BILL NUMBER: AB 2343 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 13, 2012
AMENDED IN ASSEMBLY MARCH 28, 2012
INTRODUCED BY Assembly Member Torres
FEBRUARY 24, 2012
An act to amend Sections 11105 and 11105.2 of the Penal Code,
relating to criminal history information.
LEGISLATIVE COUNSEL'S DIGEST
AB 2343, as amended, Torres. Criminal history information.
(1) Existing law requires the Department of Justice to maintain
state summary criminal history information, including the
identification and criminal history of any person, such as his or her
name, date of birth, physical description, fingerprints,
photographs, date of arrests, dates of
arrest, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person. Existing law
requires the department to furnish this information in response to a
request from certain authorized agencies, organizations, or
individuals that need the information to fulfill employment,
certification, or licensing duties, such as the employment of peace
officers or the licensing of community care facilities.
This bill would clarify that certain of those provisions refer to
state summary criminal history information that is initially
furnished to those authorized agencies, organizations, or
individuals, for those purposes. The bill would also require that
, when state or federal summary criminal history
information is furnished pursuant to those provisions, the authorized
agency, organization, or individual shall furnish a copy of the
information to the person to whom the information relates if the
information is a basis for an adverse employment, licensing, or
certification decision.
(2) Existing law authorizes the department to provide subsequent
arrest notification to the entities described above upon the arrest
of any person whose fingerprints are maintained on file at the
department as the result of an application for licensing, employment,
certification, or approval. Existing law requires the notification
to consist of a current copy of the person's state summary criminal
history transcript.
This bill would expand the scope of the information that may be
provided to include subsequent state and federal arrest or
disposition notification to any entity authorized to receive the
information under state or federal statutory law, upon the arrest or
other disposition of any person whose fingerprints are maintained on
file at the department or the Federal Bureau of Investigation as the
result of an application for licensing, employment, certification, or
approval, except as specified. The bill would require, when the
department supplies the subsequent arrest or disposition notification
to a receiving entity, the entity to expeditiously furnish a copy of
the information to the person to whom it relates if the information
is a basis for an adverse employment, licensing, or certification
decision. The bill would also include related findings and
declarations.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that this act is not
intended to and does not overrule the decisions, orders, or
judgments in Central Valley Ch. 7th Step Foundation,
Inc. v. Younger (1989) 214 Cal.App.3d 145, or the related case
of Gresher v. Deukmejian (Alameda Superior Court No. 524298-6),
including the verification provisions of the judgments in those
cases. In addition, nothing in this act shall be construed as an
implied amendment of subdivision (a) of Section 432.7 of the Labor
Code or that would lessen the protections provided by that section.
SEC. 2. Section 11105 of the Penal Code is
amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs, date
of arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state, as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivisions (a) and (b) of Section 830.5, and subdivision
(a) of Section 830.31.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) City attorneys pursuing civil gang injunctions pursuant to
Section 186.22a, or drug abatement actions pursuant to Section 3479
or 3480 of the Civil Code, or Section 11571 of the Health and Safety
Code.
(6) Probation officers of the state.
(7) Parole officers of the state.
(8) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(9) A public defender or attorney of record when representing a
person in a criminal case, or parole revocation or revocation
extension proceeding, and if authorized access by statutory or
decisional law.
(10) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly based
upon that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to receive state
summary criminal history information may also transmit fingerprint
images and related information to the Department of Justice to be
transmitted to the Federal Bureau of Investigation.
(11) Any city or county, city and county, district, or any officer
or official thereof if access is needed in order to assist that
agency, officer, or official in fulfilling employment, certification,
or licensing duties, and if the access is specifically authorized by
the city council, board of supervisors, or governing board of the
city, county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation that
expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct. The city or county, city and county,
district, or the officer or official thereof authorized by this
paragraph may also transmit fingerprint images and related
information to the Department of Justice to be transmitted to the
Federal Bureau of Investigation.
(12) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120).
(13) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(14) Health officers of a city, county, city and county, or
district when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(15) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(16) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of humane officers.
(17) Local child support agencies established by Section 17304 of
the Family Code. When a local child support agency closes a support
enforcement case containing summary criminal history information, the
agency shall delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or of which
the parent has been arrested, charged, or convicted, other than for
offenses related to the parent's having failed to provide support for
minor children, consistent with the requirements of Section 17531 of
the Family Code.
