CHAPTER 97
SENATE BILL No. 209*
An Act concerning crimes, criminal procedure and
punishment; enacting the
national crime prevention and privacy compact.
Be it enacted by the Legislature of the State of Kansas:
Section 1. The National Crime
Prevention and Privacy Compact is
hereby ratified, enacted into law and entered into with all
jurisdictions
legally joining in the Compact, in substantially the form set forth
in this
section.
Article I. Definitions
As used in this Compact, the following
definitions apply:
(1) ``Attorney General'' means the
Attorney General of the United
States.
(2) ``Compact officer'' means:
(a) With respect to the Federal
Government, an official so designated
by the Director of the FBI; and
(b) With respect to a party state, the
chief administrator of the state's
criminal history record repository or a designee of the chief
administrator
who is a regular full-time employee of the repository.
(3) ``Council'' means the Compact Council
established under Article
VI.
(4) ``Criminal history record
repository'' means the state agency des-
ignated by the governor or other appropriate executive official or
the
legislature of a state to perform centralized recordkeeping
functions for
criminal history records and services in the state.
(5) (a) ``Criminal history records''
means information collected by
criminal justice agencies on individuals consisting of identifiable
descrip-
tions and notations of arrests, detentions, indictments, or other
formal
criminal charges and any disposition arising therefrom, including
acquit-
tal, sentencing, correctional supervision, or release.
(b) The term does not include
identification information such as fin-
gerprint records if the information does not indicate involvement
of the
individual with the criminal justice system.
(6) ``Criminal justice'' includes
activities relating to the detection, ap-
prehension, detention, pretrial release, post trial release,
prosecution, ad-
judication, correctional supervision, or rehabilitation of accused
persons
or criminal offenders. The administration of criminal justice
includes
criminal identification activities and the collection, storage, and
dissemi-
nation of criminal history records.
(7) (a) ``Criminal justice agency''
means:
(i) Courts; and
(ii) A governmental agency or any subunit
of an agency that performs
the administration of criminal justice pursuant to a statute or
executive
order and allocates a substantial part of its annual budget to the
admin-
istration of criminal justice.
(b) The term includes federal and state
inspector general offices.
(8) ``Criminal justice services'' means
services provided by the FBI
to criminal justice agencies in response to a request for
information about
a particular individual or as an update to information previously
provided
for criminal justice purposes.
(9) ``Direct access'' means access to the
national identification index
by computer terminal or other automated means not requiring the
assis-
tance of or intervention by any other party or agency.
(10) ``Executive order'' means an order
of the President of the United
States or the chief executive officer of a state that has the force
of law
and that is promulgated in accordance with applicable law.
(11) ``FBI'' means the Federal Bureau of
Investigation.
(12) (a) ``III System'' means the
Interstate Identification Index Sys-
tem, which is the cooperative federal-state system for the exchange
of
criminal history records.
(b) The term includes the national
identification index, the national
fingerprint file, and to the extent of their participation in the
system, the
criminal history record repositories of the states and the FBI.
(13) ``National fingerprint file'' means
a database of fingerprints or of
other uniquely personal identifying information that relates to an
arrested
or charged individual and that is maintained by the FBI to provide
pos-
itive identification of record subjects indexed in the III
System.
(14) ``National identification index''
means an index maintained by
the FBI consisting of names, identifying numbers, and other
descriptive
information relating to record subjects about whom there are
criminal
history records in the III System.
(15) ``National indices'' means the
national identification index and
the national fingerprint file.
(16) ``Noncriminal justice purposes''
means uses of criminal history
records for purposes authorized by federal or state law other than
pur-
poses relating to criminal justice activities, including employment
suita-
bility, licensing determinations, immigration and naturalization
matters,
and national security clearances.
(17) ``Nonparty state'' means a state
that has not ratified this Com-
pact.
(18) ``Party state'' means a state that
has ratified this Compact.
