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NO. 169.  AN ACT RELATING TO EXPANDING EMPLOYER ACCESS TO APPLICANTS’ CRIMINAL HISTORY RECORDS.

(S.262)

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

Sec. 1.  20 V.S.A. § 2056b(a) is amended to read:

(a)  The Vermont criminal information center may provide Vermont criminal history records as defined in section 2056a of this title 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.

Sec. 2.  20 V.S.A. § 2056c is amended 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, or admission to a course of instruction offered by the Vermont criminal justice training council.

(2)  “Criminal conviction 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 or an authorized agent.  Authorized agent shall include a person who is licensed under chapter 59 of Title 26 to provide private investigative services.

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

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

(b)(1)  An employer may obtain from the center a Vermont criminal conviction 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 conviction records and the protection of individual privacy.  The user’s agreement shall be signed and kept current by the employer.

(2)  An individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c may obtain from the center an out-of-state criminal conviction 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 and complies with all other provisions of this section.

(c)(1)  The employer may obtain the a criminal conviction record only:

(A)  after the applicant has been given an offer of employment conditioned on the record check or;

(B)  after a volunteer has been offered a position conditioned on the record check.

(2)  The Vermont criminal justice training council may obtain a criminal conviction record only after an applicant has been accepted into a course of instruction offered by the Vermont criminal justice training council conditioned on the record check.

(3)  An organization that receives a criminal conviction record pursuant to this section shall provide a free copy of such record to the record subject within ten days of receipt of the record.

(4)  An organization entitled to receive a criminal conviction record pursuant to this section shall not require an applicant to obtain or submit personally a copy of his or her criminal conviction record for purposes of employment or acceptance into a course offered by the Vermont criminal justice training council.

(d)(1)  Postsecondary school employers may obtain criminal records only for applicants who apply for employment or volunteer positions that provide access to student residential facilities.  Employers shall be provided with informational material by the center prior to authorization to request criminal conviction records.  The materials shall address the following topics:

(A)  Requirements of the user agreement.

(B)  How to obtain criminal conviction records from the center.

(C)  How to interpret criminal conviction records.

(D)  How to obtain source documents summarized in the criminal conviction records.

(E)  Misuse of criminal conviction records.

(2)  Employers shall certify on the user agreement that they have read and understood the materials prior to receiving authorization to request records from the center.

(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 (1)  Except as otherwise authorized by this chapter, no person shall confirm the existence or nonexistence of criminal conviction record information to any person who would not be eligible to receive the information pursuant to this subchapter or disclose the contents of a criminal conviction record without the record subject’s permission to any person other than the applicant and properly designated employees of the employer who have a documented need to know the contents of the record.

(2)  An employer who receives criminal conviction records pursuant to this section shall maintain a confidential log of all record requests as specified by the center.  The employer shall confidentially retain records relating to requests for criminal conviction records for a period of three years.  At the end of the retention period, if logs and records are to be destroyed, they shall be shredded.

(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 subsection (f) of this section shall be fined assessed a civil penalty of not more than $5,000.00.  Each unauthorized disclosure shall constitute a separate civil violation.  The office of the attorney general shall have authority to enforce this section.

(h)  The center shall provide notice of the penalty for unauthorized disclosure on a form accompanying any report of a criminal conviction record to an employer.  The notice shall include, in boldface print, the following statements:  THE REQUESTOR AGREES TO USE CRIMINAL CONVICTION RECORD INFORMATION RECEIVED FROM THE VERMONT CRIME CRIMINAL INFORMATION CENTER FOR THE PURPOSES INTENDED BY LAW.  THE REQUESTOR AGREES NOT TO DISCLOSE THE CONTENTS OF ANY CRIMINAL CONVICTION 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 CIVIL PENALTY 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 conviction record check on every job applicant hired by the employer.  An employer’s failure to obtain a criminal conviction 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. 3.  20 V.S.A. § 2056d(a) is amended to read:

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

Sec. 4.  20 V.S.A. § 2056f is added to read:

§ 2056f.  DISSEMINATION OF CRIMINAL HISTORY RECORDS AND

               CRIMINAL CONVICTIONS RECORDS TO AN INDIVIDUAL

A person may obtain a copy of his or her own criminal history record as defined in section 2056a of this title or criminal conviction record as defined in section 2056c of this title or a statement that no record exists from the Vermont criminal information center.  Copies of a person’s criminal history record and criminal conviction record may be obtained by making a personal appearance at the center during regular business hours or by written request.  Written requests shall be on a form specified by the center and shall contain the person’s name, date of birth, place of birth, and signature as attested to by a notary public.  A raised seal must be affixed to the form.

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

§ 2056g.  DISSEMINATION OF CRIMINAL HISTORY RECORDS TO

                LICENSED PRIVATE INVESTIGATORS

(a)  As used in this section:

(1)  “Applicant” means an individual seeking or being sought for employment or a volunteer position with a licensed private investigator or with a client who has hired the licensed private investigator.

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

(3)  “Client” means:

(A)  A criminal justice agency as defined in section 2056a of this title which hires a licensed private investigator to provide investigative services for criminal justice purposes as defined in section 2056a.

(B)  An attorney licensed to practice in Vermont who hires a licensed private investigator to provide investigative services to the attorney in a criminal matter in which the attorney is an attorney of record.

(C)  An insurer licensed in accordance with Title 8 who hires a licensed private investigator to provide investigative services to the insurer in a fraud investigation.

