BILL ANALYSIS Ó
AB 2343
Page 1
Date of Hearing: April 10, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2343 (Torres) - As Amended: March 28, 2012
SUMMARY : Requires that when state and federal summary criminal
history information is furnished to an agency, organization or
individual, a copy of the information shall be provided to the
person to whom the information relates if there is an adverse
employment, licensing, or certification decision. Specifically,
this bill :
1)Clarifies that the state and federal summary criminal history
information initially furnished by the Department of Justice
(DOJ) as the result of an application by an authorized agency
or organization shall include certain specified information as
required under existing provisions of law.
2)Requires whenever state or federal summary criminal history
information is furnished by the DOJ as the result of an
application by an authorized agency, organization, or
individual as defined, and the information is to be used for
employment, licensing, or certification purposes, the
authorized agency, organization, or individual to
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.
3)States that the DOJ 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 DOJ or the Federal
Bureau of Investigations (FBI) as the result of an application
for licensing, employment, certification, or approval.
AB 2343
Page 2
4)Requires when the DOJ supplies subsequent arrest or
disposition notification to a receiving entity, the entity, at
the same time, to expeditiously furnish a copy of the
information to the person to whom it relates if the
information is the basis for an adverse employment, licensing,
or certification decision.
5)States that nothing in the provisions of this bill shall
authorize the notification of a subsequent disposition
pertaining to a disposition that does not result in a
conviction, unless DOJ has previously received notification of
the arrest and has previously lawfully notified a receiving
entity of the pending status of that arrest.
6)Declares legislative intent that this act is not intended to
and does not overrule the decisions, orders, or judgments in
Central Valley 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 or lessen the
protections provided in existing provisions of the Labor Code.
7)Makes other technical, non-substantive changes.
EXISTING LAW :
1)Provides that the DOJ shall maintain state summary criminal
history information. "State summary criminal history
information" is defined as 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. "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 DOJ. ÝPenal Code
Section 11105(a).]
2)States that the Attorney General shall furnish state summary
criminal history information to any of the following, if
AB 2343
Page 3
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, Statutes of 1974, and Labor
Code Section 432.7 shall apply ÝPenal Code Section 11105(b)]:
a) The courts of California;
b) Peace officers of California, as defined;
c) District attorneys of California;
d) Prosecuting city attorneys of any city within
California;
e) City attorneys pursuing civil gang injunctions or drug
abatement actions;
f) Probation officers of California;
g) Parole officers of California;
h) A public defender or attorney of record when
representing a person in proceedings upon a petition for a
certificate of rehabilitation and pardon;
i) 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;
j) 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 DOJ
to be transmitted to the FBI;
aa) Any city or county, city and county, district, or any
AB 2343
Page 4
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 DOJ to be transmitted to the FBI;
bb) The subject of the state summary criminal history
information;
cc) 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;
dd) Health officers of a city, county, city and county, or
district when in the performance of their official duties
in the prevention of communicable diseases;
ee) Any managing or supervising correctional officer of a
county jail or other county correctional facility;
ff) Any humane society, or society for the prevention of
cruelty to animals, for the specific purpose of complying
with existing provisions of law relating to the appointment
of humane officers;
gg) Local child support agencies. 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,
AB 2343
Page 5
other than for offenses related to the parent's having
failed to provide support for minor children;
hh) County child welfare agency personnel who have been
delegated the authority of county probation officers to
access state summary criminal history information pursuant
to the Welfare and Institutions Code (WIC) for the purposes
of investigating child abuse, locating a parent, or
assessing the appropriateness and safety of a child's
placement. 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;
ii) The court of a tribe, or court of a consortium of
tribes, that has entered into an agreement with California
for the purposes of investigating child abuse, locating a
parent, or assessing the appropriateness and safety of a
child's placement, and for tribal approval or tribal
licensing of foster care or adoptive homes;
jj) An officer providing conservatorship investigations;
aaa) A court investigator providing investigations or reviews
in conservatorships;
bbb) A person authorized to conduct a guardianship
investigation; and
ccc) A humane officer for the purposes of performing his or
her duties.
3)Provides that the state and federal summary criminal history
information furnished by the DOJ as the result of an
application by an authorized agency or organization shall
include convictions rendered against the applicant, arrests
for which the applicant is presently awaiting trial, and every
arrest or detention unless the applicant was exonerated or
completed diversion. If DOJ's records do not contain a
disposition for an arrest, the DOJ shall first make a genuine
effort to determine the disposition of the arrest prior to
dissemination. DOJ must provide additional information for
applications submitted by specified authorized agencies.