(18) County child welfare agency personnel who have been delegated
the authority of county probation officers to access state summary
criminal history information pursuant to Section 272 of the Welfare
and Institutions Code for the purposes specified in Section 16504.5
of the Welfare and Institutions Code. Information from criminal
history records provided pursuant to this subdivision shall not be
used for any purposes other than those specified in this section and
Section 16504.5 of the Welfare and Institutions Code. When an agency
obtains records obtained both on the basis of name checks and
fingerprint checks, final placement decisions shall be based only on
the records obtained pursuant to the fingerprint check.
(19) The court of a tribe, or court of a consortium of tribes,
that has entered into an agreement with the state pursuant to Section
10553.1 of the Welfare and Institutions Code. This information may
be used only for the purposes specified in Section 16504.5 of the
Welfare and Institutions Code and for tribal approval or tribal
licensing of foster care or adoptive homes. Article 6 (commencing
with Section 11140) shall apply to officers, members, and employees
of a tribal court receiving criminal record offender information
pursuant to this section.
(20) Child welfare agency personnel of a tribe or consortium of
tribes that has entered into an agreement with the state pursuant to
Section 10553.1 of the Welfare and Institutions Code and to whom the
state has delegated duties under paragraph (2) of subdivision (a) of
Section 272 of the Welfare and Institutions Code. The purposes for
use of the information shall be for the purposes specified in Section
16504.5 of the Welfare and Institutions Code and for tribal approval
or tribal licensing of foster care or adoptive homes. When an agency
obtains records on the basis of name checks and fingerprint checks,
final placement decisions shall be based only on the records obtained
pursuant to the fingerprint check. Article 6 (commencing with
Section 11140) shall apply to child welfare agency personnel
receiving criminal record offender information pursuant to this
section.
(21) An officer providing conservatorship investigations pursuant
to Sections 5351, 5354, and 5356 of the Welfare and Institutions
Code.
(22) A court investigator providing investigations or reviews in
conservatorships pursuant to Section 1826, 1850, 1851, or 2250.6 of
the Probate Code.
(23) A person authorized to conduct a guardianship investigation
pursuant to Section 1513 of the Probate Code.
(24) A humane officer pursuant to Section 14502 of the
Corporations Code for the purposes of performing his or her duties.
(c) The Attorney General may furnish state summary criminal
history information and, when specifically authorized by this
subdivision, federal level criminal history information upon a
showing of a compelling need to any of the following, provided that
when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing duties,
Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor
Code shall apply:
(1) Any public utility, as defined in Section 216 of the Public
Utilities Code, that operates a nuclear energy facility when access
is needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To an illegal dumping enforcement officer as defined in
subdivision (j) of Section 830.7.
(4) To a peace officer of another country.
(5) To public officers, other than peace officers, of the United
States, other 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 territories of the
United States if the information is needed for the performance of
their official duties.
(6) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(7) The courts of the United States, other states, or territories
or possessions of the United States.
(8) Peace officers of the United States, other states, or
territories or possessions of the United States.
(9) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(10) (A) (i) Any public utility, as defined in Section 216 of the
Public Utilities Code, or any cable corporation as defined in
subparagraph (B), if receipt of criminal history information is
needed in order to assist in employing current or prospective
employees, contract employees, or subcontract employees who, in the
course of their employment may be seeking entrance to private
residences or adjacent grounds. The information provided shall be
limited to the record of convictions and any arrest for which the
person is released on bail or on his or her own recognizance pending
trial.
(ii) If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
(iii) Any information obtained from the state summary criminal
history is confidential and the receiving public utility or cable
corporation shall not disclose its contents, other than for the
purpose for which it was acquired. The state summary criminal history
information in the possession of the public utility or cable
corporation and all copies made from it shall be destroyed not more
than 30 days after employment or promotion or transfer is denied or
granted, except for those cases where a current 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
and all copies shall be destroyed not more than 30 days after the
case is resolved.
(iv) A violation of this paragraph is a misdemeanor, and shall
give the current or prospective employee who is injured by the
violation a cause of action against the public utility or cable
corporation to recover damages proximately caused by the violations.
Any public utility's or cable corporation's request for state summary
criminal history information for purposes of employing current or
prospective employees who may be seeking entrance to private
residences or adjacent grounds in the course of their employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
(v) Nothing in this section shall be construed as imposing any
duty upon public utilities or cable corporations to request state
summary criminal history information on any current or prospective
employees.
