WSR 97-05-048
PERMANENT RULES
WASHINGTON STATE PATROL
[Filed February 18, 1997, 11:09 a.m.]
Date of Adoption: February 14, 1997.
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.
Citation of Existing Rules Affected by this Order: Amending chapters 446-16 and 446-20 WAC.
Statutory Authority for Adoption: Chapters 10.97 and 43.43 RCW.
Adopted under notice filed as WSR 97-01-056 on December 12, 1996.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, amended 18, repealed 3.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 18, repealed 3.
Number of Sections Adopted using Negotiated Rule Making: New 0, amended 18, repealed 3; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.
Effective Date of Rule: Thirty-one days after filing.
February 14, 1997
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:
WAC 446-20-110 Deletion--Notification.