ÝPenal Code Section 11105(k), (l), (m), (n), (o) and (p).]
AB 2343
Page 6
4)States that DOJ may provide subsequent arrest notification to
any agency authorized by Penal Code Section 11105 to receive
state 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 of any person whose
fingerprints are maintained on file at the DOJ as the result
of an application for licensing, employment, certification, or
approval. The notification shall consist of a current copy of
the person's state summary criminal history transcript.
ÝPenal Code Section 11105.2(a).]
5)Provides that any agency which submits the fingerprints of an
applicant for employment, licensing, certification, or
approval to the DOJ for the purpose of establishing a record
at the DOJ to receive notification of subsequent arrest shall
immediately notify the DOJ if the applicant is not
subsequently employed, or if the applicant is denied licensing
certification, or approval. ÝPenal Code Section 11105.2(f).]
6)Prohibits an employer, whether a public agency or private
individual or corporation, from asking an applicant for
employment to disclose, through any written form or verbally,
information concerning an arrest or detention that did not
result in conviction, or information concerning a referral to,
and participation in, any pretrial or post-trial diversion
program. An employer shall not seek from any source
whatsoever, or utilize, as a factor in determining any
condition of employment including hiring, promotion,
termination, or any apprenticeship training program or any
other training program leading to employment, any record of
arrest or detention that did not result in conviction, or any
record regarding a referral to, and participation in, any
pretrial or post-trial diversion program. As used in this
section, a conviction shall include a plea, verdict, or
finding of guilt regardless of whether sentence is imposed by
the court. Nothing in this section shall prevent an employer
from asking an employee or applicant for employment about an
arrest for which the employee or applicant is out on bail or
on his or her own recognizance pending trial. Exceptions are
as follows ÝLabor Code Section 432.7(a), (b), (e) and (f)]:
a) This section does not prohibit the disclosure of the
information authorized for release under existing
provisions of law to a government agency employing a peace
AB 2343
Page 7
officer. However, the employer shall not determine any
condition of employment other than paid administrative
leave based solely on an arrest report. The information
contained in an arrest report may be used as the starting
point for an independent, internal investigation of a peace
officer;
b) Persons seeking employment or persons already employed
as peace officers or persons seeking employment for
positions in the DOJ or other criminal justice agencies as
defined are not covered by this section;
c) This section does not prohibit an employer at a health
facility, as defined, from asking an applicant for
employment either of the following:
i) With regard to an applicant for a position with
regular access to patients, to disclose an arrest for a
registerable sex offense, or
ii) With regard to an applicant for a position with
access to drugs and medication, to disclose an arrest for
a registerable offense involving controlled substances.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The Department
of Justice (DOJ) has offered subsequent arrest notification
service, pursuant to Penal Code section 11105.2, for decades.
When an individual is fingerprinted as part of a background
check for employment or licensing purposes, the employing or
licensing entity can request the DOJ retain the fingerprints
to provide subsequent arrest notification. After the initial
fingerprint search is accomplished, retaining the fingerprints
allows the DOJ to notice the employing or licensing entity
agency that their employee or licensee was subsequently
arrested. This is critical in the regulatory world, as these
individuals are currently serving in positions of trust. In
instances where individuals with required background checks
are arrested, the employing or licensing entity knows that
their employee or licensee has been arrested, but they are not
noticed by the DOJ as to the outcome or "disposition" of the
arrest. The employing or licensing entity must then contact
AB 2343
Page 8
the arresting agency, the district attorney or the court to
ascertain the disposition of the arrest to determine the
continued suitability of their employee or licensee. This is
a laborious process on both the employing or licensing entity
and the criminal justice community. As such, statutory
authority is sought to have the DOJ provide the disposition of
arrests sent subsequently pursuant to Penal Code section
11105.2.
"The Federal Bureau of Investigation's Next Generation
Identification project will offer subsequent notification
service to states that ask to have their regulatory
fingerprints retained. This project is expected to be in
operation in 2014. As such, the DOJ seeks to have the
statutory allowance to take advantage of this service should
it be deemed procedurally and fiscally possible. This would
be a federal level service equivalent to Penal Code section
11105.2."
