-510, filed 9/24/91, effective 10/25/91. Statutory Authority: 1990 c 3. 90-20-003 (Order 90-003), 446-20-510, filed 9/20/90, effective 10/21/90.]

AMENDATORY SECTION (Amending WSR 92-15-015, filed 7/6/92, effective 8/6/92)

WAC 446-20-520 Photographs. Photographs should be of the polaroid type and in color. These are not to be file photos. A new photo is required.

On the reverse side of the photo, write full name, date of birth, and SID number. Paperclip (no staples please) the photo to the fingerprint card with the registration information completed and forward to Washington state patrol, identification and criminal history section((, PO Box 42633, Olympia, WA 98504-2633)).

[Statutory Authority: RCW 43.43.760, 43.43.815 and 43.43.838. 92-15-015, 446-20-520, filed 7/6/92, effective 8/6/92. Statutory Authority: 1990 c 3. 90-20-003 (Order 90-003), 446-20-520, filed 9/20/90, effective 10/21/90.]

AMENDATORY SECTION (Amending Order 91-004, filed 12/4/91, effective 1/4/92)

WAC 446-20-530 Refundable fee. Agencies are to bill the Washington state patrol identification and criminal history section for the actual registration cost not to exceed thirty-two dollars for each registration which shall include photographs and fingerprints submitted pursuant to RCW 9A.44.130. This fee will further ensure that direct and indirect costs at the county level associated with the provisions of this chapter are refunded by the Washington state patrol identification and criminal history section on a monthly basis upon receipt of an invoice from the county sheriff indicating the number of registrations submitted.

[Statutory Authority: RCW 10.97.090. 91-24-099 (Order 91-004), 446-20-530, filed 12/4/91, effective 1/4/92. Statutory Authority: 1990 c 3. 90-20-003 (Order 90-003), 446-20-530, filed 9/20/90, effective 10/21/90.]

REPEALER

The following section of the Washington Administrative Code is repealed: