SB-1413, As Passed Senate, November 13, 2008
June 24, 2008, Introduced by Senator CROPSEY and referred to the Committee on Judiciary.
A bill to allow the state of Michigan to enter into a compact
for organizing an electronic information sharing system among the
federal government and the states that will exchange criminal
history records for certain purposes.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. The governor of this state may enter into a compact as
described in this act on behalf of the state of Michigan with any
of the states of the United States who legally join in that
compact.
Sec. 2. This act shall be known and may be cited as the
"national crime prevention and privacy compact".
Sec. 3. The national crime prevention and privacy compact as
contained in this section is enacted into law and entered into on
behalf of the state of Michigan with any other states legally
joining in it in a form substantially as follows:
The contracting parties agree to the following:
OVERVIEW
(a) In general. This compact organizes an electronic
information sharing system among the federal government and the
states to exchange criminal history records for non-criminal
justice purposes authorized by federal or state law, such as
background checks for governmental licensing and employment.
(b) Obligations of parties. Under this compact, the FBI and
the party states agree to maintain detailed databases of their
respective criminal history records, including arrests and
dispositions, and to make them available to the federal government
and to party states for authorized purposes. The FBI shall also
manage the federal data facilities that provide a significant part
of the infrastructure for the system.
ARTICLE I. DEFINITIONS
As used in this compact, unless the context clearly requires
otherwise:
(a) "Attorney general" means the attorney general of the
United States.
(b) "Compact officer" means either of the following:
(i) With respect to the federal government, an official so
designated by the director of the FBI.
(ii) 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.
(c) "Council" means the compact council established under
article VI.
(d) "Criminal history records" means information collected by
criminal justice agencies on individuals consisting of identifiable
descriptions and notations of arrests, detentions, indictments, or
other formal criminal charges, and any disposition arising
therefrom, including acquittal, sentencing, correctional
supervision, or release, but does not include identification
information such as fingerprint records if such information does
not indicate involvement of the individual with the criminal
justice system.
(e) "Criminal history record repository" means the state
agency designated by the governor or other appropriate executive
official or the legislature of a state to perform centralized
record-keeping functions for criminal history records and services
in the state.
(f) "Criminal justice" includes activities relating to the
detection, apprehension, detention, pretrial release, posttrial
release, prosecution, adjudication, correctional supervision, or
rehabilitation of accused persons or criminal offenders; the
administration of criminal justice includes criminal identification
activities and the collection, storage, and dissemination of
criminal history records.
(g) "Criminal justice agency" includes all of the following:
(i) The courts.
(ii) A governmental agency or any subunit of a governmental
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 administration of
criminal justice.
(iii) Federal and state inspectors general offices.
(h) "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.
(i) "Criterion offense" means any felony or misdemeanor
offense not included on the list of nonserious offenses published
periodically by the FBI.
(j) "Direct access" means access to the national
identification index by computer terminal or other automated means
not requiring the assistance of or intervention by any other party
or agency.
(k) "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.
(l) "FBI" means the federal bureau of investigation.
(m) "Interstate identification index system" or "III system"
means the cooperative federal-state system for the exchange of
criminal history records, and includes the national identification
index, the national fingerprint file, and to the extent of their
participation in such system, the criminal history record
repositories of the states and the FBI.
(n) "National fingerprint file" means a database of
fingerprints, or other uniquely personal identifying information,
relating to an arrested or charged individual maintained by the FBI
to provide positive identification of record subjects indexed in
the III system.
(o) "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.
(p) "National indices" means the national identification index
and the national fingerprint file.
(q) "Nonparty state" means a state that has not ratified this
compact.
(r) "Noncriminal justice purposes" means uses of criminal
history records for purposes authorized by federal or state law
other than purposes relating to criminal justice activities,
including employment suitability, licensing determinations,
immigration and naturalization matters, and national security
clearances.
(s) "Party state" means a state that has ratified this
compact.
(t) "Positive identification" means a determination, based
upon a comparison of fingerprints or other equally reliable
biometric identification 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 combinations thereof,
shall not constitute positive identification.
(u) "Sealed record information" means either of the following,
as applicable:
(i) With respect to adults, that portion of a record that is
not available for criminal justice uses, is not supported by
fingerprints or other accepted means of positive identification, or
is subject to restrictions on dissemination for noncriminal justice
purposes pursuant to a court order related to a particular subject
or pursuant to a federal or state statute that requires action on a
sealing petition filed by a particular record subject.
(ii) With respect to juveniles, whatever each state determines
is a sealed record under its own law and procedure.
