Session Law

Identifying Information:L. 2001 ch. 097
Other Identifying Information:2001 Senate Bill 209
Tax Type:Other
Brief Description:An Act concerning crimes, criminal procedure and punishment; enacting thenational crime prevention and privacy compact.
Keywords:


Body:

CHAPTER 97

SENATE BILL No. 209


An Act concerning crimes, criminal procedure and punishment; enacting the

national crime prevention and privacy compact.

Be it enacted by the Legislature of the State of Kansas:

Section 1. The National Crime Prevention and Privacy Compact is

hereby ratified, enacted into law and entered into with all jurisdictions

legally joining in the Compact, in substantially the form set forth in this

section.

Article I. Definitions

As used in this Compact, the following definitions apply:

(1) ``Attorney General'' means the Attorney General of the United

States.

(2) ``Compact officer'' means:

(a) With respect to the Federal Government, an official so designated

by the Director of the FBI; and

(b) With respect to a party state, the chief administrator of the state's

criminal history record repository or a designee of the chief administrator

who is a regular full-time employee of the repository.

(3) ``Council'' means the Compact Council established under Article

VI.

(4) ``Criminal history record repository'' means the state agency des-

ignated by the governor or other appropriate executive official or the

legislature of a state to perform centralized recordkeeping functions for

criminal history records and services in the state.

(5) (a) ``Criminal history records'' means information collected by

criminal justice agencies on individuals consisting of identifiable descrip-

tions and notations of arrests, detentions, indictments, or other formal

criminal charges and any disposition arising therefrom, including acquit-

tal, sentencing, correctional supervision, or release.

(b) The term does not include identification information such as fin-

gerprint records if the information does not indicate involvement of the

individual with the criminal justice system.

(6) ``Criminal justice'' includes activities relating to the detection, ap-

prehension, detention, pretrial release, post trial release, prosecution, ad-

judication, correctional supervision, or rehabilitation of accused persons

or criminal offenders. The administration of criminal justice includes

criminal identification activities and the collection, storage, and dissemi-

nation of criminal history records.

(7) (a) ``Criminal justice agency'' means:

(i) Courts; and

(ii) A governmental agency or any subunit of an agency that performs

the administration of criminal justice pursuant to a statute or executive

order and allocates a substantial part of its annual budget to the admin-

istration of criminal justice.

(b) The term includes federal and state inspector general offices.

(8) ``Criminal justice services'' means services provided by the FBI

to criminal justice agencies in response to a request for information about

a particular individual or as an update to information previously provided

for criminal justice purposes.

(9) ``Direct access'' means access to the national identification index

by computer terminal or other automated means not requiring the assis-

tance of or intervention by any other party or agency.

(10) ``Executive order'' means an order of the President of the United

States or the chief executive officer of a state that has the force of law

and that is promulgated in accordance with applicable law.

(11) ``FBI'' means the Federal Bureau of Investigation.

(12) (a) ``III System'' means the Interstate Identification Index Sys-

tem, which is the cooperative federal-state system for the exchange of

criminal history records.

(b) The term includes the national identification index, the national

fingerprint file, and to the extent of their participation in the system, the

criminal history record repositories of the states and the FBI.

(13) ``National fingerprint file'' means a database of fingerprints or of

other uniquely personal identifying information that relates to an arrested

or charged individual and that is maintained by the FBI to provide pos-

itive identification of record subjects indexed in the III System.

(14) ``National identification index'' means an index maintained by

the FBI consisting of names, identifying numbers, and other descriptive

information relating to record subjects about whom there are criminal

history records in the III System.

(15) ``National indices'' means the national identification index and

the national fingerprint file.

(16) ``Noncriminal justice purposes'' means uses of criminal history

records for purposes authorized by federal or state law other than pur-

poses relating to criminal justice activities, including employment suita-

bility, licensing determinations, immigration and naturalization matters,

and national security clearances.

(17) ``Nonparty state'' means a state that has not ratified this Com-

pact.

(18) ``Party state'' means a state that has ratified this Compact.

(19) ``Positive identification'' means a determination, based upon a

comparison of fingerprints or other equally reliable biometric identifica-

tion techniques, that the subject of a record search is the same person as

the subject of a criminal history record or records indexed in the III

System. Identifications based solely upon a comparison of subjects' names

or other nonunique identification characteristics or numbers, or combi-

nations thereof, does not constitute positive identification.

(20) ``Sealed record information'' means:

(a) With respect to adults, that portion of a record that is:

(i) Not available for criminal justice uses;

(ii) Not supported by fingerprints or other accepted means of positive

identification; or

(iii) Subject to restrictions on dissemination for noncriminal justice

purposes pursuant to a court order related to a particular subject or pur-

suant to a federal or state statute that requires action on a sealing petition

filed by a particular record subject; and

(b) With respect to juveniles, whatever each state determines is a

sealed record under its own law and procedure.

