SENATE AMENDED PRIOR PRINTER'S NOS. 2645, 3325, 3490, PRINTER'S NO. 3939 3701, 3889
No. 2095 Session of 1978
INTRODUCED BY MESSRS. BERSON, RHODES, PRATT AND WHITE, MARCH 13, 1978
AS AMENDED ON SECOND CONSIDERATION, IN SENATE, NOVEMBER 14, 1978
AN ACT 1 Relating to criminal history record information; providing for 2 the protection of individual right to privacy and for the 3 completeness and accuracy of, the control of dissemination 4 of, the establishment of guidelines for the security of, and 5 provision for quality control of criminal history record 6 information; and providing for the right of individuals to 7 inspect, review and challenge the accuracy of such 8 information; and the establishment of a council to oversee <-- 9 the administration of this act; and providing penalties for 10 violations of this act. 11 TABLE OF CONTENTS 12 Chapter 1. General Provisions 13 Section 101. Short title. 14 Section 102. Definitions. 15 Section 103. Applicability. 16 Section 104. Scope. 17 Section 105. Other criminal justice information. 18 SECTION 106. PROHIBITED INFORMATION. <-- 19 Chapter 2. Completeness and Accuracy 20 Section 201. Duties of criminal justice agencies. 21 Section 202. Mandatory fingerprinting.
1 Section 203. Disposition reporting by criminal justice 2 agencies. 3 Section 204. Correction of inaccurate information. 4 Chapter 3. Dissemination of Criminal History Record 5 Information 6 Section 301. General regulations. 7 Section 302. Access to criminal history record information. <-- 8 Section 303 302. Expungement. <-- 9 Section 304 303. Juvenile records. <-- 10 SECTION 304. USE OF RECORDS. <-- 11 SECTION 305. USE OF RECORDS FOR EMPLOYMENT. 12 Chapter 4. Security 13 Section 401. Security requirements for repositories. 14 Chapter 5. Audit 15 Section 501. Annual audit of repositories. 16 Section 502. Quality control. 17 Chapter 6. Individual Right of Access and Review 18 Section 601. Right to access and review. 19 Section 602. Procedure. 20 Section 603. Individual rights on access and review. 21 Chapter 7. Privacy and Security Council RESPONSIBILITY OF <-- 22 ATTORNEY GENERAL 23 Section 701. Privacy and Security Council. <-- 24 Section 702 701. Duties of Privacy and Security Council <-- 25 THE ATTORNEY GENERAL <-- 26 Chapter 8. Public Notice. 27 Section 801. Requirements of repositories relating to 28 public notice. 29 Chapter 9. Sanctions 30 Section 901. General administrative sanctions. 19780H2095B3939 - 2 -
1 Section 902. Criminal penalties. 2 Section 903. Civil actions. 3 Chapter 10. Effective Date and Repealer 4 Section 1001. Repealer. 5 Section 1002. Effective date. 6 The General Assembly of the Commonwealth of Pennsylvania 7 hereby enacts as follows: 8 CHAPTER 1 9 GENERAL PROVISIONS 10 Section 101. Short title. 11 This act shall be known and may be cited as the "Criminal 12 History Record Information Act." 13 Section 102. Definitions. 14 The following words and phrases when used in this act shall 15 have the meanings given to them in this section, unless the 16 context clearly indicates otherwise: 17 "Administration of criminal justice." The activities 18 directly concerned with the prevention, control or reduction of 19 crime, the apprehension, detention, pretrial release, post-trial 20 release, prosecution, adjudication, correctional supervision or 21 rehabilitation of accused persons or criminal offenders; 22 criminal identification activities; or the collection, storage 23 dissemination or usage of criminal history record information. 24 "Audit." The process of reviewing compliance with applicable 25 Federal and State laws and regulations related to the privacy 26 and security of criminal history record information. 27 "Central repository." The central location for the 28 collection, compilation, maintenance and dissemination of 29 criminal history record information by the Pennsylvania State 30 Police. 19780H2095B3939 - 3 -
1 "Criminal history record information." Information collected 2 by criminal justice agencies concerning individuals, consisting 3 of identifiable descriptions, dates and notations of arrests, 4 detentions, indictments, informations or other formal charges 5 and any dispositions arising therefrom. The term does not 6 include intelligence information, investigative information or 7 treatment information, including medical and psychological 8 information, or information and records specified in section 9 104. 10 "Criminal justice agency." Any court, including the minor 11 judiciary, with criminal jurisdiction or any other governmental 12 agency, or subunit thereof, created by statute or by the State 13 or Federal constitutions, specifically authorized to perform as 14 its principal function the administration of criminal justice, 15 and which allocates a substantial portion of its annual budget 16 to such function. Criminal justice agencies include, but are not 17 limited to: organized State and municipal police departments, 18 local detention facilities, county, regional and State 19 correctional facilities, probation agencies, district or 20 prosecuting attorneys, parole boards and pardon boards. 21 "Disposition." Information indicating that criminal 22 proceedings have been concluded, including information 23 disclosing that police have elected not to refer a matter for 24 prosecution, that a prosecuting authority has elected not to 25 commence criminal proceedings or that a grand jury has failed to 26 indict and disclosing the nature of the termination of the 27 proceedings; or information disclosing that proceedings have 28 been indefinitely postponed and also disclosing the reason for 29 such postponement. Dispositions of criminal proceedings in the 30 Commonwealth shall include, but not be limited to, acquittal, 19780H2095B3939 - 4 -
