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CC – Item 3B – Staff Report – Res. 98-18 and 98-19 • M stat f,eport TO: HONORABLE MAYOR • AND MEMBERS ROSEMEAD CITY COUNCIL FROM: FRANK G. TM:PEPI, CITY MANAGER DATE: JUNE 2, 1998 SUBJECT: RESOLUTION NO. 98-18 - A RESOLUTION OF THE CITY OF ROSEMEAD AUTHORIZING IT TO OBTAIN STATE SUMMARY CRIMINAL HISTORY INFORMATION FOR EMPLOYMENT, LICENSING OR CERTIFICATION PURPOSES RESOLUTION NO. 98-19 - A RESOLUTION OF THE CITY OF ROSEMEAD DIRECTING THE CITY MANAGER TO ESTABLISH POLICIES AND PROCEDURES TO CONDUCT BACKGROUND CHECKS In the last Council meeting, this item was deferred to the next meeting due to a Council request. In response to the request, the City Attorney has made the necessary changes to the document. DISCUSSION At the present time, criminal background checks are not required in the processing of applicants, employees, and volunteers of the City of Rosemead. Criminal background checks should be considered a requirement since such checks will protect the interests of the City of Rosemead, its employees and members of the public, and will help minimize potential liability. The City has the authority to undertake such checks due to California Penal Code §11105, which allows cities to obtain state summary criminal background information from the Department of Justice if the City Council has given the City Manager authority to obtain such records. BACKGROUND The process for obtaining criminal background checks involve the submission of a completed Applicant Fingerprint Card to the Department of Justice and any other forms or information required by the Department of Justice. Should a current City employee or volunteer be convicted or arrested, COUNCIL AGENDA JUN © 91996 ITEM No. / x� Resolution 98-18&Resolution 98-19 June 2, 1998 Page 2 of 2 it is their responsibility to inform their immediate supervisor of this information, who will in turn report it to the Department Head and the City Manager. If the employee or volunteer fails to report this information to the City, disciplinary action will be taken. It should be noted that the question of criminal arrests and convictions does appear in the City's job application. Please review the attachments for the policies and forms that will be used for criminal background checks. RECOMMENDATION It is recommended that the City Council approve Resolution No. 98-18 and Resolution No. 98-19 and adopt Exhibits A-C. All documents have been reviewed by the City Attorney. Exhibits: A. City of Rosemead Policy for Conducting Criminal Background Checks B. Policy for Maintaining Criminal Offender Record Information C. Employee Statement Form Use of Criminal Justice Information D. Memorandum from Robert L.Kress,City Attorney E. Penal Code§ 11105 E Penal Code§ 11120-11127 • CITY OF ROSEMEAD RESOLUTION NO. 98-18 A RESOLUTION OF THE CITY OF ROSEMEAD AUTHORIZING IT TO OBTAIN STATE SUMMARY CRIMINAL HISTORY INFORMATION FOR EMPLOYMENT, LICENSING OR CERTIFICATION PURPOSES WHEREAS, Penal Code Section 11105(6)(10) authorizes cities to access state summary criminal history information for employment, licensing, or certification purposes; and WHEREAS, Penal Code Section 11105(6)(10) states that there be a requirement or exclusion from employment, licensing, or certification based on specific criminal conduct on the part of the subject of the record; and WHEREAS, Penal Code Section 11105(b)(10) requires the City Council to specifically authorize access to summary criminal history information for employment, licensing, or certification purposes. NOW THEREFORE,BE IT RESOLVED, that the City of Rosemead is hereby authorized to access summary criminal history information for employment, licensing, or certificatio purposes; and BE IT FURTHER RESOLVED,that the City of Rosemead shall not consider a person who has been convicted of a felony or misdemeanor involving moral turpitude eligible for employment or licensing; except that such conviction may be disregarded if it is determined that mitigating circumstances exist, or that the conviction is not related to the employment or license in question. RESOLVED FURTHER that a copy of the resolution shall be filed with the Department of Justice. PASSED, APPROVED AND ADOPTED this 9th day of June, 1998 Mayor ATTEST City Clerk CITY OF ROSEMEAD RESOLUTION NO. 98-19 A RESOLUTION OF THE CITY OF ROSEMEAD DIRECTING THE CITY MANAGER TO ESTABLISH POLICIES AND PROCEDURES TO CONDUCT BACKGROUND CHECKS WHEREAS,persons who have been convicted of felonies or misdemeanors involving moral turpitude may desire to seek employment with the City of Rosemead; and WHEREAS, the City of Rosemead wishes to protect it employees, residents, and persons conducting business with the City of Rosemead from persons convicted of felonies and misdemeanors involving moral turpitude while reducing its exposure to liability; and WHEREAS, Penal Code Section 11105(6)(10) authorizes cities to access state summary criminial history information for employment, licensing, and certification purposes. NOW THEREFORE, BE IT RESOLVED, that the City Council of Rosemead hereby instructs the City Manager to enact policies and procedures governing access to criminal background material. PASSES, APPROVED AND ADOPTED this 9th day of June, 1998. Mayor ATTEST City Clerk ROBERT I l�� It:W 14 �tt17)1llT 11 ..! ( TY4 ROBERT w.BRuescR 1 �J J MAYOR PRO TEM' &A JOE VAWe3 COUNGOMEMBERR: t t 8838 E.VALLEY BOULEVARD•E0.BOX 399 MARGARET CLARK T ROSEMEAD.CALIFORNIA 91770 JAY T.IMPERIAL TELEPHONE(626)2886671 GARY A.TAYLOR FAX(626)307-9218 CITY OF ROSEMEAD POLICY FOR CONDUCTING CRIMINAL BACKGROUND CHECKS I. Policy Statement: A. To insure that the interest of the City of Rosemead ("City"), its employees and members of the public are protected and to help minimize potential liability, the City has passed a resolution authorizing it to obtain State summary criminal background information on applicants, employees and volunteers from the Department of Justice. B. The City desires to identify those employees, volunteers and prospective employees and volunteers who have a criminal history so that information about that history can be used in employment decisions. C. The City shall not consider a person who has been convicted of a felony or misdemeanor involving moral turpitude eligible for employment or licensing except that such conviction may be disregarded if it is determined by the City Manager that mitigating circumstances exist or that the conviction is not relevant to the employment or license in question. II. Authority: California Penal Code §11105 allows cities to obtain state summary criminal background information from the Department of Justice if the City Council has given the City Manager authority obtain such records. The City Manager authority to obtain such records. The City Manager has such authority pursuant to Resolution No. 98-18 of the City Council. III. Applicability: The City shall obtain criminal background information on all full-time and part-time employees and volunteers and prospective full-time and part-time employees and volunteers. IV. AssiEned Responsibility: It is the employee's, volunteer's or applicant's responsibility to report any conviction or arrest pending final adjudication to the City. The information shall be included on all employment applications. If any convictions or arrests pending conviction occur while the employee or volunteer is working for the City, the employee or volunteer shall report that conviction or arrest to his or her supervisor who shall forward the information to the Department Head and City Manager. EXHIBIT "A" V. Procedures: A. All prospective City employees and volunteers shall be subject to criminal records check as a condition of employment. 