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NO. 151. AN ACT RELATING TO FINGERPRINTING AND CRIMINAL HISTORY RECORDS.

(S.200)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. FINDINGS

The general assembly finds that:

(1) Law enforcement agencies throughout the world have established fingerprint comparison as the universal method of verifying a subject’s identity and ensuring the integrity of criminal record systems.

(2) During the second quarter of 1998, fewer than 33 percent of defendants arraigned in Vermont district courts were positively identified through fingerprints; many of those identified by names and dates of birth were cited for minor misdemeanors.

(3) When compared to other states, Vermont ranks last in the percentage of defendants fingerprinted at arrest. In Vermont, there has been a preference not to arrest in the case of lesser crimes, but rather to cite a suspect into court.

(4) Failure to positively identify a person through the use of fingerprints may result in a person falsely using another’s identity. Defendants who assume an alias are able to avoid a criminal record under their true identity or are able to establish multiple criminal records under different aliases. These deceptions undermine the integrity of criminal records and limit the effectiveness of the use of criminal histories.

(5) In the event of serious crimes, failure to positively identify a person through the use of fingerprints is a threat to public safety since a person’s risk of flight or threat to the victim and community cannot be accurately assessed until the subject has been identified and an accurate criminal history is available for criminal justice decision making.

(6) Records of arrests and citations cannot be submitted to the FBI unless the event is supported by fingerprints. Because Vermont fingerprints are taken in so few cases, the vast majority of criminal arrests and citations in Vermont are not reported to the FBI. Failure to include Vermont criminal history information in the FBI National Database is a serious public safety issue.

(7) Currently, Vermont is the only state which does not charge a user fee for the release of criminal record information. A fee for nongovernmental criminal record requests could serve as a source of revenue to be used by the department of public safety for personnel and equipment related to the processing, maintenance and dissemination of criminal history records.

(8) It is not the intent of the general assembly to restrict public or press access to criminal history records that are public documents.

Sec. 2. 20 V.S.A. § 2061 is added to read:

§ 2061. FINGERPRINTING

(a) A law enforcement officer shall take, or cause to be taken, the fingerprints and photographs of a person if the person is arrested or given a summons or citation for a felony or for being a fugitive from justice.

(b) A law enforcement officer may take, or cause to be taken, the fingerprints and photographs of a person who is arrested or given a summons or citation for a misdemeanor, only in the event that the officer would be permitted to make an arrest under Rule 3 of the Vermont Rules of Criminal Procedure.

(c) A person who is to be fingerprinted and photographed under subsection (a) or (b) of this section and who is not arrested may be detained for a reasonable period of time for the sole purpose of obtaining the person’s fingerprints and photographs. Such a detention shall not constitute an arrest, and shall be for the sole purpose of accurately identifying the person. Upon completion of the fingerprinting and photographing, the detention shall terminate, and the person shall be released in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure.

(d) When a defendant who may be fingerprinted and photographed under subsection (a) of this section is arraigned and has not been previously fingerprinted and photographed in connection with the criminal proceedings leading to the arraignment, the defendant shall submit to be fingerprinted and photographed at a time and place set by the court. When a defendant is arraigned for any misdemeanor and has not been previously fingerprinted and photographed in connection with the criminal proceedings leading to the arraignment, upon request of the attorney for the state and for good cause shown, the court shall order that the defendant submit to be fingerprinted and photographed at a time and place set by the court.

(e) If a defendant is convicted of a misdemeanor or a felony and the conviction results in a sentence of imprisonment, whether that sentence is to be served, deferred or suspended, and the defendant has not been previously fingerprinted and photographed in connection with the criminal proceedings leading to the conviction, upon the request of the attorney for the state, the defendant shall submit to be fingerprinted and photographed at a time and place set by the court as a condition of probation.