(B) For purposes of this paragraph, "cable corporation" means any
corporation or firm that transmits or provides television, computer,
or telephone services by cable, digital, fiber optic, satellite, or
comparable technology to subscribers for a fee.
(C) Requests for federal level criminal history information
received by the Department of Justice from entities authorized
pursuant to subparagraph (A) shall be forwarded to the Federal Bureau
of Investigation by the Department of Justice. Federal level
criminal history information received or compiled by the Department
of Justice may then be disseminated to the entities referenced in
subparagraph (A), as authorized by law.
(D) (i) Authority for a cable corporation to request state or
federal level criminal history information under this paragraph shall
commence July 1, 2005.
(ii) Authority for a public utility to request federal level
criminal history information under this paragraph shall commence July
1, 2005.
(11) To any campus of the California State University or the
University of California, or any four year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to any special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may require
the convicted felon to be fingerprinted, and any inquiry to the
department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(12) To any foreign government, if requested by the individual who
is the subject of the record requested, if needed in conjunction
with the individual's application to adopt a minor child who is a
citizen of that foreign nation. Requests for information pursuant to
this paragraph shall be in accordance with the process described in
Sections 11122 to 11124, inclusive. The response shall be provided to
the foreign government or its designee and to the individual who
requested the information.
(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped "no criminal record" and returned to the person or entity
making the request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, any person or entity required to pay a
fee to 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 moneys received by the department
pursuant to this section, Sections 11105.3 and 26190 of the Penal
Code, and Section 13588 of the Education Code shall be deposited in a
special account in the General Fund to be available for expenditure
by the department to offset costs incurred pursuant to those sections
and for maintenance and improvements to the systems from which the
information is obtained upon appropriation by the Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the
Business and Professions Code shall take priority over the processing
of other applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding 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 offense specified in Section 290.
(k) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and the information is to be used for peace officer
employment or certification purposes. As used in this subdivision, a
peace officer is defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest or detention, except for an arrest or detention
resulting in an exoneration, provided however that where the records
of the Department of Justice do not contain a disposition for the
arrest, the Department of Justice first makes a genuine effort to
determine the disposition of the arrest.
(D) Every successful diversion.
(E) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by a criminal justice
agency or organization as defined in Section 13101 of the Penal Code,
and the information is to be used for criminal justice employment,
licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition or did not result
in a conviction, provided that the Department of Justice first makes
a genuine effort to determine the disposition of the arrest. However,
information concerning an arrest shall not be disclosed if the
records of the Department of Justice indicate or if the genuine
effort reveals that the subject was exonerated, successfully
completed a diversion or deferred entry of judgment program, or the
arrest was deemed a detention.
(D) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 1522, 1568.09, 1569.17, or 1596.871
of the Health and Safety Code, or any statute that incorporates the
criteria of any of those sections or this subdivision by reference,
and the information is to be used for employment, licensing, or
certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction of an offense rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the Department of Social
Services is required by paragraph (1) of subdivision (a) of Section
1522 of the Health and Safety Code to determine if an applicant has
been arrested. However, if the records of the Department of Justice
do not contain a disposition for an arrest, the Department of Justice
shall first make a genuine effort to determine the disposition of
the arrest.
(3) Notwithstanding the requirements of the sections referenced in
paragraph (1) of this subdivision, the Department of Justice shall
not disseminate information about
an arrest subsequently deemed a detention or an arrest that
resulted in either the successful completion of a diversion program
or exoneration.
(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information, to be used for employment,
licensing, or certification purposes, is furnished by the Department
of Justice as the result of an application by an authorized agency,
organization, or individual pursuant to any of the following:
(A) Paragraph (9) of subdivision (c), when the information is to
be used by a cable corporation.
(B) Section 11105.3 or 11105.4.
(C) Section 15660 of the Welfare and Institutions Code.
(D) Any statute that incorporates the criteria of any of the
statutory provisions listed in subparagraph (A), (B), or (C), or of
this subdivision, by reference.
(2) With the exception of applications submitted by transportation
companies authorized pursuant to Section 11105.3, and
notwithstanding any other provision of law, whenever state summary
criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department of
Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the agency's request for information or the conviction is
over 10 years old but the subject of the request was incarcerated
within 10 years of the agency's request for information.
