AS Title 12, Chapter 62: Criminal Justice Information and Records Checks

Article 1. Criminal Justice Information. Chapter 62. Criminal Justice Information and Records Checks. Sec. 12.62.005. Intent. It is the intent of the legislature that the department administer the provisions of this chapter in a manner that protects victims of crime, allows the proper administration of justice, and avoids vigilantism. Secs. 12.62.010 — 12.62.015. Regulations; collection and security of information. [Repealed, § 4 ch 118 SLA 1994. For current law, see AS 12.62.110 — 12.62.150.] Sec. 12.62.017. Annual report to commission. [Repealed, § 35 ch 126 SLA 1994.] Secs. 12.62.020 — 12.62.035. Collection, storage, access, and use. [Repealed, § 4 ch 118 SLA 1994. For current law, see AS 12.62.160 .] Secs. 12.62.040 — 12.62.070. Security, updating; interstate exchange of information; remedies; definitions. [Repealed, § 4 ch 118 SLA 1994. For current law, see AS 12.62.170 — 12.62.190.] Sec. 12.62.100. Criminal justice information advisory board; functions and duties. Sec. 12.62.105. Duties of the department regarding criminal justice information. The department shall advise criminal justice agencies on matters pertaining to the development and operation of the central repository described in AS 12.62.110 (1) and other criminal justice information systems, including providing advice about regulations and procedures, and estimating the resources and costs of those resources, needed to carry out the provisions of this chapter. Sec. 12.62.110. Duties of the commissioner regarding information systems. The commissioner shall (1) develop and operate a criminal justice information system to serve as the state's central repository of criminal history record information, and to collect, store, and release criminal justice information as provided in this chapter; (2) provide a uniform crime reporting system for the periodic collection, analysis, and reporting of crimes, and compile and publish statistics and other information on the nature and extent of crime in the state; (3) cooperate with other agencies of the state, the criminal record repositories of other states, the Interstate Identification Index, the National Law Enforcement Telecommunications System, the National Crime Information Center, and other appropriate agencies or systems, in the development and operation of an effective interstate, national, and international system of criminal identification, records, and statistics; and (4) in accordance with AS 44.62 (Administrative Procedure Act), adopt regulations necessary to implement the provisions of this chapter; in adopting the regulations, the commissioner may consult with affected law enforcement agencies regarding the fiscal implications of the regulations; regulations may not be adopted under this section that affect procedures of the court system. Sec. 12.62.120. Reporting of criminal justice information. (a) The commissioner, by regulation and after consultation with affected agencies, may designate which criminal justice agencies are responsible for reporting the events described in (b) of this section. An agency designated under this subsection shall report the events described in (b) of this section to the department, at the time, in the manner, and in the form specified by the department. (b) An agency designated under (a) of this section shall report the following events to the department if they occur in connection with an arrestable offense: (1) the issuance, receipt, withdrawal, quashing, or execution of a judicial arrest warrant, a governor's warrant of arrest for extradition, or a parole arrest warrant; (2) an arrest, with or without a warrant, or an escape after arrest; (3) the release of a person after arrest without charges being filed; (4) the admittance to, release or escape from, or unlawful evasion of, official detention in a correctional facility, either pretrial or post-trial; (5) a decision by a prosecutor or a grand jury not to commence criminal proceedings, to defer or indefinitely postpone prosecution, or to decline to prosecute charges; (6) the filing of a charging document, including an indictment, criminal complaint, criminal information, or a petition or other document showing a violation of bail, probation, or parole, or the amendment of a charging document; (7) an acquittal, dismissal, conviction, or other disposition of charges set out in a charging document described in (6) of this subsection; (8) the imposition of a sentence or the granting of a suspended imposition of sentence under AS 12.55.085 ; (9) the commencement or expiration of parole or probation supervision and the conditions of that parole or probation supervision; (10) the commitment to or release from a facility, designated by the Department of Family and Community Services, of a person who was previously accused of a crime but who has been found to be incompetent to stand trial or found not criminally responsible; (11) the filing of an action in an appellate court or a federal court relating to a conviction or sentence; (12) a judgment of a court that reverses, remands, vacates, or reinstates a criminal charge, conviction, or sentence; (13) a pardon, reprieve, executive clemency, commutation of sentence, or other change in the length or terms of a sentence by executive or judicial action; (14) the release of a person on bail and the conditions of that release; and (15) any other event required to be reported under regulations adopted under this chapter. Sec. 12.62.130. Reporting of uniform crime information. A criminal justice agency shall submit to the department, at the time, in the manner, and in the form specified by the department, data regarding crimes committed within that agency's jurisdiction. At a minimum, the