1. The City shall submit a completed Applicant Fingerprint Card to the Department of Justice accompanied by any other forms or information required by the Department of Justice in order to obtain the criminal background information. 2. Any information obtained from the Department of Justice shall be used to determine whether the applicant shall be offered a position with the City. B. Applicant Fingerprint Card and any other information requested by the Department of Justice to obtain access to criminal background information for all current employees and volunteers shall be submitted to the Department of Justice unless such Applicant Fingerprint Cards have already been submitted. C. When any employee or volunteer is convicted or is arrested, it is his/her responsibility to immediately report this information to his/her immediate supervisor. The supervisor shall immediately report it to the Department Head and the City Manager. D. If it is found that an employee or volunteer has been convicted or arrested and has not reported this information to the City, the appropriate disciplinary action, up to and including termination, will be taken. E. The City shall enter into a contract with the Department of Justice so that any subsequent conviction or arrest information is reported to the City Manager. 1. Any information about existing employees; or volunteers' convictions and/or arrests pending adjudication shall be reported to the employee's or volunteer's department manager. 2. Upon receipt of information regarding a conviction and/or arrest pending adjudication, the Department Head and the City Manager shall evaluate the effect and potential effect of the employee's or volunteer's record or arrest on their position of employment, fellow employees and the public, shall take appropriate action to maximize public safety and minimize potential liability while respecting the rights of the employee or volunteer. • VI. Confidentiality All information obtained from the Department of Justice is confidential and shall only be disclosed to those persons who need access to such information. Information that is potentially disqualifying shall be disclosed to the subject applicant, employee or volunteer. The applicant, employee or volunteer shall be given a copy of Penal Code § 11120-11127 regarding their right to obtain a copy of their own criminal history information and how to question its accuracy or completeness. Persons with access to such information shall sign a form acknowledging 1) that the information is confidential and, 2) that civil and criminal penalties, as well as dismissal from employment, may result if the confidential information is misused. VII. Monitoring of this Program The City Manager will monitor compliance with this policy and all other Department Heads shall assist the City Manager as needed. This policy is adopted June 9, 1998 by the City Council and shall be effective hereafter. City Manager MAYOR: W I`ll J j \ sesn3aa ROBERT W BRIM ACM I `� MAYOR PRO TEM: JOE vAROLEZ COUNCILMEMBERS: 8838 E.VALLEY BOULEVARD•P.O.BOX 399 * MARGARET CLARK } ROSEMEAD.CALIFORNIA 91770 JAY T IMPERIAL TELEPHONE(626)288-6671 GARYA TAYLOR FAX(626)307-9218 POLICY FOR MAINTAINING CRIMINAL OFFENDER RECORD INFORMATION This policy has been developed to meet the requirements of the State of California, Department of Justice, Bureau of Criminal Identification and Information, Field Operations and Record Security Section for any agency that maintains or receives criminal history information. To all City of Rosemead employees with access to confidential criminal history records: To ensure that the City of Rosemead is aware of the background of employees with access to confidential criminal history records, such employees shall be fingerprinted and processed information through the California Department of Justice. The overall responsibility for the administration of the employee fingerprint and resulting criminal history information rests with the City Manager. A. Record Security: Any questions regarding the release, security and privacy of Criminal Offender Record Information (CORI) are to be resolved by the City Manager. B. Record Storage: CORI shall be under lock and key and accessible only of the City Manager who shall be committed to protect CORI from unauthorized access, use or disclosure. C. Record Dissemination: CORI shall be used only for the purpose for which it was requested by the City Manager. D. Record Destruction: CORI shall be destroyed after employment determination has been made, and copies of same will be destroyed in such a way that the employee's name can no longer be identified. E. Record Reproduction: CORI may not be reproduced for dissemination. F. Training: The City Manager and employees with access to CORI are required: 1. to read and abide by this policy, 2. to be fingerprinted & have a clearance check completed. 3. to have on file a signed copy of the attached Employee Statement Form (which is itself a part of this policy) which acknowledges an understanding of laws prohibiting misuse of CORI. G. Penalties: Misuse of CORI is a criminal offense. Violation of this policy regarding CORI may result in suspension, dismissal, and/or criminal or civil prosecution. EXHIBIT "B" MAYOR. jV�J�/�)Z<A1{A �� 9r Y R09ERl W.BRUESCH \�I MAYOR PRO TEM: Cal JOE VASQUEZ couxaEMEMRERs: 'TTT 8838 E VALLEY BOULEVARD•RO. BOX 399 MARGARET CLARK TF.T ROSEMEAD,CALIFORNIA 91770 JAY T.IMPERIAL GiV TELEPHONE(626)288-6671 GARYA MALOR FAX(626}307-9218 EMPLOYEE STATEMENT FORM USE OF CRIMINAL JUSTICE INFORMATION As an employee of the City of Rosemead you may have access to confidential criminal record information which is controlled by statute. Misuse of such information may adversely affect the individual's civil rights and violates the law. Penal Code Section 502 prescribes the penalties relating to computer crimes. Penal Code Sections 11105 and 13300 identify who has access to criminal history information and under what circumstances it may be released. Penal Code Sections 11140-11144 and 13301-13305 prescribe penalties for misuse of criminal history information. Government Code Section 6200 prescribes the felony penalties for misuse of public record and California Law Enforcement Telecommunications System (CLETS) information. Penal Code Sections 11142 and 13303 state: "Any person authorized by law to receive a record or information obtained from a record who knowingly furnishes the record or information to a person not authorized by law to receive the record or information is guilty of a misdemeanor." Any employee who is responsible for such misuse may be subject to immediate dismissal. Violations of this law may also result in criminal and/or civil action. I HAVE READ I HE ABOVE AND UNDERSTAND THE POLICY REGARDING MISUSE OF CRIMINAL RECORD INFORMATION. Signature: Date: EXHIBIT "C" WALLIN, KRESS, REISMAN & KRANITZ LAW OFFICES 254,00 TWCNTV•tIanrwST 55T. SUITE 3I SANTA MONICA, CALIFORNIA 90405-0205 MCff"°NE 310) 2S0-g5" FACSIMILE 13101 450-0506 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: ROBERT L. KRESS, CITY ATTORNEY/ y.