1 acquittal by reason of insanity, pretrial probation or 2 diversion, charge dismissed, guilty plea, nolle prosequi, no 3 information filed, nolo contendere plea, convicted, abatement, 4 discharge under rules of the Pennsylvania Rules of Criminal 5 Procedure, demurrer sustained, pardoned, sentence commuted, 6 mistrial-defendant discharged, discharge from probation or 7 parole or correctional supervision. 8 "Dissemination." The oral or written transmission or 9 disclosure of criminal history record information, including the <-- 10 confirmation of its existence or nonexistence, to individuals or 11 agencies other than the criminal justice agency which maintains 12 the information. 13 "Expunge." 14 (1) to remove information so that there is no trace or 15 indication that such information existed; or 16 (2) to eliminate all identifiers which may be used to 17 trace the identity of an individual, allowing remaining data 18 to be used for statistical purposes. 19 "Repository." Any location in which criminal history record 20 information is collected, compiled, maintained and disseminated 21 by a criminal justice agency. 22 "Secondary dissemination." The subsequent transmission or 23 disclosure of criminal history record information received from 24 a repository or confirmation of the existence or nonexistence of 25 criminal history record information received from a repository. 26 Section 103. Applicability. 27 This act shall apply to persons within the Commonwealth and 28 to any agency of the Commonwealth or its political subdivisions 29 which collects, maintains, disseminates or receives criminal 30 history record information. 19780H2095B3939 - 5 -
1 Section 104. Scope. 2 (a) Except for the provisions of Chapters 2, 4 and 6, 3 nothing in this act shall be construed to apply to: 4 (1) Original records of entry compiled chronologically, 5 including, but not limited to, police blotters. 6 (2) Any documents, records or indices prepared or 7 maintained by or filed in any court of this Commonwealth, 8 including but not limited to the minor judiciary. 9 (3) Posters, announcements, or lists for identifying or 10 apprehending fugitives or wanted persons. 11 (4) Announcements of executive clemency. 12 (b) Court dockets and police blotters and information 13 contained therein shall, for the purpose of this act, be 14 considered public record. 15 (c) Where court dockets are not maintained any reasonable 16 substitute containing that information traditionally available 17 in court dockets shall, for the purpose of this act, be 18 considered public record. 19 (d) Nothing in this act must be interpreted to limit the 20 disclosure by the arresting authority, a court, or other 21 criminal justice agency having legal jurisdiction over the 22 individual to any individual or agency of the current status of 23 an individual involved in a criminal case in progress or for 24 which an individual is currently in the criminal justice system 25 so long as such information is disseminated no more than 180 26 days from the occurrence of any final official action by or 27 final release from the supervision, custody or jurisdiction of 28 that agency. 29 (e) Nothing in this act shall prohibit a criminal justice 30 agency from disclosing an individual's prior criminal activity 19780H2095B3939 - 6 -
1 to an individual or agency if the information disclosed is based 2 on records set forth in section 104. 3 (f) Information collected by noncriminal justice agencies 4 and individuals from the sources identified in this section 5 shall not be considered criminal history record information. 6 Section 105. Other criminal justice information. 7 Nothing in this act shall be construed to apply to 8 information concerning juveniles, except as provided in section 9 304, unless they have been adjudicated as adults, nor shall it 10 apply to intelligence information, investigative information, 11 treatment information, including medical and psychiatric 12 information, caution indicator information, modus operandi 13 information, wanted persons information, stolen property 14 information, missing persons information, employment history 15 information, personal history information, nor presentence 16 investigation information. Criminal history record information 17 maintained as a part of these records shall not be disseminated 18 unless in compliance with the provisions of this act. 19 SECTION 106. PROHIBITED INFORMATION. <-- 20 THE FOLLOWING KINDS OF INFORMATION SHALL NOT BE COLLECTED IN 21 THE CENTRAL REPOSITORY NOR IN ANY AUTOMATED OR ELECTRONIC 22 CRIMINAL JUSTICE INFORMATION SYSTEM: 23 (1) INTELLIGENCE INFORMATION; 24 (2) INVESTIGATIVE INFORMATION; AND 25 (3) TREATMENT INFORMATION, INCLUDING BUT NOT LIMITED TO 26 MEDICAL OR PSYCHOLOGICAL INFORMATION. 27 CHAPTER 2 28 COMPLETENESS AND ACCURACY 29 Section 201. Duties of criminal justice agencies. 30 It shall be the duty of every criminal justice agency within 19780H2095B3939 - 7 -
