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BILL AS INTRODUCED 2007-2008

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H.591

Introduced by   Representatives Grad of Moretown and Donaghy of Poultney

Referred to Committee on

Date:

Subject:  Public safety; Vermont criminal information center; criminal history records

Statement of purpose:  This bill proposes to:

(1)   implement the recommendations of the access to criminal history record information study committee;

(2)   provide criminal record update services (subscription services) to criminal justice agencies and vulnerable population employers;

(3)   ratify the national crime prevention and privacy compact; and

(4)   establish procedures for fingerprint-supported criminal record check searches.

AN ACT RELATING TO CRIMINAL HISTORY RECORDS

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


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

§ 2056b.  DISSEMINATION OF CRIMINAL HISTORY RECORDS TO

                 PERSONS CONDUCTING RESEARCH

(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.  Bulk criminal history data may only be provided in a format that excludes the subject’s name and any unique numbers that may reference the identity of the subject, except that the state identification number may be provided.  Researchers must sign a user agreement which specifies data security requirements and restrictions on use of identifying information.

(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 other than the subject and properly designated employees of an organization who have a documented need to know the contents of the record.

(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. 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, 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.

(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 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 criminal information center.

(b)(1)  An employer may obtain from the center a 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.  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 a criminal conviction record only:

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

(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)  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)(1)  Except as otherwise authorized by this chapter, no person shall confirm the existence or nonexistence of criminal conviction record information 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 subsection (f) of this section shall be 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 CRIMINAL INFORMATION CENTER FOR THE PURPOSES INTENDED BY LAW. THE REQUESTOR AGREES NOT TO DISCLOSE THE CONTENTS OF ANY CRIMINAL CONVICTION RECORD 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 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. § 2056f is amended 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. 4.  REPEAL

20 V.S.A. § 2056g (dissemination of criminal history records to licensed private investigators) is repealed.

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

§ 2056i.  DISSEMINATION OF CRIMINAL CONVICTION RECORDS TO

               THE PUBLIC

(a)  As used in this section:

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

(2)  “Criminal conviction record” means the record of convictions in a Vermont district court.

(b)  A person may obtain from the center a criminal conviction record for any purpose provided that the requestor has completed a user’s agreement with the center.  The user’s agreement shall require the requestor to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.

(c)  Criminal conviction records shall be disseminated to the public by the center under the following conditions:

(1)  Public access to criminal conviction records shall be provided by a secure Internet site or other alternatives approved by the center. 

(2)  A requestor who wishes to receive criminal conviction records from the center shall accept the terms of a user agreement with the center.  The user agreement shall specify the conditions under which record information is being released and specify guidelines for the proper interpretation and use of the information.

(3)  Prior to receiving criminal conviction records using the center’s Internet site a requestor shall establish a secure, online account with the center.  Issuance of the account is conditioned upon the requestor’s willingness to accept the terms of a user agreement with the center which specifies the conditions under which record information is being released and specifies guidelines for the proper interpretation and use of the information.

(4)  All queries shall be by name and date of birth of the subject.

(5)  Only no record responses and record responses which constitute an exact match to the query criteria shall be returned online.  In the event that query criteria suggest a possible match, center staff will determine whether the query criteria match a record in the repository and shall return the result to the requestor.

(6)  An electronic log shall be kept of all transactions that shall indicate the name of the requestor, the date of the request, the purpose of the request, and the result of the request.  This log shall not be available to the general public.  However, any person who believes that he or she has been the subject of a criminal record check may have access to the relevant portion of the log.

(7)  The center’s Internet site shall provide an electronic mechanism for users to notify the center of possible record errors.

(8)  The center’s Internet site shall provide links to center training information regarding best practices for the use of record checks as part of a complete background check process.

(9)  The center shall be authorized to charge a fee for each criminal record check query pursuant to statute.

(10)  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.

(11)  No person shall confirm the existence or nonexistence of criminal history record information to any person other than the subject and properly designated employees of an organization who have a documented need to know the contents of the record.

(12)  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.

(13)  The center shall provide notice of the penalty for unauthorized disclosure at the end of any report of a criminal conviction record.  The notice shall include, in boldface print, the following statements:

THE REQUESTOR AGREES TO USE CRIMINAL CONVICTION RECORD INFORMATION RECEIVED FROM THE VERMONT CRIMINAL INFORMATION CENTER FOR THE PURPOSES INTENDED BY LAW.  NO PERSON SHALL CONFIRM THE EXISTENCE OR NONEXISTENCE OF CRIMINAL HISTORY INFORMATION TO ANY PERSON OTHER THAN THE SUBJECT OF THE RECORD AND PROPERLY DESIGNATED EMPLOYEES OF AN ORGANIZATION WHO HAVE A DOCUMENTED NEED TO KNOW THE CONTENTS OF THE RECORD.  A VIOLATION MAY RESULT IN A CIVIL PENALTY OF UP TO $5,000.00.  EACH UNAUTHORIZED DISCLOSURE SHALL CONSTITUTE A SEPARATE CIVIL VIOLATION.

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

§ 2056j.  DISSEMINATION OF OUT-OF-STATE-CRIMINAL

               CONVICTION RECORDS TO QUALIFIED ENTITIES

(a)  As used in this section:

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

(2)  “Out-of-state criminal conviction record” means the record of convictions in jurisdictions other than Vermont.

(3)  “Qualified entity” means 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.