(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.
(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 261 or 550 of the Financial Code,
or any statute that incorporates the criteria of either of those
sections or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
550 of the Financial Code.
(B) Every arrest for a violation or attempted violation of an
offense specified in Section 550 of the Financial Code for which the
applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.
(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o),
or by a transportation company authorized pursuant to Section
11105.3, or any statute that incorporates the criteria of that
section or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provisions of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent notification pursuant to Section
11105.2. This subdivision shall not supersede sections that mandate
an agency, organization, or individual to contract with the
Department of Justice for subsequent notification pursuant to Section
11105.2.
(r) Nothing in this section shall be construed to mean that the
Department of Justice shall cease compliance with any other statutory
notification requirements.
(s) The provisions of Section 50.12 of Title 28 of the Code of
Federal Regulations are to be followed in processing federal criminal
history information.
(t) Whenever state or federal summary criminal history information
is furnished by the Department of Justice as the result of an
application by an authorized agency, organization, or individual
defined in subdivisions (k) to (p), inclusive, and the information is
to be used for employment, licensing, or certification purposes, the
authorized agency, organization, or individual shall expeditiously
furnish a copy of the information to the person to whom the
information relates if the information is a basis for an adverse
employment, licensing, or certification decision.
SEC. 2. Section 11105 of the Penal Code
is amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs,
date dates of arrests, arresting
agencies and booking numbers, charges, dispositions, and similar data
about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state, as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivisions (a) and (b) of Section 830.5, and subdivision
(a) of Section 830.31.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) City attorneys pursuing civil gang injunctions pursuant to
Section 186.22a, or drug abatement actions pursuant to Section 3479
or 3480 of the Civil Code, or Section 11571 of the Health and Safety
Code.
(6) Probation officers of the state.
(7) Parole officers of the state.
(8) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(9) A public defender or attorney of record when representing a
person in a criminal case, or a parole, mandatory supervision
pursuant to paragraph (5) of subdivision (h) of Section 1170, or
postrelease community supervision revocation or revocation extension
proceeding, and if authorized access by statutory or decisional law.
(10) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly based
upon that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to receive state
summary criminal history information may also transmit fingerprint
images and related information to the Department of Justice to be
transmitted to the Federal Bureau of Investigation.
(11) Any city or county, city and county, district, or any officer
or official thereof if access is needed in order to assist that
agency, officer, or official in fulfilling employment, certification,
or licensing duties, and if the access is specifically authorized by
the city council, board of supervisors, or governing board of the
city, county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation that
expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct. The city or county, city and county,
district, or the officer or official thereof authorized by this
paragraph may also transmit fingerprint images and related
information to the Department of Justice to be transmitted to the
Federal Bureau of Investigation.
(12) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120).
(13) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(14) Health officers of a city, county, city and county, or
district when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(15) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(16) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of humane officers.
(17) Local child support agencies established by Section 17304 of
the Family Code. When a local child support agency closes a support
enforcement case containing summary criminal history information, the
agency shall delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or of which
the parent has been arrested, charged, or convicted, other than for
offenses related to the parent's having failed to provide support for
minor children, consistent with the requirements of Section 17531 of
the Family Code.
(18) County child welfare agency personnel who have been delegated
the authority of county probation officers to access state summary
criminal history information pursuant to Section 272 of the Welfare
and Institutions Code for the purposes specified in Section 16504.5
of the Welfare and Institutions Code. Information from criminal
history records provided pursuant to this subdivision shall not be
used for any purposes other than those specified in this section and
Section 16504.5 of the Welfare and Institutions Code. When an agency
obtains records obtained both on the basis of name checks and
fingerprint checks, final placement decisions shall be based only on
the records obtained pursuant to the fingerprint check.
(19) The court of a tribe, or court of a consortium of tribes,
that has entered into an agreement with the state pursuant to Section
10553.1 of the Welfare and Institutions Code. This information may
be used only for the purposes specified in Section 16504.5 of the
Welfare and Institutions Code and for tribal approval or tribal
licensing of foster care or adoptive homes. Article 6 (commencing
with Section 11140) shall apply to officers, members, and employees
of a tribal court receiving criminal record offender information
pursuant to this section.
