BILL ANALYSIS
AB 428
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 428 (Fletcher, Ma, and Solorio)
As Amended August 27, 2009
Majority vote
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|ASSEMBLY: |76-0 |(May 28, 2009) |SENATE: |32-0 |(September 1, |
| | | | | |2009) |
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Original Committee Reference: JUD.
SUMMARY : Authorizes specified releases of state summary
criminal information an individual. Specifically, this bill :
1)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.
2)Requires the AG to disseminate the date and agency name
associated with all retained peace officer or nonsworn law
enforcement agency employee preemployment criminal offender
record information search requests upon receipt of an
application by specified agencies and organizations for
employment and related purposes.
The Senate amendments require the AG to disseminate the date and
agency name associated with all retained peace officer or
nonsworn law enforcement agency employee preemployment criminal
offender record information search requests upon receipt of an
application by specified agencies and organizations for
employment and related purposes.
EXISTING LAW requires the Department of Justice (DOG) 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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate except as noted above.
AB 428
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FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : In support of the bill the author states that 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 Californian, to produce evidence of their
California criminal history. However there is no explicit
authority for the DOJ to do so, although the department 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 who is 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.
Finally, supporters of the bill note, the very limited criminal
history information released for VISA/Immigration purposes is
inconsistent with the dissemination criteria utilized by the DOJ
when responding to California licensed adoption agencies,
independent adoption agencies and/or private adoption agencies.
All other background checks for adoption purposes include the
prospective parent's full criminal history, as specified in the
California Family Code. As such, clear, state level criminal
AB 428
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history search authority for foreign adoptions is needed in
statute, supporters argue, not only in order to reverse
statutory silence, but also to establish consistency among
similar request applicant types.
This bill would likewise authorize individuals 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.
On an unrelated point, the bill also requires the Attorney
General to disseminate the date and agency name associated with
all retained peace officer or nonsworn law enforcement agency
employee preemployment criminal offender record information
search requests upon receipt of an application by specified
agencies and organizations for employment and related purposes.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0002756