(21) ``State'' means any state, territory, or possession of the United

States, the District of Columbia, and the Commonwealth of Puerto Rico.

Article II. Purposes

The purposes of this Compact are to:

(1) Provide a legal framework for the establishment of a cooperative

federal-state system for the interstate and federal-state exchange of crim-

inal history records for noncriminal justice uses;

(2) Require the FBI to permit use of the national identification index

and the national fingerprint file by each party state and to provide, in a

timely fashion, federal and state criminal history records to requesting

states, in accordance with the terms of this Compact and with rules, pro-

cedures, and standards established by the Council under Article VI;

(3) Require party states to provide information and records for the

national identification index and the national fingerprint file and to pro-

vide criminal history records, in a timely fashion, to criminal history rec-

ord repositories of other states and the Federal Government for noncri-

minal justice purposes, in accordance with the terms of this Compact and

with rules, procedures, and standards established by the Council under

Article VI;

(4) Provide for the establishment of a Council to monitor III System

operations and to prescribe system rules and procedures for the effective

and proper operation of the III System for noncriminal justice purposes;

and

(5) Require the FBI and each party state to adhere to III System

standards concerning record dissemination and use, response times, sys-

tem security, data quality, and other duly established standards, including

those that enhance the accuracy and privacy of such records.

Article III. Responsibilities of Compact Parties

(1) The Director of the FBI shall:

(a) Appoint an FBI Compact officer who shall:

(i) Administer this Compact within the Department of Justice and

among federal agencies and other agencies and organizations that submit

search requests to the FBI pursuant to Article V(3);

(ii) Ensure that Compact provisions and rules, procedures, and stan-

dards prescribed by the Council under Article VI are complied with by

the Department of Justice and the federal agencies and other agencies

and organizations referred to in subsection (1)(a)(i) of this Article III; and

(iii) Regulate the use of records received by means of the III System

from party states when such records are supplied by the FBI directly to

other federal agencies;

(b) Provide to federal agencies and to state criminal history record

repositories criminal history records maintained in its database for the

noncriminal justice purposes described in Article IV, including:

(i) Information from nonparty states; and

(ii) Information from party states that is available from the FBI

through the III System, but is not available from the party state through

the III System;

(c) Provide a telecommunications network and maintain centralized

facilities for the exchange of criminal history records for both criminal

justice purposes and the noncriminal justice purposes described in Article

IV and ensure that the exchange of the records for criminal justice pur-

poses has priority over exchange for noncriminal justice purposes; and

(d) Modify or enter into user agreements with nonparty state criminal

history record repositories to require them to establish record request

procedures conforming to those prescribed in Article V.

(2) Each party state shall:

(a) Appoint a Compact officer who shall:

(i) Administer this Compact within that state;

(ii) Ensure that Compact provisions and rules, procedures, and stan-

dards established by the Council under Article VI are complied with in

the state; and

(iii) Regulate the in-state use of records received by means of the III

System from the FBI or from other party states;

(b) Establish and maintain a criminal history record repository, which

shall provide:

(i) Information and records for the national identification index and

the national fingerprint file; and

(ii) The state's III System-indexed criminal history records for non-

criminal justice purposes described in Article IV;

(c) Participate in the national fingerprint file; and

(d) Provide and maintain telecommunications links and related

equipment necessary to support the criminal justice services set forth in

this Compact.

(3) In carrying out their responsibilities under this Compact, the FBI

and each party state shall comply with III System rules, procedures, and

standards duly established by the Council concerning record dissemina-

tion and use, response times, data quality, system security, accuracy, pri-

vacy protection, and other aspects of III System operation.

(4) (a) Use of the III System for noncriminal justice purposes au-

thorized in this Compact must be managed so as not to diminish the level

of services provided in support of criminal justice purposes.

(b) Administration of Compact provisions may not reduce the level

of service available to authorized noncriminal justice users on the effective

date of this Compact.

Article IV. Authorized Record Disclosures

(1) To the extent authorized by section 552a of Title 5, United States

Code (commonly known as the Privacy Act of 1974), the FBI shall provide

on request criminal history records, excluding sealed record information,

to state criminal history record repositories for noncriminal justice pur-

poses allowed by federal statute, federal executive order, or a state statute

which has been approved by the Attorney General and which authorizes

national indices checks.

(2) The FBI, to the extent authorized by section 552a of Title 5,

United States Code (commonly known as the Privacy Act of 1974), and

state criminal history record repositories shall provide criminal history

records, excluding sealed record information, to criminal justice agencies

and other governmental or nongovernmental agencies for noncriminal

justice purposes allowed by federal statute, federal executive order, or a

state statute that has been approved by the Attorney General, that ex-

plicitly authorizes national indices checks.