2)Background : According to the background information provided
by the author, "Under current law, employing and licensing
entities in California face a laborious process to find out
the disposition of a subsequent arrest of a person whom they
have already employed or licensed.
"Assembly Bill (AB) 2343 has two intentions: provide subsequent
disposition information to California regulatory entities and
provide authority to participate in the Federal Bureau of
Investigation's (FBI) subsequent notification service offering
for regulatory entities."
3)Case Law Regarding Summary Criminal History Information :
Access to summary criminal history information is generally
prohibited, unless otherwise authorized by law. "The state
constitutional right of privacy extends to protect defendants
from unauthorized disclosure of criminal history records.
(Citation.) These records are compiled without the consent of
the subjects and disseminated without their knowledge.
Therefore, . . . custodians of the records, have a duty to
'resist attempts at unauthorized disclosure and the person who
is the subject of the record is entitled to expect that his
right will be thus asserted.'" ÝWestbrook v. County of Los
Angeles (1994) 27 Cal. App. 4th 157, 165-166.]
In Central Valley Chapter of the 7th Step Foundation v. Younger,
AB 2343
Page 9
(Alameda Superior Court No. 497394-6), and the related case,
Gresher v. Deukmejian, supra, plaintiffs filed a lawsuit
against the California DOJ, its Bureau of Criminal
Identification, and various officials including the Attorney
General challenging its policies in disseminating summary
criminal history information to nonexempt agencies and
organizations. The lower court granted in part and denied in
part plaintiffs' requests for declarative and injunctive
relief. Defendants and plaintiffs appealed.
The Court of Appeal found unlawful some of the challenged
policies. The court reasoned that the dissemination of arrest
record information impinges on the fundamental privacy rights
of Californians, thus such dissemination of information must
serve a compelling state interest. (Central Valley v.
Younger, supra, 214 Cal.App.3d at pg. 151.) The court
concluded that dissemination regarding arrests not resulting
in convictions to nonexempt employers and licensing agents for
employment, licensing or certification purposes is not
justified by a compelling state interest. Furthermore, there
is a substantial governmental interest in insuring that the
record of an arrest or detention is complete, therefore the
DOJ may not disseminate incomplete information as to an arrest
or detention without first making a genuine attempt to
determine if the arrestee successfully completed diversion or
was exonerated. (Id. at pg. 152.) The court also concluded
that the exceptions provided in Labor Code Section 432.7 for
those seeking employment as peace officers and other classes
of sensitive employment serve a compelling state interest.
(Id.)
4)Argument in Support : According to the California Department
of Justice , "Assembly Bill 2343 . . . will provide California
with the opportunity to participate in the Federal Bureau of
Investigation's (FBI) Next Generation identification Rapback
process. The Rapback process is similar to the subsequent
notice process detailed in Penal Code section 11105.2. The
Rapback process would have the FBI retain the applicant's
fingerprints in order to provide notice of subsequent activity
logged at the federal level. With the Rapback process, a
federal level CORI ÝCriminal Offender Record Information]
search would remain fresh beyond the date of the initial
search. Currently, regulatory purpose, federal level CORI
searches are executed 'in the moment,' and immediately
thereafter become stale. The FBI has not yet finalized the
AB 2343
Page 10
implementation plan, cost or details surrounding the Rapback
process, which is scheduled to be available in 2014.
"Additionally, AB 2343 will authorize the Attorney General's
Office to provide subsequent disposition information to
entities authorized to conduct criminal history background
checks. Currently the Attorney General's Office may only
provide subsequent arrest information. The agency conducting
the background is then obligated to track the arrest in order
to determine the outcome, and whether the arrest will affect
the employment of the individual already in a position of
trust. This is time consuming and expensive. By allowing the
Attorney General's Office to provide subsequent dispositions,
this legislation will reduce the investigative burden on
entities conducting the background, and will help protect
employees by providing reliable information regarding the
outcome of their case."
5)Related Legislation :
a) AB 2222 (Block) provides that a public prosecutor's case
management database is not a summary criminal history for
the purposes of the Public Records Act. AB 2222 will be
heard by this Committee today.
b) AB 2194 (Gaines) requires that the fingerprints of a
humane officer appointed to a humane society be forwarded
by the DOJ to the FBI and reviewed by the DOJ upon return
and fitness determination be compiled. AB 2194 is pending
hearing by this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Department of Justice (Sponsor)
California Association of Public Authorities
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
AB 2343
Page 11