- RE: CRIMINAL HISTORY INFORMATION DATE: MAY 27, 1998 Last nicht the Council had questions regarding the process by which an individual can obtain and seek to correct his own criminal history information. An individual is authorized to obtain his own criminal history information by complying with the process outlined in Penal Code §§11120-11127 (a copy of which is enclosed). To address the Council concerns regarding this matter, I suggest that Section VI. of the City of Rosemead Policy for Conducting Criminal Background Checks be revised to read as follows: VI. Confidentiality • All information obtained from the Department of Justice is confidential and shall only be disclosed to those persons who need access to such information. Information that is potentially disqualifying shall be disclosed to the subject applicant,employee or volunteer. The applicant, employee or volunteer shall be given a copy of Penal Code §§11120-11127 regarding their right to obtain a copy of their own criminal history information and how to question its accuracy or completeness. Persons with access to such information shall sign a form acknowledging 1) that the information is confidential and, 2)that civil and criminal penalties, as well as dismissal from employment, may result if the confidential information is misused. This matter will be placed on the Council's next regular meeting agenda. In the interim, if you have any questions or concerns, please contact me. cc: City Manager Assistant City Manager City Clerk Sgt. Wallace EXHIBIT "D" • • PENAL CODPENAL CODE § 11105 y not charge a parolee orerson on robatiotl ,cams areprohibited from allowing a minor detained in any institution or Dant to subdivision (a) until the pash h facilityunderson. .:camps er their respective jurisdiction to view a videotape or movie shown 'lase fines, state and local penalties, restitution by,the institution or facility that contains harmful matter, as specified in posed by a court.` Chapter 7.6 (commencing with Section 313).of Title 9 of Part 1. .. . . t[hat charges a fee pursuant to subdivision (a : (b) The Department of Corrections, the Department of the Youth Authority, hat reflects the ability of the person on'parole.; countyjuvenile halls and camps, and -local adult detention facilities may iistody to pay. promulgate regulations regarding the showing of videotapes and movies at d to custody if he or she willfully fails to pay any institution or facility under their respective jurisdiction in order to provide ectronic monitoring pursuant to this section,. for the reasonable security of the institution or facility in which a minor or ation of the person that the payment has notr ad Wt is confined and for the reasonable protection of the public consistent i custody may result. - , with Section 2600. 'enlist until January 1,2001: - • ?en C§9004 - - • Added Stats 1994 ch 323 § I (AB 1685). yl, 2001) Report to Legislature § 11060.California Criminalistics Institute; Purposes ' There is hereby established in the Bureau of Forensic Services of the Depart- f sufficient funds, the Board of Prison Terms ment of Justice the California Criminalistics Institute. gislature on or before January I, 2000, that The purposes of the institute shall include, but need not be limited to, the :orrections and the Department of the Youth : facilitation of a comprehensive and coordinated approach to meet the high objectives for any pilot program of continu- technology forensic science needs of crime laboratories operated by the :tit to this chapter, in addition to the primary department and local law enforcement agencies, the provision of a statewide ety through the reduction in the number of : upgrading of advanced laboratory services incorporating new and developing ons on parole. - technologies, the provision of training and methodology development for all :orrections and the Department of the Youth law enforcement agencies, and the handling of advanced casework laboratory 'se pilot programs'of continuous electronic referral services. educe the incidence of parole revocation due The California Criminalistics Institute is intended for use by state and local )arolees forensic scientists and law enforcement personnel. * * * rection and the Department of the Youth Amended Stats 1993 di 56§28(AB 2351). ,nce of parole revocation due to the commis Amendments: 1993 Amendment Deleted the former second and third sentences of the third paragraph which rad: igh,_at a minimum, programs or practices "Priorities regarding training and methodology development shall be.established and monitored by a uu :ontnuous electronic'monitoring that have ern' advisory board to be chaired by the Chief of the Bureau of Forensic Services of the Department of roject created pursuant to this chapter. Justice and shall be comprised of representatives[ruin the California Association of Criminalistics(CAC), on to the Legislature regarding the ii of the California Association of Crime Laboratory Directors (CACLD), the California Association of S-aS the board may determine are in the Toxicologists (CAT)), the California Division of the International Association of Identification (AJ),the - Drug Enforocement Administration(DEA),the Federal Bureau of Investigation(FBI),and the Pace Of- itive until January 1,2001. ficers Standards and Training(POST). Members of the users'advisory board shall be selected by member °inundations.- C§9009. ' - • 1, 2001) Evaluation by counties; Repeal § 11101. Information regarding felons, habitual criminals, or persons con- , Pe of victed of federal offenses The Attorney General shall procure from any available source, and file fo an Diego County and San Mateo County r record and report in the office of the bureau, all descriptions, information, ducted pursuant to this chapter and submitof .egislature on or before Januaryimprisoneds, and measurementsg: any of all persons convictedor riin a felony, he 1, 2000. imprisoned for violating any of the military, naval, or criminal laws of the Test only until January I, 2001, and as of United States, and of all well-known and habitual criminals. lirenacted statute, that is enacted before Amended Stats 1993 ch 1270§2(SB 947). that date. Amendments:ive - until January 1,2001. - . 1993 Amendment:Added"photographs:'after"information.'. .• § 11105. "State summary criminal history information"; To whom informs- w videotape or movie containing harmful rlv tion to be furnished • - L (a) (1) The Department of Justice shall maintain state summary criminal his- t ,Authority and local juvenile halls and tory information. arum in 1992, _ Beginning in 1992, mediums.• indiam omissions. , 105 n2 Penal cl n2 Penal q haan indlu a manges nr additions• media¢omisions EXHIBIT "E" §11105 PENAL[CODE -PENAL CODE (2) As used in this section: - .< 4.1Er. that expressly refers to specific crimi] (i) "State summary criminal history information" means the master record'of 42, person of the state summary crimin. information compiled by the Attorney General pertaining to the identification ,1 requirements or exclusions, or both. and criminal history of any person, such as name, date of birth, physical . criminal conduct. • description, fingerprints, photographs, date of arrests, arresting agencies and (13) Health officers of a city, county, o booking numbers, charges, dispositions, and similar data about the person.