1 the Commonwealth to maintain complete and accurate criminal 2 history record information as required by the Privacy and <-- 3 Security Council as provided in Chapter 7 and to report such 4 information at such times and in such manner as required by the 5 provisions of this or other acts. 6 Section 202. Mandatory fingerprinting. 7 (a) Fingerprints of all persons arrested for a felony, 8 misdemeanor or summary offense which becomes a misdemeanor on a 9 second arrest after conviction of that summary offense, shall be 10 taken by the arresting authority, and within 48 hours of the 11 arrest, shall be forwarded to, and in a manner and such a form 12 as provided by, the central repository. 13 (b) Where private complaints for a felony or misdemeanor 14 result in a conviction or offenses under 18 Pa.C.S. § 3929 15 (relating to retail theft), the issuing authority shall order 16 the defendant to submit for fingerprinting by the municipal 17 police of the jurisdiction in which the offense allegedly was 18 committed or in the absence of a police department the State 19 police. Fingerprints so obtained shall be forwarded immediately 20 to the central repository. 21 (c) The central repository shall transmit the criminal 22 history record information to the criminal justice agency which 23 submitted the fingerprint card. 24 Section 203. Disposition reporting by criminal justice 25 agencies. 26 (a) All criminal justice agencies, including but not limited 27 to, courts, county, regional and State correctional institutions 28 and parole and probation agencies, shall collect and submit 29 reports of dispositions occurring within their respective 30 agencies for criminal history record information, within 90 days 19780H2095B3939 - 8 -
1 of the date of such disposition to the central repository as 2 provided for in this section. 3 (b) Courts shall collect and submit criminal court 4 dispositions as required by the Administrative Office of 5 Pennsylvania Courts. 6 (c) County and, regional AND STATE correctional institutions <-- 7 shall collect and submit information regarding the admission, 8 release and length of sentence of individuals sentenced to local 9 and county institutions as required by the Bureau of Correction. 10 (d) County probation and parole offices shall collect and 11 submit information relating to the length of time and charges 12 for which an individual is placed under and released from the 13 jurisdiction of such agency as required by the Pennsylvania 14 Board of Probation and Parole. 15 (e) The Administrative Office of Pennsylvania Courts, the 16 Bureau of Correction, the Pennsylvania Board of Probation and 17 Parole and the Pennsylvania Board of Pardons, shall collect and 18 submit to the central repository such information necessary to 19 maintain complete and accurate criminal history record 20 information. Such criminal history record information shall be <-- 21 submitted in accordance with the standards for completeness and 22 accuracy promulgated by the Privacy and Security Council. Each 23 INFORMATION. EACH state agency listed in this subsection shall <-- 24 submit to the central repository any reports of dispositions 25 occurring within their respective agencies and such information 26 reported from county and local criminal justice agencies. 27 Section 204. Correction of inaccurate information. 28 Within 15 days of the detection of inaccurate data in a 29 criminal history record, regardless of the manner of discovery, 30 the criminal justice agency which reported the information shall 19780H2095B3939 - 9 -
1 comply with the following procedures to effect correction: 2 (1) Correct its own records. 3 (2) Notify all recipients, including the central 4 repository, of the inaccurate data and the required 5 correction. 6 CHAPTER 3 7 DISSEMINATION OF CRIMINAL HISTORY RECORD INFORMATION 8 Section 301. General regulations. 9 (a) No dissemination of criminal history record information <-- 10 is permitted except as provided for by this act or by rule of 11 court promulgated by the Supreme Court of Pennsylvania or by 12 resolution of either House of the General Assembly. No 13 administrative rule or regulation promulgated by any 14 Commonwealth agency, referring to or inferring the need for 15 criminal history record information, shall be sufficient 16 authority for the dissemination of criminal history record 17 information. 18 (A) THE ATTORNEY GENERAL SHALL ESTABLISH IN ACCORDANCE WITH <-- 19 THE PROVISIONS OF THE COMMONWEALTH DOCUMENTS LAW, REGULATIONS 20 CONCERNING THE DISSEMINATION OF CRIMINAL HISTORY RECORD 21 INFORMATION WHICH SHALL DISTINGUISH BETWEEN CONVICTION AND 22 NONCONVICTION DATA. ANY CRIMINAL JUSTICE AGENCY MAY ADOPT ITS <-- 23 OWN RULES OF DISSEMINATION, PROVIDED THEY ARE IN ACCORDANCE WITH 24 THIS ACT, DISTINGUISH BETWEEN CONVICTION AND NONCONVICTION DATA 25 AND ARE MADE PUBLIC IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 26 8. 27 (b) Any criminal justice agency which disseminates criminal 28 history record information must indicate to the recipient that 29 the information disseminated is only that information contained 30 in its own file, the date of the last entry, and that a summary 19780H2095B3939 - 10 -