(v) "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 all of the following:
(a) Provide a legal framework for the establishment of a
cooperative federal-state system for the interstate and federal-
state exchange of criminal history records for noncriminal justice
uses.
(b) 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, procedures, and standards
established by the council under article VI.
(c) Require party states to provide information and records
for the national identification index and the national fingerprint
file and to provide criminal history records, in a timely fashion,
to criminal history record repositories of other states and the
federal government for noncriminal justice purposes, in accordance
with the terms of this compact and with rules, procedures, and
standards established by the council under article VI.
(d) Provide for the establishment of a council to monitor the
III system operations and to prescribe system rules and procedures
for the effective and proper operation of the III system for
noncriminal justice purposes.
(e) Require the FBI and each party state to adhere to III
system standards concerning record dissemination and use, response
times, system security, data quality, and other duly established
standards, including those that enhance the accuracy and privacy of
those records.
ARTICLE III. RESPONSIBILITIES OF COMPACT PARTIES
(1) FBI responsibilities. The director of the FBI shall do all
of the following:
(a) Appoint an FBI compact officer who shall do all of the
following:
(i) Administer this compact within the United States 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
standards 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 subparagraph (i).
(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 information from nonparty states and 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
such records for criminal justice purposes has priority over
exchange for noncriminal justice purposes.
(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) State responsibilities. Each party state shall do all of
the following:
(a) Appoint a compact officer who shall administer this
compact within that state, ensure that compact provisions and
rules, procedures, and standards established by the council under
article VI are complied with in the state, and 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 information and records for the
national identification index and the national fingerprint file and
the state's III system-indexed criminal history records for
noncriminal justice purposes described in Article IV.
(c) Participate in the national fingerprint file.
(d) Provide and maintain telecommunications links and related
equipment necessary to support the services set forth in this
compact.
(3) Compliance with III system standards. 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 dissemination and
use, response times, data quality, system security, accuracy,
privacy protection, and other aspects of III system operation.
(4) Maintenance of record services:
(a) Use of the III system for noncriminal justice purposes
authorized in this compact shall be managed so as not to diminish
the level of services provided in support of criminal justice
purposes.
(b) Administration of compact provisions shall 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) State criminal history record repositories. 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 records) to
state criminal history record repositories for noncriminal justice
purposes allowed by federal statute, federal executive order, or a
state statute that has been approved by the attorney general and
that authorizes national indices checks.
(2) Criminal justice agencies and other governmental or
nongovernmental agencies. 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 records) 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
authorizes national indices checks.
(3) Procedures. 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 do all of the following:
(a) Protect the accuracy and privacy of the records.
(b) Ensure that records obtained under this compact are used
only by authorized officials for authorized purposes.
(c) Require that subsequent record checks are requested to
obtain current information whenever a new need arises.
(d) Ensure that record entries that may not legally be used
for a particular 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) Positive identification. Subject fingerprints or other
approved forms of positive identification shall be submitted with
all requests for criminal history record checks for noncriminal
justice purposes.
(2) Submission of state requests. Each request for a criminal
history record check utilizing the national indices made under any
approved state statute shall be submitted through that state's
criminal history record repository. A state criminal history record
repository shall process an interstate request for noncriminal
justice purposes through the national indices only if such request
is transmitted through another state criminal history record
repository or the FBI.
(3) Submission of federal requests. Each request for criminal
history record checks utilizing the national indices made under
federal authority shall be submitted through the FBI or, if the
state criminal history record repository consents to process
fingerprint submissions, through the criminal history record
repository in the state in which such request originated. Direct
access to the national identification index by entities other than
the FBI and state criminal history records repositories shall not
be permitted for noncriminal justice purposes.
(4) Fees. A state criminal history record repository or the
FBI may charge a fee, in accordance with applicable law, for
handling a request involving fingerprint processing for noncriminal
justice purposes, and 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) Additional search.
(a) If a state criminal history record repository cannot
positively identify the subject of a record request made for
noncriminal justice purposes, the request, together with
fingerprints or other approved identifying information, shall 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 subdivision (a), the FBI
positively identifies the subject as having a III system-indexed
record or records, the FBI shall so advise the state criminal
history record repository and the state criminal history record
repository shall be entitled to obtain the additional criminal
history record information from the FBI or other state criminal
history record repositories.
ARTICLE VI. ESTABLISHMENT OF A COMPACT COUNCIL
Establishment.
(1) In general. There is established a council to be known as
the "compact council," which shall have 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.