(3) Any record obtained under this Compact may be used only for

the official purposes for which the record was requested. Each Compact

officer shall establish procedures, consistent with this Compact and with

rules, procedures, and standards established by the Council under Article

VI, which procedures shall protect the accuracy and privacy of the records

and shall:

(a) Ensure that records obtained under this Compact are used only

by authorized officials for authorized purposes;

(b) Require that subsequent record checks are requested to obtain

current information whenever a new need arises; and

(c) Ensure that record entries that may not legally be used for a par-

ticular noncriminal justice purpose are deleted from the response and, if

no information authorized for release remains, an appropriate ``no record''

response is communicated to the requesting official.

Article V. Record Request Procedures

(1) Subject fingerprints or other approved forms of positive identifi-

cation must be submitted with all requests for criminal history record

checks for noncriminal justice purposes.

(2) Each request for a criminal history record check utilizing the na-

tional indices made under any approved state statute must be submitted

through that state's criminal history record repository. A state criminal

history record repository shall process an interstate request for noncri-

minal justice purposes through the national indices only if the request is

transmitted through another state criminal history record repository or

the FBI.

(3) Each request for criminal history record checks utilizing the na-

tional indices made under federal authority must be submitted through

the FBI or, if the state criminal history record repository consents to

process fingerprint submissions, through the criminal history record re-

pository in the state in which the request originated. Direct access to the

national identification index by entities other than the FBI and state crim-

inal history records repositories may not be permitted for noncriminal

justice purposes.

(4) A state criminal history record repository or the FBI:

(a) May charge a fee, in accordance with applicable law, for handling

a request involving fingerprint processing for noncriminal justice pur-

poses; and

(b) May not charge a fee for providing criminal history records in

response to an electronic request for a record that does not involve a

request to process fingerprints.

(5) (a) If a state criminal history record repository cannot positively

identify the subject of a record request made for noncriminal justice pur-

poses, the request, together with fingerprints or other approved identi-

fying information, must be forwarded to the FBI for a search of the

national indices.

(b) If, with respect to a request forwarded by a state criminal history

record repository under subsection (5)(a), the FBI positively identifies

the subject as having a III System-indexed record or records:

(i) The FBI shall so advise the state criminal history record repository;

and

(ii) The state criminal history record repository is entitled to obtain

the additional criminal history record information from the FBI or other

state criminal history record repositories.

Article VI. Establishment of Compact Council

(1) (a) There is established a Council to be known as the Compact

Council, which has the authority to promulgate rules and procedures

governing the use of the III System for noncriminal justice purposes, not

to conflict with FBI administration of the III System for criminal justice

purposes.

(b) The Council shall:

(i) Continue in existence as long as this Compact remains in effect;

(ii) Be located, for administrative purposes, within the FBI; and

(iii) Be organized and hold its first meeting as soon as practicable

after the effective date of this Compact.

(2) The Council must be composed of 15 members, each of whom

must be appointed by the Attorney General, as follows:

(a) Nine members, each of whom shall serve a 2-year term, who must

be selected from among the Compact officers of party states based on

the recommendation of the Compact officers of all party states, except

that in the absence of the requisite number of Compact officers available

to serve, the chief administrators of the criminal history record reposi-

tories of nonparty states must be eligible to serve on an interim basis;

(b) Two at-large members, nominated by the Director of the FBI,

each of whom shall serve a 3-year term, of whom:

(i) One must be a representative of the criminal justice agencies of

the Federal Government and may not be an employee of the FBI; and

(ii) One must be a representative of the noncriminal justice agencies

of the Federal Government;

(c) Two at-large members, nominated by the Chairman of the Coun-

cil once the Chairman is elected pursuant to subsection (3) of this Article

VI, each of whom shall serve a 3-year term, of whom:

(i) One must be a representative of state or local criminal justice

agencies; and

(ii) One must be a representative of state or local noncriminal justice

agencies;

(d) One member who shall serve a 3-year term and who shall simul-

taneously be a member of the FBI's advisory policy board on criminal

justice information services, nominated by the membership of that policy

board; and

(e) One member, nominated by the Director of the FBI, who shall

serve a 3-year term and who must be an employee of the FBI.

(3) (a) From its membership, the Council shall elect a Chairman and

a Vice Chairman of the Council. Both the Chairman and Vice Chairman

of the Council:

(i) Must be a Compact officer, unless there is no Compact officer on

the Council who is willing to serve, in which case the Chairman may be

an at-large member; and

(ii) Shall serve 2-year terms and may be reelected to only one addi-

tional 2-year term.

(b) The Vice Chairman of the Council shall serve as the Chairman of

the Council in the absence of the Chairman.