1 of the Statewide criminal history record information may be 2 obtained from the central repository. 3 (c) Except during joint criminal investigations, no 4 secondary dissemination of criminal history record information 5 is permitted except as provided for by this act. 6 (d) No duplication of criminal history record information by 7 any agency or CRIMINAL JUSTICE AGENCY EXCEPT FOR ITS OWN <-- 8 INTERNAL USE, OR BY ANY individual receiving criminal history 9 record information is permitted. 10 (e) All noncriminal justice agencies or individuals or 11 agencies receiving criminal history record information must 12 return to the disseminating agency or destroy, in accordance 13 with an agreement with the repository, all such information 14 received upon completion of the specific purpose for which 15 criminal history record information was received; nor shall such 16 information be permanently incorporated into the files or 17 records of the agency or individual receiving it. 18 (f) Repositories must enter as a permanent part of an 19 individual's criminal history record information file, a listing 20 of all persons and agencies to whom they have disseminated that 21 particular criminal history record information and the date and 22 purpose for which the information was disseminated. Such listing 23 shall be maintained separate from the record itself. 24 (g) Repositories shall ensure that criminal history record <-- 25 information is disseminated only to agencies or individuals 26 authorized by the provisions of this act to receive such 27 information. 28 (h) No agency or individual shall confirm or deny in any 29 manner the existence or nonexistence of criminal history record 30 information to any person or agency not eligible to receive the 19780H2095B3939 - 11 -
1 information itself unless such information is obtained from 2 records identified in section 104. 3 (i) (G) Any noncriminal justice official, agency or <-- 4 organization requesting criminal history record information 5 prior to receipt of any such criminal history record 6 information, must sign a contract with the repository from which 7 it is seeking criminal history record information, agreeing to 8 abide by the provisions of this act. Any such noncriminal 9 justice official, agency or organization entering into such a 10 contract with a repository is bound by and subject to the 11 provisions of this act. 12 (j) (H) Except as otherwise provided in this act, no <-- 13 criminal history record information acquired from repositories 14 other than the central repository shall be permanently 15 incorporated into the files or records of the criminal justice 16 agency or individual and must be destroyed upon completion of 17 the specific purpose for which such information was received. 18 Section 302. Access to criminal history record information. <-- 19 (a) Except as provided in section 302(c), accesss to 20 criminal history record information shall be limited to: 21 (1) Criminal justice agencies for the purpose of the 22 administration of criminal justice and criminal justice 23 agency employment. 24 (2) Auditors working under the direction of the Privacy 25 and Security Council. 26 (3) Such other individuals and agencies authorized by 27 statute to receive criminal history record information or 28 which require criminal history record information to 29 implement a statute expressly referring to criminal conduct 30 and containing either requirements or exclusions or both 19780H2095B3939 - 12 -
1 expressly based upon such criminal conduct. 2 (4) Agencies of Federal, State and foreign governments 3 authorized by statute to conduct investigations determining 4 employment suitability or eligibility for security 5 clearances. 6 (5) (i) The chief executive of any Federal, State or 7 local government or any governmental body of the same 8 required to confirm an appointment or nomination for the 9 purpose of determining the suitability of a potential 10 appointment or nomination of an individual to a 11 governmental position. 12 (ii) The office of the Governor may make a request 13 to any repository for an oral report concerning the 14 contents of the criminal history record information 15 maintained on a prospective appointee to a Commonwealth 16 board or commission. A copy of the criminal history 17 record information will be provided upon receipt of 18 fingerprint identification of the subject about whom 19 criminal history record information is sought. 20 (iii) The office of the Governor, in order to assist 21 the Governor in the exercise of the pardoning power 22 provided by Article IV, section 9 of Constitution of 23 Pennsylvania. 24 (6) Defense counsel, through the court, for the purpose 25 of obtaining criminal history record information about a 26 client or witness with regard to a case in progress. 27 (7) (i) Individuals and agencies for the express 28 purpose of research, evaluative or statistical 29 activities, or other services required for administration 30 of criminal justice pursuant to an agreement with the 19780H2095B3939 - 13 -
1 disseminating agency which authorizes access to criminal 2 history record information, limits the use of criminal 3 history record information to research, evaluative or 4 statistical purposes and ensures the confidentiality and 5 security of the criminal history record information, 6 consistent with this act. Such individuals and agencies 7 are bound by and subject to the provisions of this act. 8 (ii) Requests by any noncriminal justice agency, 9 individual or organization for criminal history record 10 information for research or statistical purposes, 11 requiring the identity of persons about whom such records 12 are maintained, must be approved by the Privacy and 13 Security Council. Any individual or agency requesting 14 criminal history record information for research or 15 statistical purposes must submit a research proposal to 16 the Privacy and Security Council. 17 (8) Officials of correctional facilities or 18 institutions, with the consent of the individual about whom 19 information is sought, may disseminate criminal history 20 record information to prospective employers or other 21 individuals, when such information is helpful in obtaining 22 employment or rehabilitating the individual about whom the 23 information relates. 24 (9) Any individual, upon request and proper verification 25 of identity, for the purpose of reviewing his own criminal 26 history record information, according to the procedure set 27 forth in Chapter 6. 28 (10) Agencies authorized to issue visas or grant 29 citizenship. 30 (11) Individuals and agencies authorized by a court 19780H2095B3939 - 14 -