•.. the performance of their official duties t (ii) "State summary criminal history information" does not refer to records ( and Safety Code. and data compiled by criminal justice agencies other than the Attorney - (14) Any managing or supervising corn General, nor does it refer to records of complaints to or investigations county correctional facility. conducted by, or records of intelligence information or se-Purity procedures of, (15) Any humane society, or society fo: the office of the Attorney General and the Department of Justice. - ' for the specific purpose of complying v (b) The Attorney General shall furnish state summary criminal hi'sto'ry Code for the appointment of level 1 hu information to any of the following, if needed in the course of their duties, (c) The Attorney General may furn provided that when information is furnished to assist an agency, officer, or information upon a showing of a corn official of state or local government, a public utility, or any entity, in fulfill- provided that when information is fun ing employment, certification, or licensing duties, Chapter 1321 of the Statutes official of state or local government, a of 1974 and of Section 432.7 of the Labor Code shall apply: (1) The courts of the stain. ing employment, certification, or license of 1974 and of Section 432.7 of the Lat (2) Peace officers of the state as defined in Section 830.1, subdivisions (a), (b), (I) Any public utility as defined in Sec and (f) of Section 830.2, subdivision (a) of Section 830.3, subdivisions (a) and that operates a nuclear energy facility (b) of Section 830.5, and subdivision (a) of Section 830.31. sist in employing persons to work at i (3) District attorneys of the state. torney General supplies the data, he or (4) Prosecuting city attorneys of any city within the state. the person to whom the data relates. (5) Probation officers of the state. (2) To a peace officer of the state other t (6) Parole officers of the state. - (3) To a peace officer of another county (7) A public defender or attorney of record when representing a person in f (4) To public officers (other than peace proceedings upon a petition for a certificate of rehabilitation and pardon -- states, or possessions or territories of th pursuant to Section 4852.08. . - to records similar to state summary crir (8) A public defender or attorney of record when representing a person in a authorized by a statute of the United representing criminal rase and if authorized acress by statutory or decisional law. territories of the United States if the is (9) Any agency, officer, or official of the state if the criminal history informa- mance of their official duties. tion is required to implement a statute or regulation that expressly refers to (5) To any person when disclosure is specific criminal conduct applicable to the subject person of the state sum- peace officer with the consent of the st mary criminal history information, and contains requirements or exclusions, history information and for purposes o or both, expressly based upon that specified criminal conduct. subject. (10) Any cityor county, or city and county, or district, or any officer, or of- (6) The courts of the United States, oth ficial thereof if access is needed in order to assist that agency, officer, or of- of the United States. ficial in fulfilling employment, certification, or licensing duties, and if the ac- (7) Peace officers of the United States, cess is specifically authorized by the city council, board of supervisors, or sions of the United States. governing board of the city, county, or district if the criminal history'informa- (8) To any individual who is the subject tion is required to implement a statute, ordinance, or regulation that expressly conjunction with an application to enter refers to specific criminal conduct applicable to the subject person of the state tion. summary criminal history information, and contains requirements or exclu- - (9) Any public utility as defined in Sectio sions, or both, expressly based upon that specified criminal conduct. . access is needed in order to alas[ in (11) The subject of the state summary criminal history information under it employees who in the course of their em procedures established under Article 5 (commencing with Section 11120) of c private residences. The information prow Chapter 1 of Title 1 of Part 4. . ,_.. ,_ '- convictions and any arrest for which the (12) Any person or entity when access is expressly authorized by statute if the ;. or her own recognizance pending trial.. criminal history information is required to implement a statuteor regulation --.If the Attorney General supplies the dat; P gmnmg in 1992, y PENAI.CODE . PENAL CODE §§ 11105 - '-" that expressly refers to specific criminal conduct applicable to the subject y inforrnation" means the Masterrrecord of t person of the state summary criminal history information, and contains ney General pertaining to the identification ' requirements or exclusions, or both, expressly based upon that specified m, Such--as name,date of birth, physical criminal conduct. - ahs, date of arrests,arresting agencies and 't (13) Health officers of a city, county, or city and county, or district, when in dons,and similar data about the person. the performance of their official duties enforcing Section 120175 of the Health icy information" does not 'refer to records ' and Safety Code. `ustice agencies other than the Attorney (14) Any managing or supervising correctional officer of a county jail or other cords of complaints to or investigations • county correctional facility. once information or security procedures of, (15) Any humane society, or society for the prevention of cruelty to animals, and the Department of Justice. _. - for the specific purpose of complying with Section 14502 of the Corporations furnish state summary criminal history Code for the appointment of level 1 humane officers. g, ifneeded in the course of their duties, furnished to assist an agency, officer, or (c) The AttorneypoGhoeral may cmh state summary criminalf hfollowing, history t, a public utility, or any entity, in fulfill- Information upon a showing of is compellinghd need to any ge the follow, or ening duties, Chapter 1321 of the Statutes provided o that when informationl a ubed to assist an agency, officer, or Code shall apply: official of state or local government, a public utility, orto any entity, in Statutes - ing employment, certification, or licensing duties, Chapter 1321 of the Satute of 1974 and of Section 432.7 of the Labor Code shall apply: ned in Section 830.1, subdivisions (a), (b), (I) Any public utility as defined in Section 216 of the Public Utilities Code t (a) of Section 830.3, subdivisions (a) and that operates a nuclear energy facility when access is needed in order to as- n (a) of Section 830.31. - sist in employing to work at the facility.personsry, provided that, if the At- tomey General supplies the data, he or she shall furnish a copy of the data to y city within the state. the person to whom the data relates. (2) To a peace officer of the state other than those included in subdivision (b). (3) To a peace officer of another country. of record when representing a person in (4) To public officers (other than peace officers) of the United States, other certificate of rehabilitation and pardon states, or possessions or territories of the United States, provided that access to records similar to state summary criminal history information is expressly authorized by a statute of the United States, other states, or possessions or f record when representing a person in a ss by statutory or decisional law. territories of the United States if the information is needed for the perfor- 'the state if the criminal history informa- mance of their official duties. ute or regulation that expressly refers to (5) To any person when disclosure is requested by a probation, parole, or to the subject person of the state sum- peace officer with the consent of the subject of the state summary criminal history information and for purposes of furthering the rehabilitation of the and contains requirements or exclusions, pecified criminal conduct. subject. county, or district, or any officer, or of- (6) The courts of the United States, other states, or territories or possessions ,rder to assist that agency, officer, or of- of the United States. 