Criminal History Record Checks
Implements certain LRB study recommendations concerning access and use of criminal history record information to conduct criminal history record checks for noncriminal justice employment and licensing screening; creates working group to make recommendations on policy issues raised by study.
TWENTY-FIRST LEGISLATURE, 2001
STATE OF HAWAII
A BILL FOR AN ACT
relating to criminal history record checks.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that there is little common understanding of what is meant by the term criminal history record check, what criminal history records are available or accessible, or how those records may be used by noncriminal justice state and county agencies or individuals in employment and licensing decisions. "Criminal history records" and "criminal history record checks" mean different things to different people.
According to a study by the legislative reference bureau, Hawaii laws that govern access and use of criminal history record information and other laws that authorize criminal history record checks, when considered together, are confusing and inconsistent, overlapping in some areas and conflicting in others. Hawaii's patchwork approach to statutory authorization of criminal history record checks over the years has contributed to the confusion. Although Hawaii law authorizes a number of criminal history record checks, the term is not uniformly defined. Related laws that govern the dissemination and use of criminal history records use different terminology to refer to the same criminal history records. The lack of consistent terminology and the related laws that overlap and conflict cloud many people's understanding of "criminal history record check" issues.
The effectiveness of a criminal history record check is determined, in part, by what criminal history records are available for review and whether the use of available criminal history records is subject to any constraints established by other law. Hawaii conviction data is public record and freely available for inspection by the public. Hawaii employment practices law allows any employer, public or private, to inquire about and consider criminal convictions in employment decisions, subject to certain restrictions. An employer may conduct criminal history record check of Hawaii conviction data to determine employment suitability under existing law. The dissemination and use of arrest records where the individual was not subsequently convicted (or "nonconviction data") for noncriminal justice purposes that include employment and licensing screening is generally prohibited.
The legislature finds that because state laws that govern noncriminal justice access and use of criminal history record information in Hawaii and many other states were enacted during the 1970s and 1980s and because the demand for this information by noncriminal justice users continues to increase in today's new "information age", the development of a new generation of policy and law relating to criminal history record information is appropriate. Despite the confusing state of the applicable laws, each legislative session continues to see new requests for legislation authorizing criminal history records checks for employment and licensing screening.
Instead of continued piecemeal authorization of criminal history record checks, all related issues should be considered together, balancing public safety with privacy expectations. Criminal history record checks must be examined in light of laws that govern the access and use of criminal history record information, not in isolation. The perspective of all stakeholders must be taken into account. Related issues include negligent hiring and employer liability issues, as well as the successful reintegration of former offenders into society. A comprehensive review of the interrelated issues presents an opportunity to develop a new generation of policy and law relating to the effective and appropriate dissemination and use of criminal history record information, balancing the public's need to know with the record subject's right to privacy.
Senate Concurrent Resolution No. 122, S.D. 1 (2000), directed the legislative reference bureau to conduct a study of the issue of criminal history record checks. The bureau's study points out inconsistencies and conflicts in Hawaii law and provides recommendations on criminal history record check issues. Recommendations to be implemented by this Act include:
(1) Use of consistent, uniform terminology to refer to criminal history record information, nonconviction data, and conviction data in laws governing to dissemination and use of criminal history record information and in laws authorizing criminal history record checks.
(2) Elimination of redundant, unnecessary, duplicative, or conflicting laws.
(3) Clarification of section 846-9, Hawaii Revised Statutes, to allow criminal history record information to state or federal government agencies to conduct employment and licensing suitability determinations.
(4) Creation of a criminal history record check working group of all stakeholders to resolve policy issues relating to the access and use of criminal history record information for noncriminal justice purposes of employment and licensing and submit recommendations to the legislature.
The purpose of this Act is to implement some of the recommendations of the legislative reference bureau's study, including the creation of a representative working group to resolve policy issues raised in the bureau's study by conducting a comprehensive review and analysis of all issues related to the noncriminal justice access and use of criminal history record information for employment and licensing determinations and other related criminal history record check issues.
SECTION 2. Section 378-1, Hawaii Revised Statutes, is amended:
1. By adding a new definition to be appropriately inserted and to read as follows:
""Nonconviction data" means:
(1) Arrest information without a disposition if an interval of one year has elapsed from the date of arrest and no active prosecution of the charge is pending;
(2) Information disclosing that:
(A) The police have elected not to refer a matter to a prosecutor, or
(B) A prosecutor has elected not to commence criminal proceedings; or proceedings have been indefinitely postponed; and
(3) All acquittals and all dismissals."