(f) When a charge for a criminal offense is filed against a person already in the custody of a law enforcement agency or the department of corrections, and such charges are filed in a case separate from the case for which the person is in custody, the arresting officer or other appropriate official shall take the fingerprints and photographs of the person in connection with the new case.

(g) Persons in charge of correctional facilities shall obtain fingerprints and photographs of all offenders lodged at correctional facilities pursuant to a criminal offense.

(h) If a law enforcement officer or other authorized person requests to take the fingerprints and photographs of a person who may be fingerprinted and photographed under this section, that person shall submit to taking of fingerprints and photographs.

(i) Fingerprints and photographs taken pursuant to this section shall be forwarded to the Vermont crime information center.

(j) In all cases, fingerprints and photographs shall be taken in the form specified by the commissioner of public safety, and shall be accompanied by additional identifying demographic information as required by rules adopted by the commissioner.

(k) The Vermont crime information center, law enforcement agencies and correctional facilities shall destroy all copies of fingerprints and photographs of accused persons that were taken in connection with a particular alleged offense in any of the following circumstances:

(1) No criminal charge is filed by the state.

(2) The court does not make a determination of probable cause at the time of arraignment or dismisses the charge at the time of arraignment.

(3) The defendant is acquitted after a trial of all charges related to the incident which prompted the taking of the fingerprints and photographs.

(4) All criminal charges related to an incident that caused fingerprints and photographs to be taken are dismissed by either the court or the state after arraignment, unless the attorney for the state can show good cause why the fingerprints and photographs should not be destroyed.

(l) The Vermont crime information center shall establish procedures for providing prompt notification to law enforcement agencies and correctional facilities where the destruction of photographs and fingerprints is required.

(m) The Vermont crime information center may electronically transmit fingerprints and photographs of accused persons to the Federal Bureau of Investigation (FBI) at any time after arrest, summons or citation for the sole purpose of identifying an individual. However, the Vermont crime information center shall not forward fingerprints and photographs to the FBI for the purpose of inclusion in the National Crime Information Center Database until after arraignment. If the Vermont crime information center forwards fingerprints and photographs to the FBI after arraignment and the defendant is acquitted, the Vermont crime information center shall request the FBI to destroy the fingerprints and photographs. If the Vermont crime information center forwards fingerprints and photographs to the FBI after arraignment and all charges against the defendant are dismissed, the Vermont crime information center shall request the FBI to destroy the fingerprints and photographs, unless the attorney for the state can show good cause why the fingerprints and photographs should not be destroyed.

(n) The commissioner of public safety shall adopt rules to implement this section.

Sec. 3. 20 V.S.A. § 2062 is added to read:

§ 2062. FINGERPRINTING FEES

State, county and municipal law enforcement agencies may charge a fee of not more than $15.00 for providing persons with a set of classifiable fingerprints. No fee shall be charged to retake fingerprints determined by the Vermont criminal information center not to be classifiable. Fees collected by the state of Vermont under this section shall be credited to the fingerprint fee special fund established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5, and shall be available to the department of public safety to offset the costs of providing these services.

Sec. 4. 20 V.S.A. § 2063 is added to read:

§ 2063. CRIMINAL HISTORY RECORD FEES; CRIMINAL HISTORY RECORD CHECK FUND

(a) Except as otherwise provided for in this section, the cost of each criminal history check based on name and date of birth shall be $10.00.

Out-of-state criminal history record checks shall include any additional fees charged by the state from which the record is requested.

(b) Requests made by criminal justice agencies for criminal justice purposes or other purposes authorized by state or federal law shall be exempt from all record check fees. The following types of requests shall be exempt from the Vermont criminal record check fee:

(1) Requests made by governmental agencies or entities regulated by governmental agencies in accordance with local, state or federal law or regulation which requires a criminal record check for employment or licensing.

(2) Requests made by researchers approved by the center to conduct research related to the administration of criminal justice.

(3) Requests made by individuals to review their own record at the Vermont criminal information center; however, copies of the individual’s record are not exempt from the record check fee.