'cation, or licensing duties, and if the ac- (7) Peace officers of the United States, other states, or territories or posses- .e city council, board of supervisors, or sions of the United States. )r district if the criminal history informa- (8) To any individual who is the subject of the record requested if needed in e, ordinance, or regulation that expressly conjunction with an application to enter the United States or any foreign na- plicable to the subject person of the-State tion. on, and contains requirements or exclu- (9) Any public utility as defined in Section 216 of the Public Utilities Code, if that specified criminal conduct. access is needed in order to assist in employing current or prospective Vary criminal history information under employees who in the course of their employment may be seeking entrance to 5 (commencing with Section 1I120) of private residences. The information provided shall be limited to the record of 1 convictions and any arrest for which the person is released on bail or on his s is expressly authorized by statute if the or her own recognizance pending trial. red to implement a statute or regulation ` If the Attorney General supplies the data pursuant to this paragraph, the At- .mg in 1991. Beginning in 1992. dditiq¢ •indicate omissions. n2 Pmai CI 02 Penal C] italics indicate rnansm or additions, •indicate 107 § 11105 PENAL CODE (r PENAL CODE torney General shall furnish a copy of the data to the current or prospective be deposited in a special.account in th employee to whom the data relates. • ti expenditure by the department to offset Any information obtained from the state summary criminal history is confi- Y :tions and_for:maintenance and improver dential and the rereiving public utility shall not disclose its contents,.other &. .information.is obtained upon.appropriae than for the purpose for which it was acquired. The state summary criminal If).Wheneverthere is a-conflict; the pt. history information in the possession of the public utility and all copies made - fingerprints of applicants for security gt from it shall be destroyed not more than 30 days after employment or promo- firearms qualification permits submitted tion or transfer is denied or granted, except for those cases where a current Hess and Professions Code shall.take pric or prospective employee is out on bail or on his or her own recognizance • pending trial, in which case the state summary criminal history information (g). It is not a violation of this section t and all copies shall be destroyed not more than 30 days after the case is information obtained from a record, pro. resolved. of the record is not disclosed.... A violation of this paragraph is a misdemeanor, and shall give the current or (h),I[ is not a violation.of this section to prospective employee who is injured by the violation a cause of action against record in (I) a transcript or record of a i the public utility to recover damages proximately caused by the violations. - or (2)any other public record if the nick Any public utility's request for state summary criminal history information record is authorized by a court, statute, i m for purposes of employing current or prospective employees who may be seek- (1) Notwithstanding any other law, the D ing entrance to private residences in [he course of their employment shall be local law enfgrcement agency may requi: deemed a "compelling need" as required to be shown in this subdivision. tine purpose of conducting summary trim - are authorized by, ' Nothing in this section shall be construed as imposing any duty upon public �) The •state su•mmary cruninal history it utilities to request state summary criminal history information on any current of. mental incompetence'pursue.. nt to CL or prospective employees. 1367) of Title 10 of Part 2 arising out o (10) To any campus of the California State University or the University of fense specified in Section 290. California, or any four-year college or university accredited by a regional ac- - Amended Stan 1993 ch'1269 612(AB 1972),ch 1270§, creditation organization approved by the United States Department of Educa- 1996 ch 1023§397.1 (SB 1497),effective September 29, 1 tion, if needed in conjunction with an application for admission by a convicted ch 598 613(SB 633). felon to any special educationprogram for convicted felons, including, but not Amendments P 1su93bd d(aMX1);227 adeed to ntrod technical of limited to, university alternatives and halfway houses. Only conviction infor- in s,ba(a)(z>p);(2)amended the introductory clause of mation shall be furnished. The college or university may require the convicted "any of the following';and On deleting"the provisions felon to be fingerprinted, and any inquiry to the department under this our- - "when" before"authors ed"u,sum (b)(s);(4)subtitu tion shall include the convicted felon's fingerprints and any other information sate"m subd(b)(9);(5)amended soba(b)po>bystmaim specified bythedepartment. and @)"if the'for"when such"after"licensing duties,a p - "if the"for"when such"after'licensing duties;and site, (d) Whenever an authorized request for state summary criminal history "when such"after"authorized by statute"in subd(b)(12 information pertains to a person whose fingerprints are on file with the 1321•'in the introductory clause of stbd(c);(9)subsamu Department of Justice and the department has no criminal history of that me fourth time if appears subd (c)(a):(10)Substituted and after"Public-Utilities Code,"in subd(c)(9);(11)del person, and the information is to be used for employment, licensing, or or'in the fourth paragraph of am (c)(9);(12)mnmdec: certification purposes, the fingerprint card accompanying the request for "and Colleges" after "University" the first time ft app information, if any, may be stamped "no criminal record" and returned to the needed" after"Education,"; (13)denied `provisions of person or entity making the request sentence of subd(e)and in subd(i);(14)su6admred••ua last sentence of subd (e); and (IS).substituted "if' for (e) Whenever state summary criminal history information is furnished as the amended l Slats 1993,ch 1270, cotpaml to the retic result of an application and is to be used for employment, licensing, or amended by one earlier chapter,di 1269.Sce Gov C§ certification purposes, the Department of Justice may charge the person or 1995 Amending kr Added subd (b)(15):_-` entity making the request a fee that it determines to be sufficient to reimburse 1996 Amendment(eb 1023}.Stimtituted-Section 120175 the department for the cost of furnishing the information. In addition, the 1996 Amendment (ch 1026):.