2. By repealing the definition of "arrest and court record".
Arrest and court record" includes any information about an individual having been questioned, apprehended, taken into custody or detention, held for investigation, charged with an offense, served a summons, arrested with or without a warrant, tried, or convicted pursuant to any law enforcement or military authority."]
SECTION 3. Section 378-2, Hawaii Revised Statutes, is amended to read as follows:
"§378-2 Discriminatory practices made unlawful; offenses defined. It shall be an unlawful discriminatory practice:
(1) Because of race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, or [
arrest and court record:] nonconviction data:
(A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;
(B) For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;
(C) For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification, or discrimination;
(D) For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or
(E) For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;
(2) For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;
(3) For any person whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;
(4) For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;
(5) For any employer to refuse to hire or employ or to bar or discharge from employment, any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;
(6) For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; or
(7) For any employer or labor organization to refuse to hire or employ, or to bar or discharge from employment, or withhold pay, demote, or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace. For purposes of this paragraph, the term "breastfeeds" means the feeding of a child directly from the breast."
SECTION 4. Section 846-9, Hawaii Revised Statutes, is amended to read as follows:
"§846-9 Limitations on dissemination. Dissemination of [
nonconviction data] criminal history record information shall be limited, whether directly or through any intermediary, only to:
(1) Criminal justice agencies, for purposes of the administration of criminal justice and criminal justice agency employment;
2) Individuals and agencies specified in section 846-10;]
(2) The governor in individual cases or situations wherein the governor elects to become actively involved in the investigation of criminal activity or the administration of criminal justice in accordance with the governor's constitutional duty to insure that the laws be faithfully executed;
(3) The attorney general in connection with the attorney general's statutory authority and duties in the administration and enforcement of the criminal laws and for the purpose of administering and insuring compliance with the provisions of this chapter;
(3)] (4) Individuals and agencies pursuant to a specific agreement with a criminal justice agency to provide services required for the administration of criminal justice pursuant to that agreement; provided that such agreement shall specifically authorize access to data, limit the use of data to purposes for which given, and insure the security and confidentiality of the data consistent with the provisions of this chapter;
(4)] (5) Individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency; provided that such agreement shall specifically authorize access to data, limit the use of data to research, evaluative, or statistical purposes, and insure the confidentiality and security of the data consistent with the purposes of this chapter;
(5)] (6) Individuals and agencies for any purpose authorized by statute, ordinance, executive order, or court rule, decision, or order, as construed by appropriate state or local officials or agencies; and
(6)] (7) Agencies of state or federal government which are authorized by statute or executive order to conduct investigations determining employment or licensing suitability or eligibility for security clearances allowing access to classified information.
These dissemination limitations do not apply to conviction data. These dissemination limitations also do not apply to data relating to cases in which the defendant is acquitted, or charges are dismissed, by reason of physical or mental disease, disorder, or defect under chapter 704.
Criminal history record information disseminated to noncriminal justice agencies or individuals shall be used only for the purposes for which it was given.
No agency or individual shall confirm the existence or nonexistence of criminal history record information to any person or agency that would not be eligible to receive the information itself."
SECTION 5. Section 846-10, Hawaii Revised Statutes, is repealed.
§846-10 Dissemination. Criminal history record information may be disseminated to: (1) The governor in individual cases or situations wherein the governor elects to become actively involved in the investigation of criminal activity or the administration of criminal justice in accordance with the governor's constitutional duty to insure that the laws be faithfully executed; (2) The attorney general in connection with the attorney general's statutory authority and duties in the administration and enforcement of the criminal laws and for the purpose of administering and insuring compliance with the provisions of this chapter; (3) To such other individuals and agencies who are provided for in this chapter or by rule or regulation."]
SECTION 6. (a) There is established within the department of the attorney general, for administrative purposes, a temporary criminal history record check working group to review policy issues concerning the noncriminal justice access and use of criminal history record information for employment and licensing purposes as raised in the legislative reference bureau study. The working group shall review existing laws governing access and use of criminal history record information, laws authorizing criminal history record checks for noncriminal justice purposes of employment and licensing, and other criminal history record check issues and make recommendations to the legislature.