1 order to receive criminal history record information relating 2 to a case in progress. 3 (12) Employers for the purpose of determining the 4 employment suitability of any prospective employee; provided 5 such employer pay a fee established by the Commissioner of 6 the Pennsylvania State Police and provided that access shall 7 not be given to any employer unless the prospective employee 8 shall have given written consent to the inquiry. 9 (13) The Pennsylvania Department of Banking, the 10 Pennsylvania Insurance Department and the Pennsylvania 11 Department of Education shall have access to criminal history 12 record information maintained in the central repository for 13 the purpose of determining the employment suitability of any 14 employee; or nomination or appointment of directors, trustees 15 and proposed officers; for the granting of charters; issuance 16 of any license, certificate or permits; or the revocation or 17 suspension of such license, permit or certification of any 18 agency, institution, individual or affiliate thereof over 19 which they have legal authority or jurisdiction, including 20 services performed under contract or other written agreement 21 by any such agency, institution or individual. 22 (b) Fingerprint identification of the individual about whom 23 information is requested shall be required under paragraphs (3), 24 (5)(i) and (10) of subsection (a). 25 (c) Any member of the working press shall, upon written 26 request, have access to conviction data contained in criminal 27 history record information from the central repository. Each 28 request for the criminal history record information of an 29 individual shall be a separate inquiry. The central repository 30 may impose a fee to cover the cost of complying with the request 19780H2095B3939 - 15 -
1 for information from noncriminal agencies upon approval of the 2 fee by the Privacy and Security Council. 3 Section 303 302. Expungement. <-- 4 (a) Criminal history record information shall be expunged in 5 a specific criminal proceeding when: 6 (1) no disposition has been received or, upon request 7 for criminal history record information, no disposition has 8 been recorded in the repository within 18 months after the 9 date of arrest and the court of proper jurisdiction certifies 10 to the director of the repository that no disposition is 11 available and no action is pending. Expungement shall not 12 occur until the certification from the court is received and 13 the director of the repository authorizes such expungement; 14 or 15 (2) a court order requires that such nonconviction data 16 be expunged. 17 (b) Criminal history record information may be expunged 18 when: 19 (1) an individual who is the subject of the information 20 reaches 70 years of age and has been free of arrest or 21 prosecution for ten years following final release from 22 confinement or supervision; or 23 (2) an individual who is the subject of the information 24 has been dead for three years. 25 (c) Requests for criminal history record information which <-- 26 has been expunged must be answered only with a statement that no 27 such information exists. 28 (C) NOTWITHSTANDING, ANY OTHER PROVISION OF THIS ACT, THE <-- 29 PROSECUTING ATTORNEY AND THE CENTRAL REPOSITORY SHALL, AND THE 30 COURT MAY, MAINTAIN A LIST OF THE NAMES AND OTHER CRIMINAL 19780H2095B3939 - 16 -
1 HISTORY RECORD INFORMATION OF PERSONS WHOSE RECORDS ARE REQUIRED 2 BY LAW OR COURT RULE TO BE EXPUNGED WHERE THE INDIVIDUAL HAS <-- 3 SUCCESSFULLY COMPLETED THE CONDITIONS OF ANY PRE-TRIAL OR POST- 4 TRIAL DIVERSION OR PROBATION PROGRAM. SUCH INFORMATION SHALL BE 5 USED SOLELY FOR THE PURPOSE OF DETERMINING SUBSEQUENT 6 ELIGIBILITY FOR SUCH PROGRAMS. CRIMINAL HISTORY RECORD 7 INFORMATION MAY BE EXPUNGED AS PROVIDED IN SECTION 302(B)(1) AND 8 (2). SUCH INFORMATION SHALL BE MADE AVAILABLE TO ANY COURT UPON 9 REQUEST. 10 (d) Notice of expungement shall promptly be submitted to the 11 central respository which shall notify all criminal justice 12 agencies which have received the criminal history record 13 information to be expunged. 14 (e) Public records listed in section 104 shall not be 15 expunged. 16 (F) NO EXPUNGEMENT SHALL BE MADE WITHOUT TEN DAYS PRIOR <-- 17 NOTICE TO THE DISTRICT ATTORNEY OF THE COUNTY WHERE THE ORIGINAL 18 CHARGES WERE FILED. 19 Section 304 303. Juvenile records. <-- 20 (a) Notwithstanding the provisions of section 105 and except 21 upon cause shown, expungement of records of juvenile delinquency 22 cases wherever kept or retained shall occur AFTER TEN DAYS <-- 23 NOTICE TO THE DISTRICT ATTORNEY, When WHENEVER the court upon <-- 24 its motion or upon the motion of a child or the parents or 25 guardian finds: 26 (1) a complaint is filed which is not substantiated or 27 the petition which is filed as a result of a complaint is 28 dismissed by the court; 29 (2) three FIVE years have elapsed since the final <-- 30 discharge of the person from commitment, placement, probation 19780H2095B3939 - 17 -
