BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 447 (Yee)                                                
          As Introduced February 26, 2009
          Hearing date:  April 14, 2009
          Penal Code
          MK:mc


                              CRIMINAL RECORDS: CUSTODIAN  

                                       HISTORY

          Source:  Attorney General/Department of Justice

          Prior Legislation: None

          Support: Los Angeles District Attorney; California Peace  
          Officers' Association; California                      Police  
          Chiefs Association; American Federation of State, County and  
          Municipal      Employees (AFSCME), AFL-CIO             

          Opposition:None known



                                         KEY ISSUE
           
          SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO ESTABLISH, IMPLEMENT  
          AND MAINTAIN A CONFIRMATION PROGRAM TO PROCESS FINGERPRINT-BASED  
          CRIMINAL RECORD BACKGROUND CLEARANCES ON INDIVIDUALS DESIGNATED BY  
          AN AGENCY AS THE CUSTODIAN OF RECORDS?







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                                                               SB 447 (Yee)
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                                       PURPOSE

          The purpose of this bill is to require the Department of Justice  
          to create a process for obtaining background clearances on  
          custodian of records for agencies whose employees or volunteers  
          must have a criminal background check.
          
           Existing law  provides that criminal offender record information  
          shall be disseminated, whether directly or through an  
          intermediary, only to such agencies as are, or may subsequently  
          be, authorized access to such record by statute.  (Penal Code   
          11076.)

          Existing law  provides that the Attorney General is responsible  
          for the security of criminal offender record information.   
          (Penal Code  11077.)

           Existing regulations  provides record checks shall be conducted  
          on all personnel hired after July 1, 1975, who have access to  
          criminal offender record information.  (California Code of  
          Regulations (CCR), Title 11, Division 1, Chapter 7, Article 1,  
          section 703 (d).)

           Existing law  provides that the Department of Justice (DOJ) shall  
          maintain summary criminal history information and shall furnish  
          the information to specified persons.  (Penal Code  11105.)

           This bill  provides that commencing January 1, 2011, DOJ shall  
          establish, implement and maintain a confirmation program to  
          process fingerprint-based criminal record background clearances  
          on individuals designated by agencies as custodians of records. 

           This bill  provides that commencing July 1, 2011, no person shall  
          serve as an agency custodian of records unless confirmed by DOJ,  
          unless they are criminal justice agency personnel who have  
          undergone a state and federal background check.

           This bill  provides that DOJ shall charge a fee of $30 to cover  
          the costs of the confirmation program in addition to a fee  
          sufficient to cover the cost of processing the appropriate state  




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          and federal level criminal record background check.

           This bill  provides that each agency must designate at least one  
          custodian of records and submit to DOJ his or her fingerprints  
          for a state and federal background check.  Subsequent arrest  
          notification shall be given for the designated custodian.

           This bill  provides that every individual confirmed as a  
          custodian of records shall be at least 18 years of age and been  
          determined by DOJ to possess the required honesty, credibility,  
          truthfulness and integrity to fulfill the responsibilities of  
          the position.

           This bill  provides that DOJ shall not confirm as custodian of  
          records any individual who has been convicted of a felony  
          offense or any other offense that involves moral turpitude,  
          dishonesty, or fraud, or that the applicant's ability to perform  
          the duties or responsibilities of a custodian of records.  The  
          confirmation shall be revoked if, at any time, the individual is  
          convicted of either a felony offense, or any other offense that  
          involves moral turpitude, dishonesty, or fraud, or that the  
          applicant's ability to perform the duties or responsibilities of  
          a custodian of records.

           This bill  provides that the DOJ may also refuse to confirm or  
          revoke or suspend the confirmation of a person as a custodian of  
          records if the individual has done any of the following:
                 Made a substantial and material misstatement or omission  
               in the application to the DOJ.
                 Been convicted of an offense of a nature incompatible  
               with the duties of a custodian of records.
                 Failed to discharge fully and faithfully any of the  
               duties or responsibilities required of a custodian of  
               records.
                 Been adjudged liable for damages in any suit grounded in  
               fraud, misrepresentation, or in violation of the state  
               regulatory laws, or in any suit based upon a failure to  
               discharge fully and faithfully the duties of a custodian of  
               records.
                 Committed any act involving dishonesty, fraud, or  




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               deceit.
                 Failed to submit any remittance payable upon demand by  
               DOJ under this section of railed to satisfy any court  
               ordered money judgment, including restitution.