(4) (a) The Council shall meet at least once each year at the call of

the Chairman. Each meeting of the Council must be open to the public.

The Council shall provide prior public notice in the Federal Register of

each meeting of the Council, including the matters to be addressed at

the meeting.

(b) A majority of the Council or any committee of the Council shall

constitute a quorum of the Council or of a committee, respectively, for

the conduct of business. A lesser number may meet to hold hearings, take

testimony, or conduct any business not requiring a vote.

(5) The Council shall make available for public inspection and cop-

ying at the Council office within the FBI and shall publish in the Federal

Register any rules, procedures, or standards established by the Council.

(6) The Council may request from the FBI reports, studies, statistics,

or other information or materials that the Council determines to be nec-

essary to enable the Council to perform its duties under this Compact.

The FBI, to the extent authorized by law, may provide assistance or in-

formation upon a request.

(7) The Chairman may establish committees as necessary to carry out

this Compact and may prescribe their membership, responsibilities, and

duration.

Article VII. Ratification of Compact

This Compact takes effect upon being entered into by two or more

states as between those states and the Federal Government. When ad-

ditional states subsequently enter into this Compact, it becomes effective

among those states and the Federal Government and each party state that

has previously ratified it. When ratified, this Compact has the full force

and effect of law within the ratifying jurisdictions. The form of ratification

must be in accordance with the laws of the executing state.

Article VIII. Miscellaneous Provisions

(1) Administration of this Compact may not interfere with the man-

agement and control of the Director of the FBI over the FBI's collection

and dissemination of criminal history records and the advisory function

of the FBI's advisory policy board chartered under the Federal Advisory

Committee Act (5 U.S.C. App.) for all purposes other than noncriminal

justice.

(2) Nothing in this Compact requires the FBI to obligate or expend

funds beyond those appropriated to the FBI.

(3) Nothing in this Compact diminishes or lessens the obligations,

responsibilities, and authorities of any state, whether a party state or a

nonparty state, or of any criminal history record repository or other sub-

division or component thereof, under the Departments of State, Justice,

and Commerce, the Judiciary, and Related Agencies Appropriation Act,

1973 (Public Law 92-544), or regulations and guidelines promulgated

thereunder, including the rules and procedures promulgated by the

Council under Article VI(1), regarding the use and dissemination of crim-

inal history records and information.

Article IX. Renunciation

(1) This Compact shall bind each party state until renounced by the

party state.

(2) Any renunciation of this Compact by a party state must:

(a) Be effected in the same manner by which the party state ratified

this Compact; and

(b) Become effective 180 days after written notice of renunciation is

provided by the party state to each other party state and to the Federal

Government.

Article X. Severability

The provisions of this Compact are severable. If any phrase, clause,

sentence, or provision of this Compact is declared to be contrary to the

constitution of any participating state or to the Constitution of the United

States or if the applicability of any phrase, clause, sentence, or provision

of this Compact to any government, agency, person, or circumstance is

held invalid, the validity of the remainder of this Compact and the ap-

plicability of the remainder of the Compact to any government, agency,

person, or circumstance is not affected by the severability. If a portion of

this Compact is held contrary to the constitution of any party state, all

other portions of this Compact remain in full force and effect as to the

remaining party states and in full force and effect as to the party state

affected, as to all other provisions.

Article XI. Adjudication of Disputes

(1) The Council:

(a) Has initial authority to make determinations with respect to any

dispute regarding:

(i) Interpretation of this Compact;

(ii) Any rule or standard established by the Council pursuant to Ar-

ticle VI; and

(iii) Any dispute or controversy between any parties to this Compact;

and

(b) Shall hold a hearing concerning any dispute described in subsec-

tion (1)(a) at a regularly scheduled meeting of the Council and only render

a decision based upon a majority vote of the members of the Council.

The decision must be published pursuant to the requirements of Article

VI(5).

(2) The FBI shall exercise immediate and necessary action to pre-

serve the integrity of the III System, to maintain system policy and stan-

dards, to protect the accuracy and privacy of records, and to prevent

abuses until the Council holds a hearing on the matters.

(3) The FBI or a party state may appeal any decision of the Council

to the Attorney General and after that appeal may file suit in the appro-

priate District Court of the United States that has original jurisdiction of

all cases or controversies arising under this Compact. Any suit arising

under this Compact and initiated in a state court must be removed to the

appropriate District Court of the United States in the manner provided

by section 1446 of Title 28, United States Code, or other statutory au-

thority.

Sec. 2. This act shall take effect and be in force from and after its

publication in the Kansas register.

Approved April 10, 2000.

Published in the Kansas Register April 19, 2000.


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Date Composed: 09/25/2001 Date Modified: 09/25/2001