1 or any other disposition and referral and since such final 2 discharge, the person has not been convicted of a felony, 3 misdemeanor or adjudicated delinquent and no proceeding is 4 pending seeking such conviction or adjudication; or 5 (3) the individual is 21 years of age or older and a 6 court orders the expungement. 7 (b) The court shall give notice of the applications for the 8 expungement of juvenile records to the prosecuting attorney. 9 (c) All records of children alleged to be or adjudicated 10 dependent, may be expunged upon court order after the child is 11 21 years of age or older. 12 SECTION 304. USE OF RECORDS. <-- 13 (A) EXCEPT AS PROVIDED BY THIS ACT, A BOARD, COMMISSION OR 14 DEPARTMENT OF THE COMMONWEALTH, WHEN DETERMINING ELIGIBILITY FOR 15 LICENSING, CERTIFICATION, REGISTRATION OR PERMISSION TO ENGAGE 16 IN A TRADE, PROFESSION OR OCCUPATION, MAY CONSIDER CONVICTIONS 17 OF THE APPLICANT OF CRIMES BUT THE CONVICTIONS SHALL NOT 18 PRECLUDE THE ISSUANCE OF A LICENSE, CERTIFICATE, REGISTRATION OR 19 PERMIT. 20 (B) THE FOLLOWING INFORMATION SHALL NOT BE USED IN 21 CONSIDERATION OF AN APPLICATION FOR A LICENSE, CERTIFICATE, 22 REGISTRATION, OR PERMIT: 23 (1) RECORDS OF ARREST IF THERE IS NO CONVICTION OF A 24 CRIME BASED ON THE ARREST. 25 (2) CONVICTIONS WHICH HAVE BEEN ANNULLED OR EXPUNGED. 26 (3) CONVICTIONS OF A SUMMARY OFFENSE. 27 (4) INFORMATION THAT THE INDIVIDUAL HAS RECEIVED A 28 PARDON FROM THE GOVERNOR. 29 (C) BOARDS, COMMISSIONS OR DEPARTMENTS OF THE COMMONWEALTH 30 AUTHORIZED TO LICENSE, CERTIFY, REGISTER OR PERMIT THE PRACTICE 19780H2095B3939 - 18 -
1 OF TRADES, OCCUPATIONS OR PROFESSIONS MAY REFUSE TO GRANT OR 2 RENEW, OR MAY SUSPEND OR REVOKE ANY LICENSE, CERTIFICATE, 3 REGISTRATION OR PERMIT FOR THE FOLLOWING CAUSES: 4 (1) WHERE THE APPLICANT HAS BEEN CONVICTED OF A FELONY. 5 (2) WHERE THE APPLICANT HAS BEEN CONVICTED OF A 6 MISDEMEANOR WHICH RELATES TO THE TRADE, OCCUPATION OR 7 PROFESSION FOR WHICH THE LICENSE, CERTIFICATE, REGISTRATION 8 OR PERMIT IS SOUGHT. 9 (D) THE BOARD, COMMISSION OR DEPARTMENT SHALL NOTIFY THE 10 INDIVIDUAL IN WRITING OF THE REASONS FOR A DECISION WHICH 11 PROHIBITS THE APPLICANT FROM PRACTICING THE TRADE, OCCUPATION OR 12 PROFESSION IF SUCH DECISION IS BASED IN WHOLE OR PART ON 13 CONVICTION OF ANY CRIME. 14 SECTION 305. USE OF RECORDS FOR EMPLOYMENT. 15 (A) WHENEVER AN EMPLOYER IS IN RECEIPT OF INFORMATION WHICH 16 IS PART OF AN EMPLOYMENT APPLICANT'S CRIMINAL HISTORY RECORD 17 INFORMATION FILE, IT MAY USE THAT INFORMATION FOR THE PURPOSE OF 18 DECIDING WHETHER OR NOT TO HIRE THE APPLICANT, ONLY IN 19 ACCORDANCE WITH THIS SECTION. 20 (B) CONVICTIONS FOR FELONIES, AS WELL AS MISDEMEANOR 21 CONVICTIONS AND ARRESTS FOR OFFENSES, WHICH RELATE TO THE 22 APPLICANT'S SUITABILITY FOR EMPLOYMENT IN THE POSITION FOR WHICH 23 HE HAS APPLIED MAY BE CONSIDERED BY THE EMPLOYER. MISDEMEANOR 24 CONVICTIONS AND ARRESTS FOR OFFENSES WHICH DO NOT RELATE TO THE 25 APPLICANT'S SUITABILITY FOR EMPLOYMENT IN THE POSITION FOR WHICH 26 HE HAS APPLIED SHALL NOT BE CONSIDERED BY THE EMPLOYER. 27 (C) THE EMPLOYER SHALL NOTIFY IN WRITING THE APPLICANT IF 28 THE DECISION NOT TO HIRE THE APPLICANT IS BASED IN WHOLE OR IN 29 PART ON CRIMINAL HISTORY RECORD INFORMATION. 30 CHAPTER 4 19780H2095B3939 - 19 -
1 SECURITY 2 Section 401. Security requirements for repositories. 3 Every criminal justice agency collecting, storing or 4 disseminating criminal history record information shall ensure 5 the confidentiality and security of criminal history record 6 information by providing that wherever such information is 7 maintained, a criminal justice agency must: 8 (1) Institute procedures to reasonably protect any 9 repository from theft, fire, sabotage, flood, wind or other 10 natural or man-made disasters. 11 (2) Select, supervise and train all personnel authorized 12 to have access to criminal history record information. 13 (3) Ensure that, where computerized data processing is 14 employed, the equipment utilized for maintaining criminal 15 history record information is solely dedicated to purposes 16 related to the administration of criminal justice, or, if the 17 equipment is not used solely for the administration of 18 criminal justice, the criminal justice agency shall be 19 accorded equal management participation in computer 20 operations used to maintain the criminal history record 21 information. 22 (4) Provide that criminal history record information 23 maintained in a repository is disseminated upon proper 24 validation only to those individuals and agencies authorized 25 to receive the information by the provisions of this act. 26 CHAPTER 5 27 AUDIT 28 Section 501. Annual audit of repositories. 29 (a) The Privacy and Security Council shall establish an <-- 30 auditing team to (A) THE ATTORNEY GENERAL SHALL conduct annual <-- 19780H2095B3939 - 20 -