(b) The working group shall be composed of members to be appointed by the attorney general and shall include, but not be limited to, participants representing or from the following agencies and groups:
(1) Department of the attorney general;
(2) Department of health;
(3) Department of human services;
(4) Department of commerce and consumer affairs;
(5) Department of public safety;
(6) Department of education;
(8) Hawaii labor relations board;
(9) Law enforcement agencies;
(10) Independent or private school association;
(11) Condominium associations;
(12) Private detective and security guard agencies;
(13) Groups or individuals that provide care for children, the elderly and persons in need of support;
(14) The Hawaii criminal justice data center;
(15) The civil rights commission;
(16) The civil service commission;
(17) County licensing boards;
(18) Public employee unions; and
(19) Public and private employers.
The working group shall be chaired by a representative from the department of the attorney general.
(c) The working group shall consider policy issues applicable to access and use of criminal history record information, laws authorizing criminal history record checks, and other issues related to criminal history record checks for noncriminal justice purposes of employment and licensing. In formulating policy and law recommendations relating to access and use of criminal history record information to conduct criminal history record checks for noncriminal justice purposes of employment and licensing determinations, the working group shall balance the public's need to know, employer liability, the reintegration of convicted offenders into society, and the record subject's right to privacy.
The working group shall identify statutes, administrative rules, and practices related to access and use of criminal history information and criminal history record checks for noncriminal justice employment and licensing purposes and make recommendations for repeal and amendment of existing laws and adoption of new laws. Issues that the working group shall address include, but are not limited to:
(1) Consistent and uniform terminology in laws relating to criminal history record checks, including laws governing access and use of criminal history record information.
(2) The scope of the "criminal history record checks" conducted by the Hawaii criminal justice data center should be clarified. Where a statute indicates a "fingerprint analysis and name inquiry" of "state criminal history record files", are name checks only sufficient?
(3) All statutorily authorized or required criminal history record checks should be reviewed, and amended or repealed to conform to existing law, including standard definitions and uniform procedures to be adopted.
Should statutes that authorize a check of Hawaii conviction data only to determine employment suitability be repealed to eliminate unnecessary laws and to promote clarity and uniformity since Hawaii law currently provides for unrestricted access and limited consideration of criminal convictions by employers?
(4) Should Hawaii employment practices law with respect to the use of criminal history record information also apply to licensing decisions? If there should be any differences, what should those differences be?
(5) Are there any guidelines to determine when a conviction is "rationally related" to the job? If so, what are they?
(6) When statutory authorization, or a BFOQ requirement, or both, allows consideration of arrest and court record:
(A) Is age of convictions that may be considered limited to convictions less than ten years old?
(B) Is there an age limit for arrests that may be considered?
(C) Are arrests required to be reasonably necessary to the operation of the business and substantially related to the job?
(D) Is a conditional offer of employment required before consideration of conviction data and/or nonconviction data is allowed?
(7) Does a criminal history record check that is authorized, but not required, by statute constitute a BFOQ exception that allows consideration of arrest and court record?
(8) Should Hawaii employment practices law be amended to expressly authorize consideration of both conviction and nonconviction data when an employer is statutorily authorized to conduct a criminal history record check of an individual's criminal history record information (which includes both conviction data and nonconviction data) to determine employment suitability? If so, what restrictions, if any, should be imposed on an employer's consideration of criminal history record information?
(9) Should section 378-3, Hawaii Revised Statutes, be amended to repeal paragraph (8) because it is unnecessary, duplicative, and potentially confusing?
Section 378-3, Hawaii Revised Statutes, establishes "Exceptions", stating that nothing in chapter 378, part I, Hawaii Revised Statutes, "Discriminatory Practices", shall be deemed to prohibit or prevent public or private schools from considering criminal convictions in determining suitability for employment in close proximity to children. Sections 846-43 and 846-44, Hawaii Revised Statutes, independently authorize public and private schools to conduct criminal history record checks for employment screening and section 378-2.5, Hawaii Revised Statutes, allows consideration of convictions. Other statutes that authorize other agencies to conduct employment criminal history record checks are not included as "exceptions" in section 378-3. To include some but not all, statutorily authorized criminal checks in section 378-3 appears to be both unnecessary and confusing.