(b)  A qualified entity may request from the center an out-of-state criminal conviction record for any applicant, employee, or volunteer, provided that the qualified entity has filed a user’s agreement with the center.  Out-of-state criminal history record check requests shall include any fees charged by the state from which the record is requested.

Sec. 7.  20 V.S.A. § 2064 is added to read:

§ 2064.  SUBSCRIPTION SERVICE

(a)  As used in this section:

(1)  “State Identification Number (SID)” means a unique number generated by the center to identify a person in the criminal history database.

(2)  “Subscription service” means a service provided by the center whereby authorized requestors may be notified when an individual’s criminal record is updated.

(b)  The center shall provide criminal justice agencies and employers of vulnerable populations  access to a criminal history record subscription service.

(c)  A criminal justice agency may subscribe to an individual’s SID number only under the following conditions:

(1)  Access to the criminal history record subscription service by criminal justice agencies shall be for criminal justice purposes only.

(2)  The criminal justice agency will submit its request for a subscription or cancellation of a subscription to the center on an authorized form provided by the center.

(3)  The written request shall include the subscription subject’s name, date of birth, and at least one other identifier, and shall include the requestor’s name and associated case number.

(4)  During the subscription period, the center shall notify the criminal justice agency of any new criminal history information added to the subject’s criminal record.

(5)  The criminal justice agency can begin or cancel a subscription at any time.

(d)  An employer of a vulnerable populations may only subscribe to an individual’s SID number under the following conditions:

(1)  The individual has given written authorization on a release form provided by the center.

(2)  The individual is a current employee or volunteer of the employer.

(e)  The release form shall contain the individual’s name, signature, date of birth, and place of birth,  The release form shall state that the individual has the right to appeal the findings to the center, pursuant to rules adopted by the commissioner of public safety.  The release form shall inform the individual of the right to refuse to participate in the subscription service, and that he or she may terminate their participation in the subscription service at any time.

(f)  The center shall provide an employee of a vulnerable population with information regarding the subscription services offered by the center prior to being authorized to participate in the subscription service.  The materials shall address the following topics:

(1)  Requirements of subscription, renewal, and cancellation with the service.

(2)  How to interpret the criminal conviction records.

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

(4)  Misuse of the subscription service.

(g)  Vulnerable-population employers shall certify on their subscription request that they have read and understood materials prior to receiving authorization to request a subscription from the center.

(h)  During the subscription period, the center shall notify the

vulnerable-population employer in writing if new criminal conviction information is added to an individual’s criminal history record.

(i)  A vulnerable-population employer that receives a criminal conviction record pursuant to this section shall provide a free copy of such record to the subject of the record within ten days of receipt of the record.

(j)  No person shall confirm the existence or nonexistence of criminal conviction record information or disclose the contents of a criminal conviction record without the individual’s permission to any person other than the individual and properly designated employees of the vulnerable-population employer who have a documented need to know the contents of the record. 

(k)  The employer shall confidentially retain all criminal conviction information received pursuant to this section for a period of three years.  At the end of the retention period, the criminal conviction information must be shredded.

(l)  The employer shall make all records relating to criminal conviction information received pursuant to this section available to the center for audit at least once every two years.

(m)  A person who violates any subsection of this section shall be 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.

Sec. 8.  20 V.S.A. § 2065 is added to read:

§ 2065.  RATIFICATION OF THE NATIONAL CRIME PREVENTION

               AND PRIVACY COMPACT

(a)  The general assembly hereby approves and ratifies the National Crime Prevention and Privacy Compact, 42 U.S.C. sections 14611-14616.   The compact shall remain in effect until legislation is enacted renouncing or rescinding the compact.

(b)  The commissioner of the department of public safety shall execute, administer, and implement the compact on behalf of the state and may adopt rules as necessary for the national exchange of criminal history records for noncriminal justice purposes.

(c)  Criminal history records as defined in subdivision 2056a(a)(1) of this title shall be made available to lawfully entitled requestors in other states according to the provisions of the National Crime Prevention and Privacy Compact.

(d)  Nothing in this section shall alter the duties and responsibilities of the commissioner of the department of public safety regarding the dissemination of criminal history records within the state of Vermont pursuant to statute.

Sec. 9.  20 V.S.A. § 2066 is added to read:

§ 2066.   FINGERPRINT-SUPPORTED CRIMINAL RECORD SEARCHES

(a)  Fingerprint images submitted to the center pursuant to both criminal justice and noncriminal justice purposes shall be subject to the following types of searches:

(1)  ten-print searches in which the subject’s fingerprints are searched against the ten-print automated fingerprint identification system of the center and, where authorized, of the Federal Bureau of Investigation (FBI) to determine if the applicant has been previously arrested or convicted.

(2)  reverse searches in which the subject’s fingerprints are searched against previously submitted latent fingerprint evidence as maintained by the center and, as authorized, by the FBI.

(3)  forward searches in which the subject’s fingerprints are retained in the automated fingerprint identification systems of the center and, where authorized, of the FBI for ongoing comparison to future latent fingerprint evidence.

(b)  In cases in which a release form signed by the subject of the search is required pursuant to statute, the release form shall clearly notify the subject that fingerprints taken pursuant to the criminal record check will be retained in the center’s and, where authorized, the FBI’s automated fingerprint identification system database for the purposes outlined under subsection (a) of this section.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us