(c) The criminal history record check fund is established and shall be managed by the commissioner of public safety in accordance with the provisions of Title 32, chapter 7, subchapter 5. All fees paid under this section shall be placed in the fund and used for personnel and equipment related to the processing, maintenance and dissemination of criminal history records. The commissioner of finance and management may draw warrants for disbursements from this fund in anticipation of receipts.

(d) The department of public safety shall have the authority, with the approval of the secretary of administration, to establish limited service positions as are necessary to provide criminal record checks in a timely manner, provided that there are sufficient funds in the criminal history record check fund to pay for the costs of these positions.

Sec. 5. 20 V.S.A. § 2056a is added to read:

§ 2056a. DISSEMINATION OF CRIMINAL HISTORY RECORDS TO CRIMINAL JUSTICE AGENCIES

(a) As used in this section:

(1) “Criminal history record” means all information documenting an individual’s contact with the criminal justice system, including data regarding identification, arrest or citation, arraignment, judicial disposition, custody and supervision.

(2) “Criminal justice agencies” means all Vermont courts and other governmental agencies or subunits thereof that allocate at least 50 percent of the agency’s annual appropriation to criminal justice purposes.

(3) “Criminal justice purposes” means the investigation, apprehension, detention, adjudication or correction of persons suspected, charged or convicted of criminal offenses. Criminal justice purposes shall also include criminal identification activities, the collection, storage and dissemination of criminal history records and screening for criminal justice employment.

(4) “The center” means the Vermont crime information center.

(b) A criminal justice agency may request a person’s criminal history record from the center for criminal justice purposes or other purposes authorized by state or federal law. Upon the request of a criminal justice agency, the center shall prepare and release a person’s Vermont criminal history record, provided that the criminal justice agency has filed a user’s agreement with the center. The user’s agreement shall require the criminal justice agency to comply with all federal and state laws, rules, regulations and policies regulating the release of criminal history records and the protection of individual privacy. The user’s agreement shall be signed and kept current by the agency.

(c) A criminal justice agency may obtain criminal history records from other states and the Federal Bureau of Investigation through the center, provided that the criminal justice agency has filed a user’s agreement with the center. Release of interstate and Federal Bureau of Investigation criminal history records to criminal justice agencies is subject to the rules and regulations of the Federal Bureau of Investigation’s National Crime Information Center.

(d) A criminal history record obtained from the center shall be admissible evidence in the courts of this state.

(e) No person shall confirm the existence or nonexistence of criminal history record information to any person who would not be eligible to receive the information pursuant to this subchapter.

(f) A person who violates the provisions of this section with respect to unauthorized disclosure of confidential criminal history record information obtained from the center under the authority of this section shall be fined not more than $5,000.00. Each unauthorized disclosure shall constitute a separate civil violation.

Sec. 6. 20 V.S.A. § 2056b is added to read:

§ 2056b. DISSEMINATION OF CRIMINAL HISTORY RECORDS TO PERSONS CONDUCTING RESEARCH

(a) The center may provide Vermont criminal history records to bona fide persons conducting research related to the administration of criminal justice, subject to conditions approved by the commissioner of public safety to assure the confidentiality of the information and the privacy of individuals to whom the information relates.

(b) No person shall confirm the existence or nonexistence of criminal history record information to any person who would not be eligible to receive the information pursuant to this subchapter.

(c) A person who violates the provisions of this section with respect to unauthorized disclosure of confidential criminal history record information obtained from the center under the authority of this section shall be fined not more than $5,000.00. Each unauthorized disclosure shall constitute a separate civil violation.

Sec. 7. 20 V.S.A. § 2056c is added to read:

§ 2056c. DISSEMINATION OF CRIMINAL HISTORY RECORDS TO EMPLOYERS

(a) As used in this section:

(1) “Applicant” means an individual seeking or being sought for employment or a volunteer position with an employer.

(2) "Criminal record" means the record of convictions in Vermont and convictions in other jurisdictions.