1 audits of the central repository and of a representative sample 2 of all repositories to ensure that the provisions of this act 3 are upheld. 4 (b) Persons conducting the audit shall be provided access to 5 all records, reports and listings required to conduct an audit 6 of criminal history record information, and all persons with 7 access to such information or authorized to receive such 8 information shall cooperate with and provide information 9 requested. by the auditing team. <-- 10 (c) The auditing team shall prepare AUDIT SHALL CONTAIN a <-- 11 report of deficiencies and recommendations for the correction of 12 such deficiencies. Upon the completion of every audit, the 13 audited agency shall carry out the recommendations within a 14 reasonable period of time unless the audit report is appealed to 15 the Privacy and Security Council ATTORNEY GENERAL and the appeal <-- 16 is upheld. 17 (d) The Privacy and Security Council ATTORNEY GENERAL shall <-- 18 have the power to modify the corrective measures ordered by the <-- 19 auditing team RECOMMENDED BY THE AUDIT. <-- 20 Section 502. Quality control. 21 Each repository shall establish effective procedures, in 22 compliance with rules and regulations promulgated by the Privacy 23 and Security Council, for the completeness and accuracy of 24 criminal history record information. 25 CHAPTER 6 26 INDIVIDUAL RIGHT OF ACCESS AND REVIEW 27 Section 601. Right to access and review. 28 (a) Any individual or his legal representative has the right 29 to review, challenge, correct and appeal the accuracy and 30 completeness of his criminal history record information. 19780H2095B3939 - 21 -
1 (b) Persons incarcerated in correctional facilities and
2 institutions may authorize a correctional employee to obtain a
3 copy of their criminal history record information for the
4 purpose of review, challenge and appeal.
5 Section 602. Procedure.
6 (a) The Privacy and Security Council ATTORNEY GENERAL IN <--
7 COOPERATION WITH APPROPRIATE CRIMINAL JUSTICE AGENCIES shall
8 promulgate rules and regulations to implement this section and
9 shall establish reasonable fees.
10 (b) Any individual requesting to review his or her own
11 criminal history record information shall submit proper
12 identification to the criminal justice agency which maintains
13 his or her record. Proper identification shall be determined by
14 the officials of the repository where the request is made. If
15 criminal history record information exists the individual may
16 review a copy of such information without undue delay for the
17 purpose of review and challenge.
18 (c) The individual may challenge the accuracy of his or her
19 criminal history record information by specifying which portion
20 of the record is incorrect and what the correct version should
21 be. Failure to challenge any portion of the record in existence
22 at that time will place the burden of proving the inaccuracy of
23 any part subsequently challenged upon the individual.
24 Information subsequently added to such record shall also be
25 subject to review, challenge, correction or appeal.
26 (d) All criminal justice agencies shall have 60 days to
27 conduct a review of any challenge and shall have the burden of
28 proving the accuracy of the record. If the challenge is deemed
29 valid, the appropriate officials must ensure that:
30 (1) The criminal history record information is
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1 corrected. 2 (2) A certified and corrected copy of the criminal 3 history record information is provided to the individual. 4 (3) Prior erroneous criminal history record information 5 disseminated to criminal justice agencies shall be destroyed 6 or returned and replaced with corrected information. 7 (4) The individual is supplied with the names of those 8 noncriminal justice agencies and individuals which have 9 received erroneous criminal history record information. 10 (e) (1) If the challenge is ruled invalid, an individual 11 has the right to appeal the decision to the Privacy and <-- 12 Security Council ATTORNEY GENERAL within 30 days of <-- 13 notification of the decision by the criminal justice agency. 14 (2) The Privacy and Security Council ATTORNEY GENERAL <-- 15 shall have the authority to conduct administrative appeal 16 hearings in accordance with the "Administrative Agency Law." 17 (3) The decision of the Privacy and Security Council <-- 18 ATTORNEY GENERAL may be appealed to the Commonwealth Court by <-- 19 an aggrieved individual. 20 Section 603. Individual rights on access and review. 21 Any individual exercising his or her right to access and 22 review under the provisions of this chapter, shall be informed 23 when criminal history record information is made available that 24 he or she is under no obligation to divulge such information to 25 any person or agency. 26 CHAPTER 7 27 PRIVACY AND SECURITY COUNCIL <-- 28 Section 701. Privacy and Security Council. 29 (a) There is hereby created a Privacy and Security Council, 30 which shall function independently of but for administrative 19780H2095B3939 - 23 -
1 purposes shall be in the office of the Governor. 2 (b) The Privacy and Security Council shall consist of the 3 Attorney General, the Commissioner of the Pennsylvania State 4 Police, the State Court Administrator, the President pro tempore 5 of the Senate shall appoint one member, and the Speaker of the 6 House shall appoint one member, a local chief of police and one 7 private citizen to be appointed by the Governor. 8 (c) Each member shall be eligible for reappointment and the 9 Governor shall fill vacancies by appointing a person to fill the 10 unexpired term. 11 (d) The council shall elect one member of the Privacy and 12 Security Council as chairperson thereof, to serve as such at the 13 pleasure of the Governor. 14 (e) Members of the Privacy and Security Council shall 15 receive no compensation but shall be entitled to receive 16 reimbursement for travel and other necessary expenses incurred 17 in the performance of their duties as members of the Privacy and 18 Security Council. 19 Section 702. Duties of Privacy and Security Council. 20 RESPONSIBILITY OF ATTORNEY GENERAL <-- 21 SECTION 701. DUTIES OF THE ATTORNEY GENERAL. <-- 22 The Privacy and Security Council ATTORNEY GENERAL shall have <-- 23 the power and authority to: 24 (1) Establish rules and regulations for criminal history 25 record information with respect to security, completeness, 26 accuracy, individual access and review, quality control and 27 audits of repositories. 28 (2) Establish a uniform schedule of reasonable fees for 29 the costs of reproducing criminal history record information 30 for individual access and review and for research or 19780H2095B3939 - 24 -