department shall require a criminal justice agency to report each felony sex offense committed in the agency's jurisdiction. The department may withhold grant funding to a criminal justice agency that fails to report data as required by this section. The department shall compile, and provide to the governor and the attorney general, an annual report concerning the number and nature of criminal offenses committed, the disposition of the offenses, and any other data the commissioner finds appropriate relating to the method, frequency, cause, and prevention of crime. In this section, “sex offense” has the meaning given in AS 12.63.100 . Sec. 12.62.140. Reporting of information regarding wanted persons and stolen property. (a) A criminal justice agency shall report to the department, at the time, in the manner, and in the form specified by the department, data regarding (1) a person the agency is trying to locate, whether that person is wanted in connection with the commission of a crime, and the discovery, if any, of that person; (2) the theft, and recovery if any, of an identifiable motor vehicle; and (3) the theft, and recovery if any, of identifiable property. (b) A criminal justice agency, annually and at other times if requested by the department, shall confirm whether information already reported under (a) of this section continues to be valid, and shall cooperate with the department in periodic audits to validate the information reported. Sec. 12.62.150. Completeness, accuracy, and security of criminal justice information. (a) A criminal justice agency shall (1) adopt reasonable procedures to ensure that criminal justice information that the agency maintains is accurate and complete; (2) notify a criminal justice agency known to have received information of a material nature that is inaccurate or incomplete; (3) provide adequate procedures and facilities to protect criminal justice information from unauthorized access and from accidental or deliberate damage by theft, sabotage, fire, flood, wind, or power failure; (4) provide procedures for screening, supervising, and disciplining agency personnel in order to minimize the risk of security violations; (5) provide training for employees working with or having access to criminal justice information; (6) if maintaining criminal justice information within an automated information system operated by a noncriminal justice agency, develop or approve system operating procedures to comply with this chapter or regulations adopted under this chapter, and monitor the implementation of those procedures to ensure that they are effective; and (7) maintain, for at least three years, and make available for audit purposes, (A) records showing the accuracy and completeness of information maintained by the agency in a criminal justice information system; and (B) records required to be maintained under AS 12.62.160 (c)(4). (b) The department shall adopt reasonable procedures designed to ensure that information about arrests and criminal charges that is stored in a criminal justice information system can be linked with information about the disposition of those arrests and charges. (c) Every two years the department shall undertake an audit, and every four years shall obtain an independent audit, of the department's criminal justice information system that serves as the central repository and of a sample of other state and local criminal justice information systems, to verify adherence to the requirements of this chapter and other applicable laws. Sec. 12.62.160. Release and use of criminal justice information; fees. (a) Criminal justice information and the identity of recipients of criminal justice information are confidential and exempt from disclosure under AS 40.25 . The existence or nonexistence of criminal justice information may not be released to or confirmed to any person except as provided in this section and AS 12.62.180 (d). (b) Subject to the requirements of this section, and except as otherwise limited or prohibited by other provision of law or court rule, criminal justice information (1) may be provided to a person when, and only to the extent, necessary to avoid imminent danger to life or extensive damage to property; (2) may be provided to a person to the extent required by applicable court rules or under an order of a court of this state, another state, or the United States; (3) may be provided to a person if the information is commonly or traditionally provided by criminal justice agencies in order to identify, locate, or apprehend fugitives or wanted persons or to recover stolen property, or for public reporting of recent arrests, charges, and other criminal justice activity; (4) may be provided to a criminal justice agency for a criminal justice activity; (5) may be provided to a government agency when necessary for enforcement of or for a purpose specifically authorized by state or federal law; (6) may be provided to a person specifically authorized by a state or federal law to receive that information; (7) in aggregate form may be released to a qualified person, as determined by the agency, for criminal justice research, subject to written conditions that assure the security of the information and the privacy of individuals to whom the information relates; (8) may be provided to a person for any purpose, except that information may not be released if the information is nonconviction information or correctional treatment information; (9) including information relating to a serious offense, may be provided to an interested person if the information is requested for the purpose of determining whether to grant a person supervisory or disciplinary power over a minor or dependent adult; and (10) may be provided to the person who is the subject of the