(1)Substituted •Sxtion 311 Department may of Justice add a surcharge to the fee to fund maintenance 199ed Amba 0) , P y 1997 Amt)"Se ti Amend fora eco 3110"in si (1 and improvements to the systems from which the information is obtained, (b)OD; (z>-saeon-120ns•for"Section 3lio•�in soba Notwithstanding any other law, any person or entity required to pay a fee to tions coal•for-Section 607f of the Civil Code•-m subs the department for information received under this section may charge the : applicant a fee sufficient to reimburse the person or entity for this expense: All § 11105.02. Provision of criminal histon moneys received by the department pursuant to this section. Sections 11105.3 ' spective concessionaire—---- -and 12054 of the Penal Code, and Section 13588 of the Education Code shall : In addition to furnishing stateisummary BegN^mg in 1992, aegiming.a!: 108 hate indicate changes or additions.•*•indicate omissions. X12 Penal C] 112 Penal Cl ... naies indicate chanes or adds PENAL CODE .. PENAL CODE § 11105.02 337 of the data to the current or prospective 7. be-deposited in a special-account in the.General Fund to be available for S. - expenditure by the department to offset costs incurred pursuant to those sec- he state summary criminal history is confiu-- tions andformaintenance and improvements to the systems from which the itility shall not disclose its contents,-other information is obtained upon appropriation by the Legislature. was acquired. The state summary criminal (0 Whenever there is a•conflict, the prorfrssing of criminal fingerprints and ion of the public utility and all copies made fingerprints of applicants for security guard or alarm agent registrations or e than 30 days after employment or promo- firearms qualification permits submitted pursuant to Section 7514 of the Busi- red, except for those cases where a current nese and Professions Code shall take priority over the processing of applicant n bail or on his or her own recognizance fingerprints. -. - tate summary criminal history information (g) It is not a violation of this section to disseminate statistical or research not more than 30 days after the case is information obtained from a record, provided that the identity of the subject of the record is not disclosed. misdemeanor, and shall give the current or (h) It is not a violationof this section to include information obtained from a .Ni by the violation a cause of action against record in (1) a transcript or record of a judicial or administrative proceeding ages proximately caused by the violations. - or(2) any other public record if the inclusion of the information in the public ate summary criminal history information record is authorized by a court, statute, or decisional law. or prospective employees who may be seek- (i) Notwithstanding any other law, the Department of Justice or any state or in the course of their employment shall be local law enforcement agency may require the submission of fingerprints for quired to be shown in this subdivision. - the purpose of conducting summary criminal history information checks that are authorized by law. mstrued as imposing any duty upon public (j) The state summary criminal history information shall include any finding :riminal history information on any current of mental incompetence pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2 arising out of a complaint charging a felony o€ irnia State University or the University of fense specified in Section 290. - e or university accredited by a regional ac- Amended Stats 1993 ch 1269§12(AB 1972),ch 1270§3(SB 947);Seats 1995 ch 806§2(AB 1571);Stats by the United States Department of Educa- 1996 ch 1023§397-1 (SB 1497),effective September 29, 1996.ch 1026§3(AB 2104).Amended Sults 1997 an application for admission by a convicted ch 598 § 13 (se 633). ram for convicted felons, including, but not Amendments: 1993 Amendment:In addition to making technical changes,(1)added"photographs,"after"fingerprints" and halfway houses. Only conviction infor- in sued(a)(2)(1);(2)amended the introductory clause of subd(b)by(a)substituting"if'for"when"after ege or university may require the convicted "any of the following":and(b)deleting"the provisions of'before"Chapter 1321":(3)substituted"if'for inquiry to the department under this sec- "when"before"authorized"in sued (b)(8); (4)substituted "if the'for"when such"after"official of the on's fingerprints and anyother information state"in subd(h)(9);(5)amendd subd(6)(10)by substituting a)"h" officialfor"when"afte "or thhvmf; and(b)"if the"for"when such"after"licensing duties,and"and after"county.or district";(6)stbstimtd "if the"for"when such"after"licensing duties,and after"county,or district";(7)substituted"if the"for nest for state summary criminal history "when such"after"authorized by statute"in subd(b)(121:.(8)deleted'the provisions of before"Chapter whose fingerprints are on file with the 1321"in the introductory clause of sued(c);(9)substituted"if the"for"when such"after"Unita States" the fourth time if appears in sum (e)(4):(10)substituted "if'for when"after"requested"in sum(c)B1 2pattmen[ has no criminal history of that and after"Public Utilities Code."in sten(c)(9);(11)deleted'any of the provisions of after"A violation o be used for employment, licensing, or of in the fourth paragraph of sum (c)(9);(12)amended the first sentence of subd (c)(10)by(a)deleting lrint card accompanying the request for "and Colleges" after "University" the first time it appears: and (1)substituting "if needed" for'when d "no criminal record" and returned to the needed"after"Education,"; (13)deleted "provisions of'after"Notwithstanding any other"in the third 3t. sentence of subd(e)and in subd(i):(14)substituted 'upon appropriation"for"when appropriated"in the last sentence of subd (n); and (15) substituted "if' for "when" after "public record" in sem N)( (As inal history information is furnished as the amended by Suns 1993, ch 1270, compared to the section as it read prior to 1993.This section w s also o be used for employment, licensing, or amended by one earlier chapter,ch 1269.See Gov C§9605.) went of Justice may charge the person or 995 Amendment(sen d95 Amendment: ed subd ubbIimted "Section 120175" ( it determines to be sufficient to reimburse for"Section 3110"in stud @)03). rnishing the information. In addition, the 1996 Amendment(ch 1026):(1)Substituted "Section 3110"for"Section 1018"in sum 01)(13);and(2) surcharge to the fee to fund maintenance added sum Q). 1997 Amendment: Amended subd (b) by substituting (I) "of Chapter 1 of for ", Chapter l." in subd ; from which the information,Is obtained. (b)(11):(2)'Section 120175' for"Section 3110"in sued(b)(13);and(3)"Section 14502 of the Corpora- iy person or entity required to pay a fee to dons Code"for"Section 607f of the Civil Code"in subd (b)(15) -.' ; xeived under this section may charge the se the person or entity for this expense:All § 11105.02. Provision of criminal history information for screening of pro- t pursuant to this section, Sections 11105.3 spective concessionaire .. - Section 13588 of the Education Code shall In addition to furnishing state summary criminal history information to the ginning in 1992 Beginning n 1992, sr dditioru'."iadi®[e omissions, [12 Penal Cl [12 Penal C] italics indicate changes or additions.