           This bill  provides that that the agency shall immediately notify  
          the DOJ when the designated custodian of records no longer  
          serves in that capacity.  By March 1, 2012, and by March 1 each  
          year thereafter, the agency shall notify DOJ, using a form  
          provided by DOJ, of the individuals currently serving in the  
          capacity of custodian of records.

           This bill  defines "custodian of records" as an individual  
          designated by an agency as responsible for the security,  
          storage, dissemination, and destruction of the criminal records  
          furnished to the agency and who serves as the primary contact  
          for DOJ for any related issues.

           This bill  defines "agency" as any public or private entity that  
          receives criminal history information from the DOJ.
                                           
          
              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  











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          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.



                                      COMMENTS
                             ---------------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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          1.    Need for This Bill  










































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          According to the sponsor:

              Agencies that apply to the Department of Justice (DOJ)  
              for access to state summary criminal offender record  
              information (CORI) are required by the DOJ to designate  
              a person to function as the "Custodian of Records."  The  
              Custodian of Records is responsible to ensure compliance  
              with statutory and regulatory requirements regarding the  
              security, storage, dissemination, and destruction of the  
              criminal records furnished to the agency.  The Custodian  
              of Records also serves as the primary contact for DOJ  
              for any criminal record related issues.

              The laws requiring fingerprint-based CORI searches have  
              long been based on the premise that persons with certain  
              convictions shall not be placed in specified positions  
              of trust.  Currently, the CORI response to determine the  
              eligibility of the agency's Custodian of Records  
              position is being returned to the Custodian of Records  
              applicant.  Potentially, an applicant for a Custodian of  
              Records position could be convicted of a violent crime  
              or crimes against children and approve him or herself  
              for the Custodian of Records position, while others in  
              the agency are unaware of the applicant's criminal  
              history.  The Custodian of Records would be able to  
              access the COR for other individuals applying to serve  
              in positions of trust within the organization.  In this  
              example, the Custodian of Records is a benefactor of an  
              undeserved public trust, and those impacted may be the  
              children served by the agency.

          2.    Confirmation Process for Custodian of Records  

          Under existing law, if specified employees of a public or  
          private entity must obtain a criminal background check through  
          the Department of Justice, those records are sent to the  
          designated custodian of records at that entity.  The law does  
          not provide, however, for a process to make sure that the  
          custodian of records is an appropriate person to have access to  




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          such sensitive criminal history information and to be  
          responsible for its storage, dissemination and destruction. 

          This bill requires DOJ to establish, implement, and maintain a  
          confirmation program for the custodian of records of entities  
          that require DOJ background checks.  The custodian of records  
          will have to have a federal and state background check.  The  
          person will not be confirmed as the custodian of records, or  
          will have his or her confirmation revoked, if he or she has been  
          convicted of a felony or any other offense that involves moral  
          turpitude, dishonesty, or fraud, or that impacts the applicant's  
          ability to do the job of custodian of records.  The person may  
          also not be confirmed, or have his or her confirmation revoked  
          if he or she made a substantial and material omission in the  
          application, has been convicted of an offense that is not  
          compatible with his or her duties, failed to fully discharge his  
          or her duties as custodian of records, been adjudged liable for  
          damages in any suit grounded in fraud, misrepresentation, etc.,  
          or in violation of any state regulatory laws or a suit based on  
          a failure to discharge his or her duties as custodian of  
          records, committed any act involving dishonesty, fraud, etc.,  
          failed to submit any remittance payable upon demand by the DOJ  
          or any court ordered money judgment.

          The bill provides for a process where the entity, starting in  
          March of 2012, shall notify the DOJ yearly of whom the custodian  
          of records will be and also notify DOJ when a person ceases to  
          be the custodian of records. 

          SHOULD A PROCESS BE CREATED FOR THE CONFIRMATION OF CUSTODIAN OF  
          RECORDS FOR AGENCIES THAT RECEIVE CRIMINAL HISTORY INFORMATION  
          FROM THE DEPARTMENT OF JUSTICE?

          3.    Technical Amendments
           
          A few technical amendment need to be made to this bill:

                 The bill adds its provisions to the wrong code section  
               and should read Penal Code Section "11102.2" not "1102.2".
                 Page 3, lines 10-11, the word "impacts" should be  












                                                               SB 447 (Yee)
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               asserted between "that" and "the."
                 Page 3, line 33, the word "of" should be deleted.


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