Access to Criminal History Record Information for Non-criminal Justice Purposes

Access to Criminal History Record Information for Non-criminal Justice Purposes

April 22, 2024
Access to Criminal History Record Information for Non-
criminal Justice Purposes
In the interest of allowing states to screen people who might
• 34 U.S.C. §41106 authorizes criminal history records
work in professions where they would be responsible for
checks for individuals seeking employment as private
caring for vulnerable people or where public safety
security officers.
concerns are implicated, Congress has passed legislation to
allow the Federal Bureau of Investigation (FBI) to facilitate
Other statutes require federal agencies to conduct
the exchange of criminal history record information (CHRI)
background checks for certain positions:
between states for authorized non-criminal justice purposes.
CHRI includes descriptions of arrests or other formal
• 34 U.S.C. §20351 requires facilities operated by or
criminal charges and any dispositions of the charges, such
under contract with the federal government that provide
as dismissal, acquittal, conviction, sentencing, correctional
child care to conduct a criminal history background
supervision, release, and expungement or sealing orders.
check for employees and contractors.
This In Focus is a primer on how CHRI is exchanged for
non-criminal justice purposes.
• 49 U.S.C. §44936 requires the Transportation Security
Administration (TSA) to conduct background checks on
Laws Granting Access to CHRI
individuals in the aviation industry who are involved in
Under 28 U.S.C. §534(a), the Attorney General (AG) is
security or who have access to aircrafts.
authorized to “acquire, collect, classify, and preserve
identification, criminal identification, crime, and other
Exchanging CHRI
records” and to “exchange such records and information
Most CHRI is maintained by states in their own
with, and for the official use of, authorized officials of the
repositories, but the FBI facilitates the exchange of this
Federal Government, including the United States
information through its Interstate Identification Index (III,
Sentencing Commission, the States, including State
or Triple-I). III allows states to exchange CHRI by
sentencing commissions, Indian tribes, cities, and penal and
maintaining an index of identifying information (e.g.,
other institutions.”
names, birth dates, fingerprints) of individuals with CHRI
accessible through III. If a query of III indicates that an
A provision in the 1973 appropriations for the U.S.
individual has a criminal history record, the requesting state
Department of Justice (DOJ) granted the FBI the authority
will be pointed to the relevant state(s), and/or the FBI,
to exchange CHRI with state, local, and tribal governments
which maintains CHRI for people convicted of federal
for licensing or employment purposes if access is granted
offenses, so it can obtain the records for the individual.
by state law and it is approved by the AG (P.L. 92-544,
codified at 34 U.S.C. §41101). P.L. 92-544 is the primary
III was initially established to allow CHRI to be exchanged
vehicle facilitating state access to CHRI.
for criminal justice purposes, but over the years there was
growing interest in allowing access to III for non-criminal
Other federal laws allow states to access CHRI without an
justice purposes. While all states currently allow CHRI to
enabling state statute. Examples include the following:
be exchanged with other states for criminal justice
purposes, state laws vary regarding dissemination of CHRI
• 34 U.S.C. §20962 authorizes criminal history records
for non-criminal justice purposes. Congress passed the
checks for individuals employed, or under consideration
National Crime Prevention and Privacy Compact (P.L. 105-
for employment, by a private or public school or an
251, compact) to establish a legal framework for interstate
educational agency who would work with or around
exchange of CHRI for non-criminal justice purposes. States
children.
that ratify the compact agree to provide all unsealed CHRI
for any authorized non-criminal justice purpose.
• 34 U.S.C. §40102 authorizes criminal history records
checks for applicants who would provide care to the
As of October 2023, 24 states and the District of Columbia
elderly or individuals with disabilities, or who are
solely participate in III (III states). III states provide
responsible for the safety and well-being of children.
duplicate CHRI to the FBI so that in instances when a state
has CHRI on the subject of a search but cannot release the
• 34 U.S.C. §41105 authorizes criminal history records
information due to its laws, the FBI responds with the
checks for applicants who would provide direct care to
CHRI in its possession. (When states submit CHRI to the
individuals in nursing facilities or through a home health
FBI, it becomes a federal record and the records are
care agency.
disseminated based on federal laws and regulations
regarding criminal history records checks.) The FBI
provides all CHRI, other than arrests without a disposition
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Access to Criminal History Record Information for Non-criminal Justice Purposes
that are more than a year old, to states conducting an
Barriers to Further Access to CHRI
authorized background check. States submit information on
SEARCH, a non-profit organization that supports criminal
criterion offenses, which the FBI defines as all felonies and
justice information sharing, outlined several reasons why
misdemeanors, except designated nonserious ones. Because
states have not adopted the compact or do not participate in
reporting to the FBI is voluntary, CHRI from the FBI’s
the NFF.
