BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 428
Assemblymembers Flectcher and Ma
As Amended April 23, 2009
Hearing Date: July 7, 2009
Penal Code
KB/GW:jd
SUBJECT
Criminal History Records
DESCRIPTION
This bill would add foreign governments to the list of entities
to which the Attorney General has explicit authority to release
criminal records, provided that the release is requested by the
individual who is the subject of the record and is done for the
purposes of adopting a foreign national child. This bill would
also allow a person to obtain a copy of their own state summary
criminal history information from the Department of Justice
(DOJ) through submission of that individual's fingerprints, and
additional information as defined by the department, for
purposes of attempting to adopt a minor foreign national.
BACKGROUND
Existing law requires the DOJ to preserve criminal records and
to be responsible for providing state summary criminal history
information to various entities for specific purposes, as
described in Penal Code Section 11105. However, nothing in the
Penal Code expressly allows the DOJ to release such information
to foreign governments who request the information in order to
aid in the determination of a current or former California
resident's appropriateness in adopting a minor foreign national.
This bill was approved by the Senate Committee on Public Safety
by a vote of 6 to 1 on June 16, 2009.
CHANGES TO EXISTING LAW
Existing law requires the DOJ to maintain state summary criminal
(more)
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history information, as defined. (Pen. Code Sec. 11105(a)(1).)
Existing law provides that the Attorney General shall provide
state summary criminal history information to various enumerated
entities under specified circumstances. (Pen. Code Sec.
11105(b) et seq.)
Existing law provides that the Attorney General may furnish
state summary criminal history information and, when specified
by Penal Code Section 11105(c), federal level criminal history
information upon showing a compelling need to various enumerated
entities under certain circumstances. (Pen. Code Sec.
11105(c).)
Existing law requires that any person requesting a copy of the
criminal record relating to himself shall obtain an application
form from the DOJ which shall require his fingerprints and other
information as specified by the DOJ. (Pen. Code Sec. 11122.)
Existing law requires that the applicant shall submit the
completed application, along with any applicable fees, directly
to the DOJ. (Pen. Code Sec. 11123.)
Existing law requires that when an application is received by
the DOJ, the department shall determine whether a record
pertaining to the applicant is maintained. If such a record is
maintained, the department shall furnish a copy of the record to
the applicant or person designated by the applicant. If no
record is maintained, the department shall notify the applicant,
or person designated by the applicant. (Pen. Code Sec. 11124.)
This bill would add foreign governments to the list of entities
to which the Attorney General is explicitly authorized to
release state level and federal level criminal history
information, provided that:
the information is requested by the individual who is the
subject of the record requested;
the information is needed in relation to the individual's
application to adopt a minor foreign national;
requests for information are done pursuant to Penal Code
Sections 11122 to 11124; and
the response shall be given to the foreign government, or its
designee, and to the individual who requested the information.
COMMENT
1.Stated need for the bill
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According to the author, many foreign governments require
potential adoptive parents, who are current or previous
residents of California, to provide evidence of their California
criminal history. However, there is no explicit authority which
allows the DOJ to release such information to these entities.
(See Background.)
Currently, the DOJ has developed a "work around" process through
a broad reading of Penal Code Section 11105(c)(9), which allows
the DOJ to provide state summary criminal information if the
individual requesting the record is the subject of the record,
and if the record is needed in conjunction with an application
to enter the United States or any foreign nation. However, the
author and sponsor argue that this procedure is not adequate, as
the procedure does not explicitly provide that the information
can be used in determining the prospective adoptive parent's
suitability for adoption.
Another issue faced by prospective adoptive parents is that many
foreign governments require the criminal record check to have a
certification of authenticity by the Secretary of the State.
This certification requires a unique format different than that
required of other background checks. However, because no
explicit authority has been given to the DOJ to release
information for foreign adoption purposes, applicants must
indicate that the background check is for VISA or Immigration
purposes. The DOJ is then unable to differentiate which
background checks would necessitate the specific format required
for foreign adoptions. If the criminal record check is not
submitted in the correct format, it hinders the prospective
adoptive parent from continuing with the adoption proceedings.
2.AB 428 would help to ensure that all adoptions of a foreign
national minor will be subject the same criminal screening
process as an adoption taking place in the United States.
According to the author, when criminal history information is
released for VISA/Immigration purposes, it is not as complete as
the information that is released to adoption agencies. All
background checks that are released for adoption purposes
include the full criminal history of the prospective adoptive
parent, as required by Family Code Section 8712. Therefore, AB
428 will ensure that information released for adoption purposes
is consistent, regardless of whether the adoption is taking
place within or outside of the United States.
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Support : California Family Council; Los Angeles District
Attorney's Office
Opposition : None Known
HISTORY
Source : Department of Justice
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Committee on Judiciary (Ayes 10, Noes 0)
Assembly Committee on Public Safety (Ayes 7, Noes 0)
Assembly Committee on Appropriations (Ayes 15, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
Senate Committee on Public Safety (Ayes 6, Noes 1)
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