BILL ANALYSIS
AB 428
Page 1
Date of Hearing: April 28, 2009
Consultant: Larry Yee
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 428 (Fletcher) - As Amended: April 23, 2009
SUMMARY : Authorizes specified releases of state criminal
records to a foreign government, when requested for child
adoption purposes. Specifically, this bill adds any foreign
government to the list of entities to which the Attorney General
(AG) is authorized to provide the described information if that
information is needed in conjunction with an individual's
application to adopt a minor child who is a citizen of that
foreign nation and if requested by the individual who is the
subject of the record requested.
EXISTING LAW requires the Department of Justice (DOJ) to
maintain state summary criminal history information, as defined,
and authorizes the AG to furnish state summary criminal history
information and, when specifically authorized, federal level
criminal history information upon a showing of a compelling
need, to various entities for a variety of purposes. [Penal
Code section 11105.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, DOJ is the
statutorily mandated repository for criminal history records
and DOJ is responsible for providing state summary criminal
history information to various specified entities for
specified purposes. However, the DOJ does not have the
explicit statutory authority to search for or release this
information to individuals or foreign governments to aid the
determination of a current or previous California resident's
suitability to adopt a minor foreign national.
The author states that many foreign governments require a
prospective adoptive parent who is an expatriate or resident
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Californian to produce evidence of their California criminal
history. However, there is no explicit authority for the DOJ
to do so, although DOJ may do so now pursuant to a broad
interpretation of Penal Code Section 11105 (c)(9), which
permits the DOJ to furnish state summary criminal information
to any individual the subject of the record requested if
needed in conjunction with an application to enter the United
States or any foreign nation.
According to the author and sponsor, this authority is not
entirely satisfactory because it does not specifically state
that the information can be used for the purpose of
determining an individual's suitability to adopt a minor
foreign national. Additionally, most foreign governments
require a certification of authenticity on a criminal record
check. This certification requires a different format from
all other applicant background checks and must then be
forwarded to the California Secretary of State for
authentication. Because there is no explicit authority to
respond to background checks for foreign adoption purposes,
the applicant must indicate the background check is for
VISA/Immigration purposes, and DOJ often cannot identify it as
one which needs the unique format for foreign adoptions. This
leads to frustration on the part of the applicant who must get
a proper response in order to complete the adoption process.
AB 428, likewise, authorizes an individual to submit fingerprint
images and related data to the DOJ to obtain state summary
criminal information for the purpose of attempting to adopt a
minor child in a foreign nation.
2)Arguments in Support : According to the AG's Office (the
sponsor of this bill), "Currently, existing law provides no
clear statutory authority for the DOJ to search for or release
State Level Criminal Offender Record Information (CORI) to
foreign governments seeking to determine a California
resident's suitability to adopt a minor foreign national.
Because the CORI record is often a prerequisite to such
adoption approval, it is important that DOJ have the authority
to release these records when requested by foreign governments
during the adoption process.
"As the statutorily mandated repository for criminal history
records, the DOJ is responsible for providing CORI to assist
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regulatory entities in making suitability determinations of
affiliated individuals per Penal Code section 11105 and
numerous other sections throughout the codes. Entities must
have explicit statutory authority to request and receive CORI.
Since many foreign governments require a prospective adoptive
parent who is an expatriate or resident Californian, to
produce evidence of their California CORI, the authority
granted to DOJ by AB 428 is essential."
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General's Office (Sponsor)
Opposition
None
Analysis Prepared by : Larry Yee / PUB. S. / (916) 319-3744