•••indicate omissions. 109 § 11120. Record defined As used in this article, "record" with respect to any person means the state summary criminal history information as defined in subdivision (a) of Sec- tion 11105, maintained under such person's name by the Department of Justice. (Added by Stats.1971, c. 1439, p. 2844, § 1. Amended by Stats.1972, c. 1377, p. 2841, § 86.1; Stats.1975, c. 1222, p. 3087, § 3.) Historical and Statutory Notes As added, this section read: and substituted in the second sentence "depart- "As used in this article. 'record' with respect ment" for "bureau". to any person means the master record sheet The 1975 amendment rewrote the section. maintained under such person's name by the which previously read: Bureau of Criminal Identification and Investi- gation, and which is commonly known as 'ar- "As used in this article, 'record' with respect rest record, 'criminal record sheet' or 'rap to any person means the master record sheet sheet.' 'Record' does not include any other maintained under such person's name by the records of the bureau". Department of Justice, and which is commonly The 1972 amendment substituted in the first known as 'arrest record, 'criminal record sentence "Department of Justice" for "Bureau sheet; or'rap sheet.' 'Record'does not include of Criminal Identification and Investigation" any other records of the department." Library References Criminal Law X1226(1). C.J.S. Criminal Law § 1734. WESTLAW Topic No. 110. Words and Phrases (Perm.Ed.) Notes of Decisions Construction with other laws 2 records constituted special legislation and took Due process I precedence over any general legislation such as Fee waiver form requests 3 Public Records Act Younger v. Berkeley City Council (1975) 119 Cal.Rptr. 830, 45 C.A.3d 825. I. Due process Even as to documents In the file of an in. 3. Fee waiver form requests mate which are privileged by statute or public Department of Justice policy, of placing bur- policy, there is no absolute privilege against den of requesting fee waiver form on Indigent inspection; rather the privilege may be exer- individual who wishes to review his arrest cised only insofar as it does not deny due record and of not providing such forms to process to the inmate. In re Olson (1974) 112 local agencies, did not violate this section re- Cal.Rptr. 579, 37 C.A.3d 783. garding person's right to obtain copy of arrest record. Central Valley Chapter of 7th Step 2. Construction with other laws Foundation, Inc. v. Younger (App. 1 Dist.1989) Sections 11120 to 11127 dealing with access 262 Cal.Rptr. 496, 214 CalApp.3d 145, rehear- of private individuals to their state arrest ing denied and modified. § 11121. Purpose of article It is the function and intent of this article to afford persons concerning whom a record is maintained in the files of the bureau an opportunity to obtain a copy of the record compiled from such files, and to refute any erroneous or inaccurate information contained therein. (Added by Stats.1971, c. 1439, p. 2844, § 1. Amended by Stats.1980, c. 939, § 1.) 50 EXHIBIT "F" Title I - , Historical and Statutory Notes The 1980 amendment substituted "an oppor- and deleted "as is consistent with the require- tunity to obtain a copy of the record" for "such ments and functions of the bureau" from the reasonable opportunity to examine the record"; end of the section. § 11122. Application; contents; fee Any person desiring a copy of the record relating to himself shall obtain an application form furnished by the department which shall require his finger- prints in addition to such other information as the department shall specify. Applications may be obtained from police departments, sheriff departments, or the Department of Justice. The fingerprinting agency may fix a reasonable fee for affixing the applicant's fingerprints to the form, and shall retain such fee. (Added by Stats.1971, c. 1439, p. 2844, § 1. Amended by Stats.1972, c. 1377, p. 2842, § 86.2; Stats.1980, c. 939, § 2.) Historical and Statutory Notes As added, this section read: The 1980 amendment rewrote the section, "Any person desiring to examine a record which previously read: relating to himself shall obtain from the chief "Any person desiring to examine a record of police of the city of his residence, or, if not a relating to himself shall obtain from the chief resident of a city, from the sheriff of his court- of police of the city of his residence, or, if not a y of residence, or from the office of the be thresident of a city, from the sheriff of his coun- reau, an application form furnished by the bureau which shall require his fingerprints in ty of residence, or from the office of the de- addition to such other information as the bu- partment an application form furnished by the reau shall specify. The city or county, as ap. department which shall require his finger- plicable, may fix a reasonable fee for affixing prints in addition to such other information as the applicant's fingerprints to the form, and the department shall specify. The city or shall retain such fee for deposit in its tree- county, as applicable, may fix a reasonable fee Bury". for affixing the applicant's fingerprints to the The 1972 amendment substituted department form, and shall retain such fee for deposit in for bureau at three places in the first sentence. its treasury." § 11123. Submission of application; fee The applicant shall submit the completed application directly to the depart- ment. The application shall be accompanied by a fee not to exceed twenty- five dollars ($25) that the department determines equals the costs of process- ing the application and providing a copy of the record to the applicant. All fees received by the department under this section are hereby appropriated without regard to fiscal years for the support of the Department of Justice in addition to such other funds as may be appropriated therefor by the Legisla- ture. Any request for waiver of fee shall accompany the original request for the record and shall include a claim and proof of indigency. (Added by Stats.1971, c. 1439, p. 2844, § 1. Amended by Stats.1972, c. 1377, p. 2842, § 86.3; Stats.1980, c. 939, § 3.) Historical and Statutory Notes The 1972 amendment substituted department The 1980 amendment substituted "not to ex- for bureau throughout the section. ceed twenty-five dollars ($25)" for "of five dol- lars ($5) or such higher amount, not to exceed 51 § 11123 INVESTIGATION AND CONTROL Part 4 ten dollars ($10)" and "providing a copy of the tenet; and added the fourth sentence relating record to the applicant for "making a record to requests for waiver of fee. available for examination" in the second sen- § 11124. Determination of existence of record; copy of record or notice of no record; delivery When an application is received by the department, the department shall determine whether a record pertaining to the applicant is maintained. If such record is maintained, the department shall furnish a copy of the record to the applicant or to an individual designated by the applicant. If no such record is maintained, the department shall so notify the applicant or an individual designated by the applicant. Delivery of the copy of the record, or notice of no record, may be by mail or other appropriate means agreed to by