(3) “Employer” means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, which has one or more individuals performing services for it within this state; and

(A) the employer is a qualified entity that provides care or services to vulnerable classes as provided in 42 U.S.C. §§ 5119a and 5119c; or

(B) the employer is a postsecondary school with student residential facilities.

(4) “The center” means the Vermont crime information center.

(5) “Vulnerable classes” means children, the elderly, and persons with disabilities as defined in 42 U.S.C. § 5119c.

(b) An employer may obtain from the center a Vermont criminal record and an out-of-state criminal record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center. The user’s agreement shall require the employer to comply with all statutes, rules and policies regulating the release of criminal records and the protection of individual privacy. The user’s agreement shall be signed and kept current by the employer.

(c) The employer may obtain the criminal record only after the applicant has been given an offer of employment conditioned on the record check or after a volunteer has been offered a position conditioned on the record check.

(d) Postsecondary school employers may obtain criminal records only for applicants who apply for employment or volunteer positions that provide access to student residential facilities.

(e) The release form shall contain the applicant’s name, signature, date of birth, place of birth and the signature as attested to by a notary public. The release form shall state that the applicant has the right to appeal the findings to the center, pursuant to rules adopted by the commissioner of public safety.

(f) No person shall confirm the existence or nonexistence of criminal record information to any person who would not be eligible to receive the information pursuant to this subchapter.

(g) A person who violates the provisions of this section with respect to unauthorized disclosure of confidential criminal history record information obtained from the center under the authority of this section shall be fined not more than $5,000.00. Each unauthorized disclosure shall constitute a separate civil violation.

(h) The center shall provide notice of the penalty for unauthorized disclosure on a form accompanying any report of a criminal record to an employer. The notice shall include, in boldface print, the following statements:

THE REQUESTOR AGREES TO USE CRIMINAL RECORD INFORMATION RECEIVED FROM THE VERMONT CRIME INFORMATION CENTER FOR THE PURPOSES INTENDED BY LAW. THE REQUESTOR AGREES NOT TO DISCLOSE THE CONTENTS OF ANY CRIMINAL RECORD INFORMATION WITHOUT THE APPLICANT’S PERMISSION TO ANY PERSON OTHER THAN THE APPLICANT AND PROPERLY DESIGNATED EMPLOYEES WHO HAVE A DOCUMENTED NEED TO KNOW THE CONTENTS OF THE RECORD. A VIOLATION MAY RESULT IN A FINE OF UP TO $5,000.00. EACH UNAUTHORIZED DISCLOSURE SHALL CONSTITUTE A SEPARATE CIVIL VIOLATION.

(i) Nothing in this section shall create a statutory duty for an employer to perform a criminal record check on every job applicant hired by the employer. An employer’s failure to obtain a criminal record on an employee who subsequently commits a criminal offense shall not be the sole factor in determining civil or criminal liability unless otherwise authorized by law.

Sec. 8. 20 V.S.A. § 2056d is added to read:

§ 2056d. CRIMINAL HISTORY RECORDS AND OTHER IDENTIFICATION RECORDS

(a) Statewide criminal history records shall be released only by the center.

(b) Information other than criminal history records, such as state identification numbers, shall be released only with the express approval of the commissioner of public safety or in compliance with the order of a court of competent jurisdiction.

Sec. 9. REPEAL

20 V.S.A. § 1877 (fingerprints and other identification data) is repealed.

Sec. 10. 4 V.S.A. § 1101 is amended to read:

§ 1101. DEFINITIONS

As used in this chapter:

* * *

(3) "Violation" means a minor fish and wildlife violation as defined in 10 V.S.A. § 4572, a littering or illegal dumping violation as provided in 24 V.S.A. § 2201, a traffic violation as defined in 23 V.S.A. § 2302, *[and]* a civil ordinance violation as provided in 24 V.S.A. § 1974a, a hazing violation as provided in 16 V.S.A. chapter 1, subchapter 9, and an unauthorized disclosure of criminal history record information violation as provided in 20 V.S.A. §§ 2056a, 2056b and 2056c.