(20) Child welfare agency personnel of a tribe or consortium of
tribes that has entered into an agreement with the state pursuant to
Section 10553.1 of the Welfare and Institutions Code and to whom the
state has delegated duties under paragraph (2) of subdivision (a) of
Section 272 of the Welfare and Institutions Code. The purposes for
use of the information shall be for the purposes specified in Section
16504.5 of the Welfare and Institutions Code and for tribal approval
or tribal licensing of foster care or adoptive homes. When an agency
obtains records on the basis of name checks and fingerprint checks,
final placement decisions shall be based only on the records obtained
pursuant to the fingerprint check. Article 6 (commencing with
Section 11140) shall apply to child welfare agency personnel
receiving criminal record offender information pursuant to this
section.
(21) An officer providing conservatorship investigations pursuant
to Sections 5351, 5354, and 5356 of the Welfare and Institutions
Code.
(22) A court investigator providing investigations or reviews in
conservatorships pursuant to Section 1826, 1850, 1851, or 2250.6 of
the Probate Code.
(23) A person authorized to conduct a guardianship investigation
pursuant to Section 1513 of the Probate Code.
(24) A humane officer pursuant to Section 14502 of the
Corporations Code for the purposes of performing his or her duties.
(c) The Attorney General may furnish state summary criminal
history information and, when specifically authorized by this
subdivision, federal level criminal history information upon a
showing of a compelling need to any of the following, provided that
when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing duties,
Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor
Code shall apply:
(1) Any public utility, as defined in Section 216 of the Public
Utilities Code, that operates a nuclear energy facility when access
is needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To an illegal dumping enforcement officer as defined in
subdivision (j) of Section 830.7.
(4) To a peace officer of another country.
(5) To public officers, other than peace officers, of the United
States, other 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 territories of the
United States if the information is needed for the performance of
their official duties.
(6) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(7) The courts of the United States, other states, or territories
or possessions of the United States.
(8) Peace officers of the United States, other states, or
territories or possessions of the United States.
(9) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(10) (A) (i) Any public utility, as defined in Section 216 of the
Public Utilities Code, or any cable corporation as defined in
subparagraph (B), if receipt of criminal history information is
needed in order to assist in employing current or prospective
employees, contract employees, or subcontract employees who, in the
course of their employment may be seeking entrance to private
residences or adjacent grounds. The information provided shall be
limited to the record of convictions and any arrest for which the
person is released on bail or on his or her own recognizance pending
trial.
(ii) If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
(iii) Any information obtained from the state summary criminal
history is confidential and the receiving public utility or cable
corporation shall not disclose its contents, other than for the
purpose for which it was acquired. The state summary criminal history
information in the possession of the public utility or cable
corporation and all copies made from it shall be destroyed not more
than 30 days after employment or promotion or transfer is denied or
granted, except for those cases where a current 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
and all copies shall be destroyed not more than 30 days after the
case is resolved.
(iv) A violation of this paragraph is a misdemeanor, and shall
give the current or prospective employee who is injured by the
violation a cause of action against the public utility or cable
corporation to recover damages proximately caused by the violations.
Any public utility's or cable corporation's request for state summary
criminal history information for purposes of employing current or
prospective employees who may be seeking entrance to private
residences or adjacent grounds in the course of their employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
(v) Nothing in this section shall be construed as imposing any
duty upon public utilities or cable corporations to request state
summary criminal history information on any current or prospective
employees.
(B) For purposes of this paragraph, "cable corporation" means any
corporation or firm that transmits or provides television, computer,
or telephone services by cable, digital, fiber optic, satellite, or
comparable technology to subscribers for a fee.
(C) Requests for federal level criminal history information
received by the Department of Justice from entities authorized
pursuant to subparagraph (A) shall be forwarded to the Federal Bureau
of Investigation by the Department of Justice. Federal level
criminal history information received or compiled by the Department
of Justice may then be disseminated to the entities referenced in
subparagraph (A), as authorized by law.
(D) (i) Authority for a cable corporation to request state or
federal level criminal history information under this paragraph shall
commence July 1, 2005.
(ii) Authority for a public utility to request federal level
criminal history information under this paragraph shall commence July
1, 2005.
(11) To any campus of the California State University or the
University of California, or any four year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to any special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may require
the convicted felon to be fingerprinted, and any inquiry to the
department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(12) To any foreign government, if requested by the individual who
is the subject of the record requested, if needed in conjunction
with the individual's application to adopt a minor child who is a
citizen of that foreign nation. Requests for information pursuant to
this paragraph shall be in accordance with the process described in
Sections 11122 to 11124, inclusive. The response shall be provided to
the foreign government or its designee and to the individual who
requested the information.