the applicant and the department. (Added by Stats.1971, c. 1439, p. 2844, § 1. Amended by Stats.1972, c. 1377, p. 2842, § 86.4; Stats.1975, c. 667, p. 1457, § 1; Stats.1980, c. 939, § 4.) Historical and Statutory Notes As added, this section read: place set by the department, authorize the ap- "When an application is received by the bu- plicant to review the record at any police de- reau, the bureau shall determine whether a partment or sheriff's office which agrees to record pertaining to the applicant is main• make the record available to the applicant". tamed. If such record is maintained, the bit. The 1980 amendment rewrote the section, reau shall inform the applicant by mail of the which previously read: existence of the record and shall specify a time "When an application is received by the de- when the record may be examined at a suitable partment, the department shall determine facility of the bureau. Upon verification of his whether a record pertaining to the applicant is Identity, the applicant shall be allowed to ex- maintained. If such record is maintained, the amine the record pertaining to him, or a true department shall inform the applicant by mail copy thereof, for a period not to exceed one of the existence of the record and shall either hour. The applicant may not retain or repro- specify a time when the record may be exam- duce the record, but he maymake a written Ined at a suitable facility of the department or, summary or notes in his own handwriting." if the applicant is unable to review the record The 1972 amendment substituted department at the time and place set by the department, for bureau throughout the section. authorize the applicant to review the record at The 1975 amendment deleted in the fourth any police department or sheriffs office which sentence "he" preceding "may make" and re• agrees to make the record available to the wrote the second sentence to read: "If such applicant. Upon verification of his identity, record is maintained, the department shall in. the applicant shall be allowed to examine the form the applicant by mail of the existence of record pertaining to him, or a true copy there- the record and shall either specify a time when of, for a period not to exceed one hour. The the record may be examined at a suitable tacit. applicant may not retain or reproduce the ity of the department or, if the applicant is record, but may make a written summary or unable to review the record at the time and notes in his own handwriting." Section Section 11125. Unauthorized requirement or request to 11126. Correction of record; written request for furnish record or notice of no record; clarification; notice of correction of mc- violation. ord; administrative adjudication; judi- cial review. § 11125. Unauthorized requirement or request to furnish record or notice of no record; violation No person or agency shall require or request another person to furnish a copy of a record or notification that a record exists or does not exist, as provided in Section 11124 • • •. A violation of this section is a misdemeanor. (Amended by Stats.1992,c. 1727 (AB3773), § 2.) Historical and Statutory Notes 1992 Legislation The 1992 amendment rewrote the section. Law Review and Journal Commentaries Review of selected 1992 California legislation. 24 Pae L.J.776(1993). § 11126. Correction of record; written request for clarification; notice of correction of record; administrative adjudication; judicial review (a) If the applicant desires to question the accuracy or completeness of any material matter contained in the record, he or she may submit a written request to the department in a form established by it. The request shall include a statement of the alleged inaccuracy or incompleteness in the record, and its materiality, and shall specify any proof or corroboration available. Upon receipt of the request, the department shall review the record to determine if the information correctly reflects the source document, and if it does not, the department shall make the necessary corrections and shall provide the applicant with a corrected copy of the record. If the accuracy of the source document is questioned the tm deparent shall forward it to the person or agency which furnished the questioned information. This Additions or changes Indicated by underline; deletions by asterisks * • • person or agency shall, within 30 days of receipt of the written request for clarification, review its information and forward to the department the results of The review. (b) If the agency concurs in the allegations of inaccuracy or incompleteness in the record, and finds that the error is material, it shall correct its record and shall so inform the department, which shall correct the record accordingly. The department shall inform the applicant of its correction of the record under this subdivision within 30 days. The department and the agency shall notify all persons and agencies to which they have disseminated the incorrect record in the past 90 days of the correction of the record,and the applicant shall be informed that the notification has been given. The department and the agency shall also notify those persons or agencies to which the incorrect record has been disseminated which have been specifically requested by the applicant to receive notification of the correction of the record, and the applicant shall be informed that the notification has been given. (c) If• • ' the department or the agency denies the allegations of inaccuracy or incompleteness in the record, the matter shall be referred for administrative adjudication in accordance with Chapter 5 (commencing with Section 11500) of Part 1, Division 3, Title 2 of the Government Code for a determination of whether inaccuracy or incompleteness exists in the record. The • • • department shall be the respondent in the hearing. If a material inaccuracy or incompleteness is found in any record, the department and the agency in charge of that record shall be directed to correct it accordingly • • •. The department and the agency shall notify all persons and agencies to which they have disseminated the incorrect record in the past 90 days of the correction of the record, and the applicant shall be informed that the notification has been given. The department and the agency shall also notify those persons or agencies to which the incorrect record has been disseminated which have been specifically requested by the applicant to receive notification of the correction of the record, and the applicant shall be informed that the notification has been given. Judicial review of the decision shall be governed by Section 11523 of the ernment Code. The applicant shall be informed of the decision within 30 days of its issuance in accordance with Section 11518 of the Government Code. (Amended by Stats.1992, c. 12277 (AB3T73), § 3.) Historical and Statutory Notes 1992 Legislation The 1992 amendment rewrote subd. (a): and made noambetantive changes in subda(b)and(c). § 11127. Regulations The department shall adopt all regulations necessary to carry out the provisions of this article. (Added by Stats.1971, c. 1439, p. 2845, § I. Amended by Stats.I972, c. 1377, p. 2842, § 86.7.) Historical and Statutory Notes The 1972 amendment substituted department for bureau. Cross References Disclosure of arrest or detention records to employer, violation of provisions, see Labor Code § 432.7.