Sec. 11. 4 V.S.A. § 1102(b) is amended to read:

(b) The bureau shall have jurisdiction of the following matters:

(1) traffic violations alleged to have been committed on or after July 1, 1990;

(2) civil ordinance violations alleged to have been committed on or after July 1, 1994;

(3) minor fish and wildlife violations alleged to have been committed on or after September 1, 1996;

(4) *[for]* violations of 7 V.S.A. § 1005(a), relating to possession of tobacco products by a person less than 18 years of age; *[and]*

(5) *[for]* violations of 7 V.S.A. § 1007, relating to furnishing tobacco products to a person under the age of 18 years*[.]*;

(6) violations of 24 V.S.A. § 2201, relating to littering and illegal dumping*[.]*;

(7) violations of 16 V.S.A. § chapter 1, subchapter 9, *[related]* relating to hazing; and

(8) violations of 20 V.S.A. §§ 2056a, 2056b and 2056c, relating to unauthorized disclosure of criminal record information.

Sec. 12. REPORT; DEPARTMENT OF PUBLIC SAFETY AND AGENCY OF HUMAN SERVICES

(a) The commissioner of the department of public safety and the secretary of the agency of human services, in collaboration, shall report to the general assembly by January 15, 2001, recommendations to provide access to employee and volunteer criminal history information to businesses and organizations that work with vulnerable classes. For purposes of this section, “vulnerable classes” shall include children, the elderly, and persons with disabilities as defined in 42 U.S.C. § 5119c.

(b) The commissioner and secretary shall:

(1) consult with businesses and organizations that work with vulnerable classes to assess their needs with regard to access to criminal history information and the financial capabilities of such businesses and organizations, as well as that of persons who are current or potential employees or volunteers of such businesses and organizations, to pay fees for access to criminal history records; and

(2) hold at least three public hearings.

(c) The report shall include:

(1) recommendations for the implementation of a plan to provide access to the adult abuse registry and the child abuse registry to any employer required to check either registry for employment purposes;

(2) recommendations for the implementation of a plan to provide access to employee and volunteer criminal history information to businesses and organizations that work with vulnerable classes in compliance with 42 U.S.C. §§ 5119a and 5119c;

(3) a detailed list of the various types of businesses and organizations that work with vulnerable classes, and an estimate of the annual number of requests for employee or volunteer criminal history information that could be expected if the recommendations were implemented;

(4) a list of types of businesses and organizations that work with vulnerable classes that currently receive employee or volunteer criminal history information, the type of information they receive and whether a criminal history check is required by law; and

(5) a source of funding for providing businesses and organizations that work with vulnerable classes access to criminal history information as recommended in the report. The financial resources of such businesses and organizations and those of current and potential employees and volunteers of such businesses and organizations shall be important considerations in determining an appropriate funding plan.

Sec. 13. REPORT; AGENCY OF COMMERCE AND COMMUNITY DEVELOPMENT

(a) The secretary of the agency of commerce and community development, in consultation with the department of public safety, shall report to the general assembly by January 15, 2001, recommendations regarding the advisability of providing access to employee and volunteer criminal record information to employers and recommendations for implementation of a plan to provide access to criminal record information.

(b) The secretary shall consult with a broad range of employers and labor organizations:

(1) to identify the needs of employers with regard to access to criminal record information;

(2) to examine the issue of the protection of individual privacy; and

(3) to assess the financial capabilities of employers, as well as those of persons who are current or potential employees or volunteers of such employers, to pay fees for access to criminal history records.

(c) The secretary shall hold at least three public hearings in different locations around the state.

(d) The report shall include a thorough analysis of the issues examined by the secretary and detailed recommendations for further legislative or regulatory action.

Approved: May 24, 2000