(19) ``Positive identification'' means a
determination, based upon a
comparison of fingerprints or other equally reliable biometric
identifica-
tion techniques, that the subject of a record search is the same
person as
the subject of a criminal history record or records indexed in the
III
System. Identifications based solely upon a comparison of subjects'
names
or other nonunique identification characteristics or numbers, or
combi-
nations thereof, does not constitute positive identification.
(20) ``Sealed record information''
means:
(a) With respect to adults, that portion
of a record that is:
(i) Not available for criminal justice
uses;
(ii) Not supported by fingerprints or
other accepted means of positive
identification; or
(iii) Subject to restrictions on
dissemination for noncriminal justice
purposes pursuant to a court order related to a particular subject
or pur-
suant to a federal or state statute that requires action on a
sealing petition
filed by a particular record subject; and
(b) With respect to juveniles, whatever
each state determines is a
sealed record under its own law and procedure.
(21) ``State'' means any state,
territory, or possession of the United
States, the District of Columbia, and the Commonwealth of Puerto
Rico.
Article II. Purposes
The purposes of this Compact are to:
(1) Provide a legal framework for the
establishment of a cooperative
federal-state system for the interstate and federal-state exchange
of crim-
inal history records for noncriminal justice uses;
(2) Require the FBI to permit use of the
national identification index
and the national fingerprint file by each party state and to
provide, in a
timely fashion, federal and state criminal history records to
requesting
states, in accordance with the terms of this Compact and with
rules, pro-
cedures, and standards established by the Council under Article
VI;
(3) Require party states to provide
information and records for the
national identification index and the national fingerprint file and
to pro-
vide criminal history records, in a timely fashion, to criminal
history rec-
ord repositories of other states and the Federal Government for
noncri-
minal justice purposes, in accordance with the terms of this
Compact and
with rules, procedures, and standards established by the Council
under
Article VI;
(4) Provide for the establishment of a
Council to monitor III System
operations and to prescribe system rules and procedures for the
effective
and proper operation of the III System for noncriminal justice
purposes;
and
(5) Require the FBI and each party state
to adhere to III System
standards concerning record dissemination and use, response times,
sys-
tem security, data quality, and other duly established standards,
including
those that enhance the accuracy and privacy of such records.
Article III. Responsibilities of Compact Parties
(1) The Director of the FBI shall:
(a) Appoint an FBI Compact officer who
shall:
(i) Administer this Compact within the
Department of Justice and
among federal agencies and other agencies and organizations that
submit
search requests to the FBI pursuant to Article V(3);
(ii) Ensure that Compact provisions and
rules, procedures, and stan-
dards prescribed by the Council under Article VI are complied with
by
the Department of Justice and the federal agencies and other
agencies
and organizations referred to in subsection (1)(a)(i) of this
Article III; and
(iii) Regulate the use of records
received by means of the III System
from party states when such records are supplied by the FBI
directly to
other federal agencies;
(b) Provide to federal agencies and to
state criminal history record
repositories criminal history records maintained in its database
for the
noncriminal justice purposes described in Article IV,
including:
(i) Information from nonparty states;
and
(ii) Information from party states that
is available from the FBI
through the III System, but is not available from the party state
through
the III System;
(c) Provide a telecommunications network
and maintain centralized
facilities for the exchange of criminal history records for both
criminal
justice purposes and the noncriminal justice purposes described in
Article
IV and ensure that the exchange of the records for criminal justice
pur-
poses has priority over exchange for noncriminal justice purposes;
and
(d) Modify or enter into user agreements
with nonparty state criminal
history record repositories to require them to establish record
request
procedures conforming to those prescribed in Article V.
