BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 1 0 5 SB 1055 (Ashburn) 5 As Introduced February 16, 2010 Hearing date: April 13, 2010 Government Code VOTE ONLY MK:dl STATE CHIEF INFORMATION OFFICER: FINGERPRINTS CRIMINAL HISTORY HISTORY Source: Office of the State Chief Information Officer Prior Legislation: None Support: Unknown Opposition:California Teamsters Public Affairs Council; California Conference of Machinists; International Longshore and Warehouse Union; UNITE-HERE; California Conference Board of the Amalgamated Transit Union; United Food and Commercial Workers Western States Council; Professional and Technical Engineers, Local 21, IFPTE, AFL-CIO; Engineers & Scientists of California, Local 20, IFPTE, AFL-CIO; Legal Services for Prisoners with Children; American Civil Liberties Union (More) SB 1055 (Ashburn) PageB KEY ISSUE SHOULD THE STATE CHIEF INFORMATION OFFICER BE PERMITTED TO REQUIRE CRIMINAL BACKGROUND CHECKS OF AN EMPLOYEE, PROSPECTIVE EMPLOYEE, CONTRACTOR, SUBCONTRACTOR, VOLUNTEER OR VENDOR WHOSE DUTIES INCLUDE ACCESS TO CONFIDENTIAL OR SENSITIVE INFORMATION? PURPOSE The purpose of this bill is to provide for criminal background checks by the State Chief Information Officer for employees, contractors, volunteers and vendors. 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 law provides that the Attorney General shall maintain summary criminal history information and shall furnish the information regarding an employee or applicant including specified organizations to whom the Attorney General shall supply information regarding every conviction rendered against the applicant as well as every arrest for which the applicant is presently awaiting trial. (Penal Code 11105(p)) Existing law provides that there is in state government the office of the State Chief Information Officer. The State Chief Information Officer shall be appointed by, and serve at the pleasure of, the Governor, subject to Senate confirmation. The State Chief Information Officer shall be a member of the Governor's cabinet. (Government Code 11545) (More) SB 1055 (Ashburn) PageC This bill provides that the State Chief Information Officer may require fingerprint images and associated information from an employee, prospective employee, contractor, subcontractor, volunteer, or vendor whose duties include, or would include, access to confidential or sensitive information. This bill provides that the fingerprint images and associated information may be furnished to the Department of Justice for the purposes of obtaining information as to the existence and nature of a record of state or federal convictions and the existence and nature of state or federal arrests for which the person is free on bail or on his own recognizance pending trial or appeal. Requests for federal criminal offender record information received by the Department of Justice pursuant to this section shall be forwarded to the Federal Bureau of Investigation by the Department of Justice. This bill provides that the Department of Justice may charge a fee and shall respond to the State Chief Information Officer with information as provided under Penal Code Section 1105(p). RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, (More) SB 1055 (Ashburn) PageD "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house, . . . (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's residents, . . . . California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The (More) SB 1055 (Ashburn) PageE state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010 ruling pending the state's appeal of the decision to the U.S. Supreme Court. That appeal, and the final outcome of this litigation, is not anticipated until later this year or 2011. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS (More) --------------------------- <1> Three Judge Court Opinion and Order, 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 (August 4, 2009). 1. Need for This Bill According to the author: The Office of the State Chief Information Officer (OCIO) is engaged in an IT infrastructure consolidation effort that will achieve ongoing GF savings, increase the reliability of the state's IT infrastructure, and bolster the security of confidential information. This initiative adheres to the principles found within the Legislature approved GRP 1 (2009) and the Governor's Executive Order S-03-10. This initiative cannot be completed without the ability to consolidate various state agencies' IT infrastructure within the state's data center. To date, the data center maintenance and operations is completed with non-background checked personnel. Without the statutory authority to ensure current and future employees adhere to a required level of background check verification, the OCIO will be unable to consolidate departments such as CDCR, HHSA, the CA State Lottery, FTB, DMV or any other agency that is bound by federal or state background check regulations. This legislation seeks to provide this authority for those positions that would have access to confidential information, approximately 400 employees out of 1300 OCIO wide. 2. The Office of the State Chief Information Officer According to the website for the Office of the State Chief Information Officer: The Office of the State Chief Information Officer (OCIO) - The OCIO is a cabinet-level agency, responsible for establishing and enforcing information technology (IT) strategic plans, policies, standards and enterprise architecture, and the IT project review, approval, and (More) SB 1055 (Ashburn) PageG oversight program. The Office of Information Security (OIS) - The OIS is an Office within the OCIO and is responsible for the promotion and protection of consumer privacy, and the creation, issuance, and maintenance of information security and privacy policies, standards, and procedures directing state agencies to effectively manage security and risk, as defined in Section 11549.3 of the Government Code. 3. Background Check for Employees and Contractors of the Office of the State Chief Information Officer This bill provides that the State Chief Information Officer may require an employee, prospective employee, contractor, subcontractor, volunteer or vendor whose duties include access to confidential or sensitive information. The background check information received by the Office of the State Chief Information Officer from the Department of Justice would include every conviction and every arrest for which the applicant is awaiting trial. The bill does not expressly prohibit the hiring of a person or contractor convicted of a crime. 4. Appropriate Level of Background Check Under existing law, over a period of many years, the Legislature has created different categories of what criminal background check information can be released based on the employment, licensing or volunteer position the person is applying for. The question for the Committee is whether the level of background check in this bill is appropriate for the employees and contractors of the Office of the State Chief Information Officer. The persons contemplated to be required to get background checks under this bill would have access to confidential or sensitive information. The question is whether this type of position SB 1055 (Ashburn) PageH requires that an employer know the person had an old conviction for something like a DUI, or whether these positions are more analogous to financial institution positions where background checks include a narrower list of offenses related to financial crimes. When an employee of a bank or similar institution has a criminal background check, the convictions that are returned to the employer are the commission or attempted commission of a crime involving robbery, burglary, theft, embezzlement, fraud, forgery, bookmaking, receiving stolen property, counterfeiting, or involving checks or credit cards or using computers. (Penal Code 11105(o) and Financial Code 550) The opposition to this bill is concerned about the increasing number of fingerprints that the State of California will collect under this bill, and the privacy rights that this infringes. Perhaps a narrower release of information tailored more closely to the requirements of the job would help alleviate some of their concerns, assuming it can still comply with the goals of the stated need for this legislation. WHAT IS THE APPROPRIATE LEVEL OF BACKGROUND CHECK FOR AN EMPLOYEE OR CONTRACTOR OF THE STATE CHIEF INFORMATION OFFICER? ***************