records might not be as complete as a comparable state
record. While states report arrests with regularity, a past
Given that state legislatures might only meet a few months
analysis by DOJ found that half of records maintained by
a year, it can be difficult for the state to ratify the compact
the FBI did not have final case disposition data, though
if it is not a legislative priority. Adopting the compact
more recent arrest records were more likely to be complete.
might not be point of focus if state legislators do not
understand the importance of the compact for facilitating
As of October 2023, 26 states participate in both III and the
the exchange of CHRI for non-criminal justice purposes or
National Fingerprint File (NFF). States must ratify the
if legislators are concerned about which non-criminal
compact in order to participate in the NFF (NFF states).
justice agencies have access to the state’s CHRI and for
NFF states do not submit duplicate CHRI records to the
what purposes.
FBI. In NFF states, when someone is arrested the state
sends the FBI fingerprints and identification information,
States might face costs to upgrade their criminal history
which are used to establish a pointer to the related CHRI
repositories technology in order to respond to all requests
maintained by the state. Subsequent case disposition
for CHRI. Technology upgrades might be necessary in
information or future arrests for additional crimes are
order for the state to furnish the proper information in
maintained by the state and that information is not
response to the request, such as providing all CHRI in
forwarded on to the FBI. NFF participation likely provides
response to a III request for national security purposes.
for the most complete CHRI because requesting states can
receive the full record from the state holding it instead of
Some states might not see the purpose of ratifying the
receiving only what was submitted voluntarily to the FBI.
compact because they are satisfied with the FBI furnishing
While accessing CHRI directly from the holding state might
the CHRI supplied by the state in instances where the state
provide a more complete record than a record maintained
is not authorized to respond to a particular III request.
by the FBI, the most recent survey of state criminal history
States might also not see the need to ratify the compact if
information systems found that 69% of arrests and 72% of
their state laws do not conflict with the compact (i.e., state
felony charges in state databases have final disposition data.
laws authorize the state repository to respond to all III
requests).
When a state non-criminal justice agency is authorized by
law to conduct a CHRI search, it starts by submitting an
There are also some states that have ratified the compact
individual’s fingerprints to the state repository. The
but do not participate in the NFF. In some cases, states
repository first runs the fingerprints against its records to
might face substantial costs with upgrading their fingerprint
determine if there is an in-state match. If there is, the record
identification systems in order to be compliant with NFF
also provides information indicating whether the individual
standards. In other cases, states might not be able to
has an out-of-state criminal record. In this case, III sends a
respond to all requests for CHRI maintained by the state
notification to any NFF state with CHRI on the individual,
because the fingerprints associated with the record pre-date
which then provides the complete record to the requesting
the creation of the state’s CHRI repository (i.e., the state
state. The FBI provides records it has for individuals with
does not have the fingerprints on file). There might also be
federal CHRI and for III states.
an issue with the quality of the fingerprints. Before
fingerprints were able to be captured digitally, they were
If a search of in-state records does not return a match, the
taken though an ink-and-roll process on physical fingerprint
state transmits the individual’s fingerprints to the FBI for a
cards and the quality of the fingerprints sent to the state
search of III. If the FBI’s search returns a match, the FBI
might have been lower than those sent to the FBI.
provides the requesting state with records for federal
offenses and any records it holds for III states. The FBI also
National Criminal History Improvement
notifies NFF states that hold CHRI on the individual to
Program (NCHIP)
provide their records to the requesting state.
The Bureau of Justice Statistics (BJS) awards grants to
state, territorial, and tribal governments under NCHIP to
States repositories screen the CHRI they receive under the
help states and localities improve the quality, timeliness,
circumstances described above to determine which
and immediate accessibility of CHRI and related
information can be disclosed under state law. The results,
information. Areas of focus under the program can vary
which are edited, if necessary, are provided to the non-
each fiscal year, but for FY2024 two areas of focus under
criminal justice agency that initiated the search.
NCHIP are updating and automating case outcomes from
courts and prosecutors in state and tribal criminal records
Federal non-criminal justice agencies that are authorized to
and supporting participation in the NFF and adoption of the
conduct a CHRI search submit fingerprints directly to the
compact.
FBI and they are processed in a manner similar to the way
state requests are processed when a state does not have a
Nathan James, Analyst in Crime Policy
record on an individual.
IF12643
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Access to Criminal History Record Information for Non-criminal Justice Purposes

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