1 statistical purposes and access by noncriminal justice 2 agencies. 3 (3) Conduct hearings to further the purposes of this <-- 4 act. 5 (4) (3) Make investigations concerning all matters 6 touching the administration and enforcement of this act and 7 the rules and regulations promulgated thereunder. 8 (5) Issue subpoenas over the signature of the chairman, <-- 9 after approved by a majority of the members of the council, 10 to require the attendance of witnesses and the production of 11 records and papers pertaining to any investigation or inquiry 12 concerning matters relating to this act. The fees for such 13 witnesses for travel and attendance shall be the same as for 14 witnesses appearing in the courts and shall be paid from 15 appropriations made to the council. 16 (6) Institute, through the office of the Attorney 17 General, (4) INSTITUTE civil and criminal proceedings for <-- 18 violations of this act and the rules and regulations adopted 19 thereunder. 20 (7) (5) Conduct annual audits of the central repository <-- 21 and of a representative sample of all repositories within the 22 Commonwealth, collecting, compiling, maintaining and 23 disseminating criminal history record information. 24 (8) (6) Appoint such employees and agents as it may deem <-- 25 necessary. 26 (9) Define which noncriminal justice agencies may have <-- 27 access to criminal history record information as provided in 28 section 302. 29 (10) Carry out all other powers, duties and 30 responsibilities given to it by this act. 19780H2095B3939 - 25 -
1 CHAPTER 8 2 PUBLIC NOTICE 3 Section 801. Requirements of repositories relating to public 4 notice. 5 Repositories maintaining criminal history record information 6 shall inform the public and post in a public place, notice of 7 the existence, purpose, use and accessibility of the criminal 8 history record information they maintain and the requirements of 9 the repository for identification on individual access and 10 review. 11 CHAPTER 9 12 SANCTIONS 13 Section 901. General administrative sanctions. 14 Any person, including any agency or organization, who 15 violates the provisions of this act or any regulations or rules 16 promulgated under it may: 17 (1) Be denied access to specified criminal history 18 record information for such period of time as the Privacy and <-- 19 Security Council ATTORNEY GENERAL deems appropriate. <-- 20 (2) Be subject to civil or criminal penalties or other 21 remedies as provided for in this act. 22 (3) In the case of an employee of any agency who 23 violates any provision of this act may be administratively 24 disciplined by discharge, suspension, reduction in grade, 25 transfer or other formal disciplinary action as the agency 26 deems appropriate. 27 Section 902. Criminal penalties. 28 A person employed by a government agency commits a 29 misdemeanor of the third degree, if such person: 30 (1) knowingly requests, obtains or seeks to obtain 19780H2095B3939 - 26 -
1 criminal history record information in violation of this act;
2 or
3 (2) disseminates, maintains or uses criminal history
4 record information knowing such dissemination, maintenance or
5 use to be in violation of this act.
6 Section 903. Civil actions.
7 (a) The Privacy and Security Council, through the Attorney <--
8 General, or any other individual or agency may institute an
9 action in a court of proper jurisdiction against any person,
10 agency or organization to enjoin any criminal justice agency,
11 noncriminal justice agency, organization or individual violating
12 the provisions of this act or to compel such agency,
13 organization or person to comply with the provisions of this
14 act.
15 (b) (1) Any person aggrieved by a violation of the
16 provisions of this act or of the rules and regulations
17 promulgated hereunder, shall have the substantive right to
18 bring an action for damages by reason of such violation in a
19 court of competent jurisdiction.
20 (2) A person found, by the court, to have been aggrieved
21 by a violation of this act or the rules or regulations
22 promulgated hereunder, shall be entitled to actual and real
23 damages of not less than $100 for each violation and to
24 reasonable costs of litigation and attorney's fees. Exemplary
25 and punitive damages of not less than $1,000 nor more than
26 $10,000 shall be imposed for any violation of this act, or
27 the rules or regulations adopted hereunder, found to be
28 willful.
29 CHAPTER 10
30 EFFECTIVE DATE AND REPEALER
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1 Section 1001. Repealer. 2 All acts and parts of acts are repealed insofar as they are 3 inconsistent herewith. 4 Section 1002. Effective date. 5 (a) This act shall take effect in 90 days except Chapter 7 <-- 6 and section 202 which shall take effect on July 1, 1979. 7 (b) Required expungement provision in section 303 302 (a)(1) <-- 8 is not applicable to criminal proceedings initiated or completed 9 prior to the effective date of this act unless requested by the 10 individual as provided in Chapter 6. B6L10CVV/19780H2095B3939 - 28 -