(10) Although aggrieved civil service applicants may appeal to the civil service commission, the rights of a similarly aggrieved applicant for a state job that is not civil service are unclear. Should the civil rights commission investigate complaints (by persons other than those applying for state or county civil service jobs) related to the prohibitions in section 831-3.1, Hawaii Revised Statutes, on the State's use of certain criminal records in state employment decisions? If not the civil rights commission, then who?
(11) Similarly, what remedies are (or should be) available for license applicants who believe their license was denied or revoked based on the State's use of nonconviction or conviction data?
(12) Since the unlimited availability of Hawaii conviction data allows public access to convictions regardless of age, does this conflict with an employer's ability to consider only those rationally related convictions less than ten years old? If so, how should the conflict be reconciled?
(13) Should statutorily authorized criminal history record checks direct the data center to disseminate to government agencies only criminal history record information, including conviction and nonconviction data, that is less than ten years old, or to check only criminal history record information less than ten years old if the data center is "conducting" the criminal history record check for authorized requestors?
(14) Should Hawaii conviction data be made available to the public online, similar to the sex offender registry?
(15) Does the National Child Protection Act, as amended by the Volunteers for Children Act of 1998, authorize a qualified entity to request a national criminal history record check for both employment and licensing purposes, in the absence of an authorizing statute?
(16) Does the prohibition in 28 CFR section 20.21(b) continue to restrict states that received federal funding in connection with the collection, storage, dissemination of criminal history record information in the dissemination of state nonconviction data?
(17) Should criminal history record information be purged when it "no longer serves a public purpose"?
(18) Whether a conviction may be "annulled or expunged" and whether such an expunged conviction is removed from the conviction database should be clarified.
Section 831-3.1, Hawaii Revised Statutes, prohibits use, distribution, or dissemination of "annulled or expunged convictions" in state employment and licensing matters. Although the data center's website states that an arrest record may be expunged when the individual is not convicted and that the expunged arrest record is not available to the general public, this provides little guidance because arrest records where there was no subsequent conviction are never available to the general public, whether expunged or not.
(19) Consider repeal of section 831-3.1, Hawaii Revised Statutes, which restricts the State's use, distribution, and dissemination of certain criminal records in employment and licensing decisions to eliminate redundant, unnecessary, duplicative, or conflicting laws.
The State is subject to Hawaii law governing the dissemination and use of criminal history record information in employment decisions in the same manner as any other employer.
Clarification of the State's authority to access and use of criminal history record information for licensing purposes is recommended. Limitations identical to those limiting access and use in employment matters are suggested.
(20) If section 831-3.1, Hawaii Revised Statutes, is retained, clarification of "noncriminal standards such as good moral character, temperate habits, habitual intemperate use of intoxicants, trustworthiness, and the like" is recommended.
Various state departments are required to develop standards, which include criminal history record checks, to assure the "reputable and responsible character" of certain license or employment applicants. The mandatory use of criminal history record checks to assure "reputable and responsible character" in one statute and the prohibition against consideration of convictions when considering "good moral character" should be clarified and distinguished.
(21) Whether an exemption for fees provided by the data center for criminal history record checks is appropriate for any additional categories or circumstances, such as adult foster care homes.
(22) Whether the State should designate an additional state agency as an "authorized agency" through which a qualified entity may request a national criminal history record check under the National Child Protection Act.
(23) Should Hawaii dissemination law be amended to authorize the data center to redisseminate FBI records to a government agency requesting a national criminal history check as an "qualified entity" under the Act where the government agency lacks statutory authorization.
(d) The working group shall be fully designated and constituted by no later than thirty days after the effective date of this Act and shall convene on a regular basis. In conducting the review, the working group shall seek consensus and, where consensus is not possible, identify the competing viewpoints and goals with respect to the issue in question so that the legislature may be fully advised of the full range of policy choices presented.
(e) The working group shall submit a report of its findings and recommendations relating to access and use of criminal history record information to conduct criminal history record checks for noncriminal justice employment and licensing purposes to the legislature not less than twenty days before the convening of the regular session of 2003 which shall include proposed legislation and identification of resources necessary to support or enforce recommendations for new or amended law and policy.
(f) The department of the attorney general shall provide administrative support upon request from the working group.
(g) The legislative reference bureau shall provide technical assistance to the working group on legislative drafting and shall assist in drafting any legislation proposed by the working group.
(h) The working group shall cease to exist on June 30, 2003.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect upon its approval.