(4)  “Criminal conviction record” means the record of convictions in Vermont.

(5)  “Private investigator” means a person licensed under chapter 59 of Title 26 to provide private investigative services.

(b)  Except as provided in section 2056c of this title, a private investigator may obtain from the center a criminal conviction record for any person, provided that the following conditions have been met:

(1)  The private investigator and the private investigator’s client have each filed a user’s agreement with the center.  The user’s agreement shall require the private investigator and the client to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  The user’s agreement shall be signed and kept current by the private investigator and the client.

(2)  The private investigator shall complete a criminal conviction record request form specified by the center and signed by both the private investigator and the client.  The criminal record request form shall:

(A)  Specify the subject of the request and any identification required by the center.

(B)  Advise that the criminal conviction record information released by the center is subject to the conditions specified in the user agreement.

(C)  Advise that the criminal conviction record information released by the center is subject to the conditions specified in the negative action notification requirements in subsection (d) of this section, and that the center has the authority to audit recipients of criminal conviction records to enforce this requirement.

(3)  The private investigator shall complete a criminal conviction record training program conducted by the center prior to authorization to obtain criminal conviction records from the center.  The training program shall address the following topics:

(A)  Requirements of the user agreement.

(B)  How to obtain criminal conviction records from the center.

(C)  How to interpret criminal conviction records.

(D)  How to obtain source documents summarized in the criminal conviction records.

(E)  Misuse of criminal conviction records.

(F)  The negative action notification policy.

(c)  When a private investigator provides a client with a copy of a subject’s criminal conviction record, the private investigator shall provide the client with a copy of the signed criminal record request form which specifies the client’s obligations to the subject of the record in the event that the client takes a negative action against the subject based on the results of the record check.

(d)(1)  In the event that a negative action is taken against the subject of the record by the client as a result of the record check, the client shall provide the subject of the record with the following:

(A)  A written notification of negative action sent via certified mail to the subject of the record within five business days of the date that the client determined that negative action would be taken against the subject of the record.

(B)  A copy of the criminal conviction record on which the negative action was based.

(C)  A notice that the subject has the right to appeal to the center any errors that might appear on the record. 

(2)  Negative action shall mean any action which results in any adverse consequence to the subject of the record.

(3)  The negative action notification process specified in this subsection shall be subject to audit by the center.

(e)  A licensed private investigator or client who seeks to obtain from the center a criminal conviction record on an applicant must do so pursuant to section 2056c of this title.

(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 shall be assessed a civil penalty of not more than $5,000.00.  Each unauthorized disclosure or failure to comply with notification regarding a negative action shall constitute a separate civil violation.

Sec. 6.  20 V.S.A. § 2063 is amended 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 check for a criminal history check record as defined in section 2056a of this title or a criminal conviction record as defined in section 2056c of this title 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 any individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c.

(2)  Requests made by researchers approved by the Vermont criminal information center to conduct research related to the administration of criminal justice.  A fee, however, may be charged by the center which shall reflect the cost of generating the requested information.

(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 of chapter 7 of Title 32.  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. 7.  DATA COLLECTION

The Vermont criminal information center shall report to the house and senate committees on judiciary on or before January 15, 2007 on the following:

(1)  All individuals, organizations, or governmental bodies entitled to obtain criminal record information from the center and the legal authority for such access.

(2)  The record information that is released to those identified by subdivision (1) of this section.

(3)  The number of record requests by a group of requestors.

(4)  The number of record requests without release forms.

(5)  An assessment of the cost of the criminal record check program compared to the revenues generated from record requests.

(6)  Any additional data that will assist the committees in engaging in a comprehensive review of access to statewide criminal record information.

Sec. 8.  REPORT

(a)  There is established an access to criminal history record information committee for the purpose of making findings and recommendations regarding public access to statewide criminal history records from the Vermont crime information center and the dissemination of electronic criminal case record information by the court.  The committee shall consider what information should be released, by what method and to whom, in a manner that is consistent, reliable, and sensitive to privacy issues.  The report shall address increased access to criminal history records by licensed private investigators and access to criminal history records by professional organizations for the purpose of licensing and certification.

(b)  The committee shall consist of the following members:

(1)  A judge or justice appointed by the chief justice of the Vermont supreme court.

(2)  The director of the Vermont crime information center.

(3)  The executive director of the Vermont bar association or his or her designee.

(4)  The executive director of the Vermont Chapter of the American Civil Liberties Union.

(5)  Two former legislators appointed jointly by the speaker of the house and the senate committee on committees.

(c)  The judge or justice shall be the chair of the committee.

(d)  The Vermont crime information center and the judiciary shall provide the committee with information and assistance necessary to accomplish its charge.

(e)  Former legislative members of the committee shall be entitled to per diem compensation and reimbursement for expenses in the same manner as current legislative members in accordance with 2 V.S.A. § 406.

(f)  The committee shall report its findings and recommendations to the house and senate committees on judiciary on or before January 15, 2007.

Sec. 9.  DISSEMINATION OF ELECTRONIC CASE RECORDS

The judiciary shall not permit public access via the internet to criminal case records or family court case records prior to June 1, 2007.  The court may permit criminal justice agencies, as defined in 20 V.S.A. § 2056a, internet access to criminal case records for criminal justice purposes, as defined in section 2056a. 

Approved:  May 22, 2006



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us