(2) Each party state shall:
(a) Appoint a Compact officer who
shall:
(i) Administer this Compact within that
state;
(ii) Ensure that Compact provisions and
rules, procedures, and stan-
dards established by the Council under Article VI are complied with
in
the state; and
(iii) Regulate the in-state use of
records received by means of the III
System from the FBI or from other party states;
(b) Establish and maintain a criminal
history record repository, which
shall provide:
(i) Information and records for the
national identification index and
the national fingerprint file; and
(ii) The state's III System-indexed
criminal history records for non-
criminal justice purposes described in Article IV;
(c) Participate in the national
fingerprint file; and
(d) Provide and maintain
telecommunications links and related
equipment necessary to support the criminal justice services set
forth in
this Compact.
(3) In carrying out their
responsibilities under this Compact, the FBI
and each party state shall comply with III System rules,
procedures, and
standards duly established by the Council concerning record
dissemina-
tion and use, response times, data quality, system security,
accuracy, pri-
vacy protection, and other aspects of III System operation.
(4) (a) Use of the III System for
noncriminal justice purposes au-
thorized in this Compact must be managed so as not to diminish the
level
of services provided in support of criminal justice purposes.
(b) Administration of Compact provisions
may not reduce the level
of service available to authorized noncriminal justice users on the
effective
date of this Compact.
Article IV. Authorized Record Disclosures
(1) To the extent authorized by section
552a of Title 5, United States
Code (commonly known as the Privacy Act of 1974), the FBI shall
provide
on request criminal history records, excluding sealed record
information,
to state criminal history record repositories for noncriminal
justice pur-
poses allowed by federal statute, federal executive order, or a
state statute
which has been approved by the Attorney General and which
authorizes
national indices checks.
(2) The FBI, to the extent authorized by
section 552a of Title 5,
United States Code (commonly known as the Privacy Act of 1974),
and
state criminal history record repositories shall provide criminal
history
records, excluding sealed record information, to criminal justice
agencies
and other governmental or nongovernmental agencies for
noncriminal
justice purposes allowed by federal statute, federal executive
order, or a
state statute that has been approved by the Attorney General, that
ex-
plicitly authorizes national indices checks.
(3) Any record obtained under this
Compact may be used only for
the official purposes for which the record was requested. Each
Compact
officer shall establish procedures, consistent with this Compact
and with
rules, procedures, and standards established by the Council under
Article
VI, which procedures shall protect the accuracy and privacy of the
records
and shall:
(a) Ensure that records obtained under
this Compact are used only
by authorized officials for authorized purposes;
(b) Require that subsequent record checks
are requested to obtain
current information whenever a new need arises; and
(c) Ensure that record entries that may
not legally be used for a par-
ticular noncriminal justice purpose are deleted from the response
and, if
no information authorized for release remains, an appropriate ``no
record''
response is communicated to the requesting official.
Article V. Record Request Procedures
(1) Subject fingerprints or other
approved forms of positive identifi-
cation must be submitted with all requests for criminal history
record
checks for noncriminal justice purposes.
(2) Each request for a criminal history
record check utilizing the na-
tional indices made under any approved state statute must be
submitted
through that state's criminal history record repository. A state
criminal
history record repository shall process an interstate request for
noncri-
minal justice purposes through the national indices only if the
request is
transmitted through another state criminal history record
repository or
the FBI.
(3) Each request for criminal history
record checks utilizing the na-
tional indices made under federal authority must be submitted
through
the FBI or, if the state criminal history record repository
consents to
process fingerprint submissions, through the criminal history
record re-
pository in the state in which the request originated. Direct
access to the
national identification index by entities other than the FBI and
state crim-
inal history records repositories may not be permitted for
noncriminal
justice purposes.
(4) A state criminal history record
repository or the FBI:
(a) May charge a fee, in accordance with
applicable law, for handling
a request involving fingerprint processing for noncriminal justice
pur-
poses; and
(b) May not charge a fee for providing
criminal history records in
response to an electronic request for a record that does not
involve a
request to process fingerprints.