(2) Organization. The council shall continue in existence as
long as this compact remains in effect, be located, for
administrative purposes, within the FBI, and be organized and hold
its first meeting as soon as practicable after the effective date
of this compact.
(3) Membership. The council shall be composed of 15 members,
each of whom shall be appointed by the attorney general, as
follows:
(a) Nine members, each of whom shall serve a 2-year term, who
shall 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 repositories of nonparty states shall
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 1 shall be a
representative of the criminal justice agencies of the federal
government and may not be an employee of the FBI and 1 shall be a
representative of the noncriminal justice agencies of the federal
government.
(c) Two at-large members, nominated by the chair of the
council, once the chair is elected pursuant to subsection (4), each
of whom shall serve a 3-year term, of whom 1 shall be a
representative of state or local criminal justice agencies and 1
shall be a representative of state or local noncriminal justice
agencies.
(d) One member who shall serve a 3-year term, and who shall
simultaneously be a member of the FBI's advisory policy board on
criminal justice information services, nominated by the membership
of that policy board.
(e) One member, nominated by the director of the FBI, who
shall serve a 3-year term and who shall be an employee of the FBI.
(4) Chair and vice chair.
(a) In general. From its membership, the council shall elect a
chair and a vice chair of the council, respectively. Both the chair
and vice chair of the council shall be a compact officer, unless
there is no compact officer on the council who is willing to serve,
in which case the chair may be an at-large member, and shall serve
a 2-year term and be reelected to only 1 additional 2-year term.
(b) Duties of the vice chair. The vice chair of the council
shall serve as the chair of the council in the absence of the
chair.
(5) Meetings.
(a) In general. The council shall meet at least once a year at
the call of the chair. Each meeting of the council shall 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 such meeting.
(b) Quorum. A majority of the council or any committee of the
council shall constitute a quorum of the council or of such
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.
(6) Rules, procedures, and standards. The council shall make
available for public inspection and copying at the council office
within the FBI, and shall publish in the federal register, any
rules, procedures, or standards established by the council.
(7) Assistance from FBI. The council may request from the FBI
such reports, studies, statistics, or other information or
materials as the council determines to be necessary to enable the
council to perform its duties under this compact. The FBI, to the
extent authorized by law, may provide such assistance or
information upon such a request.
(8) Committees. The chair 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 shall take effect upon being entered into by 2 or
more states as between those states and the federal government.
Upon subsequent entering into this compact by additional states, it
shall become effective among those states and the federal
government and each party state that has previously ratified it.
When ratified, this compact shall have the full force and effect of
law within the ratifying jurisdictions. The form of ratification
shall be in accordance with the laws of the executing state.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
(1) Relation of compact to certain FBI activities.
Administration of this compact shall not interfere with the
management 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 USC App.) for all
purposes other than noncriminal justice.
(2) No authority for nonappropriated expenditures. Nothing in
this compact shall require the FBI to obligate or expend funds
beyond those appropriated to the FBI.
(3) Relating to Public Law 92-544. Nothing in this compact
shall diminish or lessen 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
subdivision 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, regarding
the use and dissemination of criminal history records and
information.
ARTICLE IX. RENUNCIATION
(1) In general. This compact shall bind each party state until
renounced by the party state.
(2) Effect. Any renunciation of this compact by a party state
shall be effected in the same manner by which the party state
ratified this compact and shall 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 shall be severable, and 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 the applicability
thereof to any government, agency, person, or circumstance is held
invalid, the validity of the remainder of this compact and the
applicability thereof to any government, agency, person, or
circumstance shall not be affected thereby. If a portion of this
compact is held contrary to the constitution of any party state,
all other portions of this compact shall 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) In general. The council shall have initial authority to
make determinations with respect to any dispute regarding
interpretation of this compact, any rule or standard established by
the council pursuant to article V, and any dispute or controversy
between any parties to this compact.
(2) The council shall hold a hearing concerning any dispute
described in subsection (1) 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 council's decision shall be
published pursuant to the requirements of article VI(6).
(3) Duties of the FBI. The FBI shall exercise immediate and
necessary action to preserve the integrity of the III system,
maintain system policy and standards, protect the accuracy and
privacy of records, and to prevent abuses, until the council holds
a hearing on such matters.
(4) Right of appeal. The FBI or a party state may appeal any
decision of the council to the attorney general, and thereafter may
file suit in the appropriate district court of the United States,
which shall have original jurisdiction of all cases or
controversies arising under this compact. Any suit arising under
this compact and initiated in a state court shall 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 authority.