(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped "no criminal record" and returned to the person or entity
making the request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, any person or entity required to pay a
fee to 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 moneys received by the department
pursuant to this section, Sections 11105.3 and 26190, and former
Section 13588 of the Education Code shall be deposited in a special
account in the General Fund to be available for expenditure by the
department to offset costs incurred pursuant to those sections and
for maintenance and improvements to the systems from which the
information is obtained upon appropriation by the Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the
Business and Professions Code shall take priority over the processing
of other applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding 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 offense specified in Section 290.
(k) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and the information is to be used for peace officer
employment or certification purposes. As used in this subdivision, a
peace officer is defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially
furnished pursuant to paragraph (1), the Department of Justice shall
disseminate the following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest or detention, except for an arrest or detention
resulting in an exoneration, provided however that where the records
of the Department of Justice do not contain a disposition for the
arrest, the Department of Justice first makes a genuine effort to
determine the disposition of the arrest.
(D) Every successful diversion.
(E) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by a criminal justice
agency or organization as defined in Section 13101, and the
information is to be used for criminal justice employment, licensing,
or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished
pursuant to paragraph (1), the Department of Justice shall
disseminate the following information:
(A) Every conviction rendered against the applicant.
(B)
Every arrest for an offense for which the applicant is presently
awaiting trial, whether the applicant is incarcerated or has been
released on bail or on his or her own recognizance pending trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition or did not result
in a conviction, provided that the Department of Justice first makes
a genuine effort to determine the disposition of the arrest. However,
information concerning an arrest shall not be disclosed if the
records of the Department of Justice indicate or if the genuine
effort reveals that the subject was exonerated, successfully
completed a diversion or deferred entry of judgment program, or the
arrest was deemed a detention.
(D) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 1522, 1568.09, 1569.17, or 1596.871
of the Health and Safety Code, or any statute that incorporates the
criteria of any of those sections or this subdivision by reference,
and the information is to be used for employment, licensing, or
certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially
furnished pursuant to paragraph (1), the Department of Justice shall
disseminate the following information:
(A) Every conviction of an offense rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the Department of Social
Services is required by paragraph (1) of subdivision (a) of Section
1522 of the Health and Safety Code to determine if an applicant has
been arrested. However, if the records of the Department of Justice
do not contain a disposition for an arrest, the Department of Justice
shall first make a genuine effort to determine the disposition of
the arrest.
(3) Notwithstanding the requirements of the sections referenced in
paragraph (1) of this subdivision, the Department of Justice shall
not disseminate information about an arrest subsequently deemed a
detention or an arrest that resulted in either the successful
completion of a diversion program or exoneration.
(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information, to be used for employment,
licensing, or certification purposes, is furnished by the Department
of Justice as the result of an application by an authorized agency,
organization, or individual pursuant to any of the following:
(A) Paragraph (9) of subdivision (c), when the information is to
be used by a cable corporation.
(B) Section 11105.3 or 11105.4.
(C) Section 15660 of the Welfare and Institutions Code.
(D) Any statute that incorporates the criteria of any of the
statutory provisions listed in subparagraph (A), (B), or (C), or of
this subdivision, by reference.
(2) With the exception of applications submitted by transportation
companies authorized pursuant to Section 11105.3, and
notwithstanding any other provision of law, whenever state summary
criminal history information is initially furnished
pursuant to paragraph (1), the Department of Justice shall
disseminate the following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department of
Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the agency's request for information or the conviction is
over 10 years old but the subject of the request was incarcerated
within 10 years of the agency's request for information.
(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.
(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 379 or 550 of the Financial Code,
or any statute that incorporates the criteria of either of those
sections or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially
furnished pursuant to paragraph (1), the Department of Justice shall
disseminate the following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
550 of the Financial Code.
(B) Every arrest for a violation or attempted violation of an
offense specified in Section 550 of the Financial Code for which the
applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.
(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o),
or by a transportation company authorized pursuant to Section
11105.3, or any statute that incorporates the criteria of that
section or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provisions of law, whenever state
summary criminal history information is initially
furnished pursuant to paragraph (1), the Department of Justice shall
disseminate the following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent arrest
notification pursuant to Section 11105.2. This subdivision shall not
supersede sections that mandate an agency, organization, or
individual to contract with the Department of Justice for subsequent
arrest notification pursuant to Section 11105.2.