(5) (a) If a state criminal history
record repository cannot positively
identify the subject of a record request made for noncriminal
justice pur-
poses, the request, together with fingerprints or other approved
identi-
fying information, must be forwarded to the FBI for a search of
the
national indices.
(b) If, with respect to a request
forwarded by a state criminal history
record repository under subsection (5)(a), the FBI positively
identifies
the subject as having a III System-indexed record or records:
(i) The FBI shall so advise the state
criminal history record repository;
and
(ii) The state criminal history record
repository is entitled to obtain
the additional criminal history record information from the FBI or
other
state criminal history record repositories.
Article VI. Establishment of Compact Council
(1) (a) There is established a Council to
be known as the Compact
Council, which has the authority to promulgate rules and
procedures
governing the use of the III System for noncriminal justice
purposes, not
to conflict with FBI administration of the III System for criminal
justice
purposes.
(b) The Council shall:
(i) Continue in existence as long as this
Compact remains in effect;
(ii) Be located, for administrative
purposes, within the FBI; and
(iii) Be organized and hold its first
meeting as soon as practicable
after the effective date of this Compact.
(2) The Council must be composed of 15
members, each of whom
must be appointed by the Attorney General, as follows:
(a) Nine members, each of whom shall
serve a 2-year term, who must
be selected from among the Compact officers of party states based
on
the recommendation of the Compact officers of all party states,
except
that in the absence of the requisite number of Compact officers
available
to serve, the chief administrators of the criminal history record
reposi-
tories of nonparty states must be eligible to serve on an interim
basis;
(b) Two at-large members, nominated by
the Director of the FBI,
each of whom shall serve a 3-year term, of whom:
(i) One must be a representative of the
criminal justice agencies of
the Federal Government and may not be an employee of the FBI;
and
(ii) One must be a representative of the
noncriminal justice agencies
of the Federal Government;
(c) Two at-large members, nominated by
the Chairman of the Coun-
cil once the Chairman is elected pursuant to subsection (3) of this
Article
VI, each of whom shall serve a 3-year term, of whom:
(i) One must be a representative of state
or local criminal justice
agencies; and
(ii) One must be a representative of
state or local noncriminal justice
agencies;
(d) One member who shall serve a 3-year
term and who shall simul-
taneously be a member of the FBI's advisory policy board on
criminal
justice information services, nominated by the membership of that
policy
board; and
(e) One member, nominated by the Director
of the FBI, who shall
serve a 3-year term and who must be an employee of the FBI.
(3) (a) From its membership, the Council
shall elect a Chairman and
a Vice Chairman of the Council. Both the Chairman and Vice
Chairman
of the Council:
(i) Must be a Compact officer, unless
there is no Compact officer on
the Council who is willing to serve, in which case the Chairman may
be
an at-large member; and
(ii) Shall serve 2-year terms and may be
reelected to only one addi-
tional 2-year term.
(b) The Vice Chairman of the Council
shall serve as the Chairman of
the Council in the absence of the Chairman.
(4) (a) The Council shall meet at least
once each year at the call of
the Chairman. Each meeting of the Council must be open to the
public.
The Council shall provide prior public notice in the Federal
Register of
each meeting of the Council, including the matters to be addressed
at
the meeting.
(b) A majority of the Council or any
committee of the Council shall
constitute a quorum of the Council or of a committee, respectively,
for
the conduct of business. A lesser number may meet to hold hearings,
take
testimony, or conduct any business not requiring a vote.
(5) The Council shall make available for
public inspection and cop-
ying at the Council office within the FBI and shall publish in the
Federal
Register any rules, procedures, or standards established by the
Council.
(6) The Council may request from the FBI
reports, studies, statistics,
or other information or materials that the Council determines to be
nec-
essary to enable the Council to perform its duties under this
Compact.
The FBI, to the extent authorized by law, may provide assistance or
in-
formation upon a request.
(7) The Chairman may establish committees
as necessary to carry out
this Compact and may prescribe their membership, responsibilities,
and
duration.
Article VII. Ratification of Compact
This Compact takes effect upon being entered
into by two or more
states as between those states and the Federal Government. When
ad-
ditional states subsequently enter into this Compact, it becomes
effective
among those states and the Federal Government and each party state
that
has previously ratified it. When ratified, this Compact has the
full force
and effect of law within the ratifying jurisdictions. The form of
ratification
must be in accordance with the laws of the executing state.
Article VIII. Miscellaneous Provisions
(1) Administration of this Compact may
not interfere with the man-
agement and control of the Director of the FBI over the FBI's
collection
and dissemination of criminal history records and the advisory
function
of the FBI's advisory policy board chartered under the Federal
Advisory
Committee Act (5 U.S.C. App.) for all purposes other than
noncriminal
justice.
(2) Nothing in this Compact requires the
FBI to obligate or expend
funds beyond those appropriated to the FBI.
(3) Nothing in this Compact diminishes or
lessens the obligations,
responsibilities, and authorities of any state, whether a party
state or a
nonparty state, or of any criminal history record repository or
other sub-
division or component thereof, under the Departments of State,
Justice,
and Commerce, the Judiciary, and Related Agencies Appropriation
Act,
1973 (Public Law 92-544), or regulations and guidelines
promulgated
thereunder, including the rules and procedures promulgated by
the
Council under Article VI(1), regarding the use and dissemination of
crim-
inal history records and information.
Article IX. Renunciation
(1) This Compact shall bind each party
state until renounced by the
party state.
(2) Any renunciation of this Compact by a
party state must:
(a) Be effected in the same manner by
which the party state ratified
this Compact; and
(b) Become effective 180 days after
written notice of renunciation is
provided by the party state to each other party state and to the
Federal
Government.
Article X. Severability
The provisions of this Compact are severable.
If any phrase, clause,
sentence, or provision of this Compact is declared to be contrary
to the
constitution of any participating state or to the Constitution of
the United
States or if the applicability of any phrase, clause, sentence, or
provision
of this Compact to any government, agency, person, or circumstance
is
held invalid, the validity of the remainder of this Compact and the
ap-
plicability of the remainder of the Compact to any government,
agency,
person, or circumstance is not affected by the severability. If a
portion of
this Compact is held contrary to the constitution of any party
state, all
other portions of this Compact remain in full force and effect as
to the
remaining party states and in full force and effect as to the party
state
affected, as to all other provisions.
Article XI. Adjudication of Disputes
(1) The Council:
(a) Has initial authority to make
determinations with respect to any
dispute regarding:
(i) Interpretation of this Compact;
(ii) Any rule or standard established by
the Council pursuant to Ar-
ticle VI; and
(iii) Any dispute or controversy between
any parties to this Compact;
and
(b) Shall hold a hearing concerning any
dispute described in subsec-
tion (1)(a) at a regularly scheduled meeting of the Council and
only render
a decision based upon a majority vote of the members of the
Council.
The decision must be published pursuant to the requirements of
Article
VI(5).
(2) The FBI shall exercise immediate and
necessary action to pre-
serve the integrity of the III System, to maintain system policy
and stan-
dards, to protect the accuracy and privacy of records, and to
prevent
abuses until the Council holds a hearing on the matters.
(3) The FBI or a party state may appeal
any decision of the Council
to the Attorney General and after that appeal may file suit in the
appro-
priate District Court of the United States that has original
jurisdiction of
all cases or controversies arising under this Compact. Any suit
arising
under this Compact and initiated in a state court must be removed
to the
appropriate District Court of the United States in the manner
provided
by section 1446 of Title 28, United States Code, or other statutory
au-
thority.
Sec. 2. This act shall take effect and be in force
from and after its
publication in the Kansas register.
Approved April 10, 2001.
Published in the Kansas Register April 19, 2001.
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