(r) Nothing in this section shall be construed to mean that the
Department of Justice shall cease compliance with any other statutory
notification requirements.
(s) The provisions of Section 50.12 of Title 28 of the Code of
Federal Regulations are to be followed in processing federal criminal
history information.
(t) Whenever state or federal summary criminal history information
is furnished by the Department of Justice as the result of an
application by an authorized agency, organization, or individual
defined in subdivisions (k) to (p), inclusive, and the information is
to be used for employment, licensing, or certification purposes, the
authorized agency, organization, or individual shall expeditiously
furnish a copy of the information to the person to whom the
information relates if the information is a basis for an adverse
employment, licensing, or certification decision. When furnished
other than in person, the copy shall be delivered to the last contact
information provided by the applicant.
SEC. 3. Section 11105.2 of the Penal Code is amended to read:
11105.2. (a) The Department of Justice may provide subsequent
state or federal arrest or disposition notification to any entity
authorized by state or federal law to receive state or federal
summary criminal history information to assist in fulfilling
employment, licensing, certification duties, or the duties of
approving relative caregivers and nonrelative extended family
members, upon the arrest or disposition of any person whose
fingerprints are maintained on file at the Department of Justice or
the Federal Bureau of Investigation as the result of an application
for licensing, employment, certification, or approval. Nothing in
this section shall authorize the notification of a subsequent
disposition pertaining to a disposition that does not result in a
conviction, unless the department has previously received
notification of the arrest and has previously lawfully notified a
receiving entity of the pending status of that arrest. When the
department supplies subsequent arrest or disposition notification to
a receiving entity, the entity shall, at the same time, expeditiously
furnish a copy of the information to the person to whom it relates
if the information is a basis for an adverse employment, licensing,
or certification decision. When furnished other than in person,
the copy shall be delivered to the last contact information provided
by the applicant.
(b) For purposes of this section, "approval" means those duties
described in subdivision (d) of Section 309 of the Welfare and
Institutions Code for approving the home of a relative caregiver or
of a nonrelative extended family member for placement of a child
supervised by the juvenile court.
(c) Any entity, other than a law enforcement agency employing
peace officers as defined in Section 830.1, subdivisions (a) and (e)
of Section 830.2, subdivision (a) of Section 830.3, subdivisions (a)
and (b) of Section 830.5, and subdivision (a) of Section 830.31,
shall enter into a contract with the Department of Justice in order
to receive notification of subsequent state or federal arrests or
dispositions for licensing, employment, or certification purposes.
(d) Any entity which submits the fingerprints of applicants for
licensing, employment, certification, or approval to the Department
of Justice for the purpose of establishing a record of the applicant
to receive notification of subsequent state or federal arrests or
dispositions shall immediately notify the department when the
employment of the applicant is terminated, when the applicant's
license or certificate is revoked, when the applicant may no longer
renew or reinstate the license or certificate, or when a relative
caregiver's or nonrelative extended family member's approval is
terminated. The Department of Justice shall terminate state or
federal subsequent notification on any applicant upon the request of
the licensing, employment, certifying, or approving authority.
(e) Any entity receiving a notification of a state or federal
subsequent arrest or disposition for a person unknown to the entity,
or for a person no longer employed by the entity, or no longer
eligible to renew the certificate or license for which subsequent
notification service was established shall immediately return the
subsequent notification to the Department of Justice, informing the
department that the entity is no longer interested in the applicant.
The entity shall not record or otherwise retain any information
received as a result of the subsequent notice.
(f) Any entity that submits the fingerprints of an applicant for
employment, licensing, certification, or approval to the Department
of Justice for the purpose of establishing a record at the department
or the Federal Bureau of Investigation to receive notification of
subsequent arrest or disposition shall immediately notify the
department if the applicant is not subsequently employed, or if the
applicant is denied licensing certification, or approval.
(g) An entity that fails to provide the Department of Justice with
notification as set forth in subdivisions (c), (d), and (e) may be
denied further subsequent notification service.
(h) Notwithstanding subdivisions (c), (d), and (f), subsequent
notification by the Department of Justice and retention by the
employing agency shall continue as to retired peace officers listed
in subdivision (c) of Section 830.5.