information. (c) Unless otherwise provided for in regulations adopted by the commissioner, if access to criminal justice information is permitted under (b) of this section (1) the information may be released only by the agency maintaining that information; (2) the information may not be released under this section without first determining that the information is the most current information available within that criminal justice information system, unless the system is incapable of providing the most current information available within the necessary time period; (3) the information may not be released under this section until the person requesting the information establishes the identity of the subject of the information by fingerprint comparison or another reliable means of identification approved by the department; (4) the information may not be released under this section unless the criminal justice agency releasing the information records, and maintains for at least three years, the name of the person or agency that is to receive the information, the date the information was released, the nature of the information, and the statutory authority that permits the release; and (5) information released under this section may be used only for the purpose or activity for which the information was released. (d) Notwithstanding AS 40.25 , a criminal justice agency may charge fees, established by regulation or municipal ordinance, for processing requests for records under this chapter, unless the request is from a criminal justice agency or is required for purposes of discovery in a criminal case. In addition to fees charged under AS 44.41.025 for processing fingerprints through the Alaska automated fingerprint system, the department may charge fees for other services in connection with the processing of information requests, including fees for contacting other jurisdictions to determine the disposition of an out-of-state arrest or to clarify the nature of an out-of-state conviction. The department may also collect and account for fees charged by the Federal Bureau of Investigation for processing fingerprints forwarded to the bureau by the department. The annual estimated balance in the account maintained by the commissioner of administration under AS 37.05.142 may be used by the legislature to make appropriations to the department to carry out the purposes of this chapter. (e) When an interested person requests information under (b)(9) of this section, the department may also obtain a national criminal history record check under AS 12.62.400 if the person submits the fingerprints and fees required for that check under (d) of this section. Sec. 12.62.170. Correction of criminal justice information. (a) A criminal justice agency shall correct, modify, or add an explanatory notation to criminal history records that the agency is responsible for maintaining if the revision is necessary to achieve accuracy or completeness. (b) A person may submit a written request to the head of the agency responsible for maintaining criminal justice information asking the agency to correct, modify, or add any information or explanatory notation to criminal justice information about the person that the person believes is inaccurate or incomplete. The decision of the head of the agency is the final administrative decision on the request. (c) The person requesting revision of criminal justice information may appeal an adverse decision of the agency to the court under applicable rules of procedure for appealing the decision of an administrative agency. The appellant bears the burden on appeal of showing that the agency decision was in error. An appeal filed under this subsection may not collaterally attack a court judgment or a decision by prison, probation, or parole authorities, or any other action that is or could have been subject to appeal, post-conviction relief, or other administrative remedy. Sec. 12.62.180. Sealing of criminal justice information. (a) Under this section, a criminal justice agency may seal only the information that the agency is responsible for maintaining. (b) A person may submit a written request to the head of the agency responsible for maintaining past conviction or current offender information, asking the agency to seal such information about the person that, beyond a reasonable doubt, resulted from mistaken identity or false accusation. The decision of the head of the agency is the final administrative decision on the request. (c) The person requesting that the information be sealed may appeal an adverse decision of the agency to the court under applicable rules of procedure for appealing the decision of an administrative agency. The appellant bears the burden on appeal of showing that the agency decision was clearly mistaken. An appeal filed under this subsection may not collaterally attack a court judgment or a decision by prison, probation, or parole authorities, or any other action that is or could have been subject to appeal, post-conviction relief, or other administrative remedy. (d) A person about whom information is sealed under this section may deny the existence of the information and of an arrest, charge, conviction, or sentence shown in the information. Information that is sealed under this section may be provided to another person or agency only (1) for record management purposes, including auditing; (2) for criminal justice employment purposes; (3) for review by the subject of the record; (4) for research and statistical purposes; (5) when necessary to prevent imminent harm to a person; or (6) for a use authorized by statute or court order. Sec. 12.62.190. Purging of criminal justice information. (a) A criminal justice agency may purge only the criminal justice information that the agency is responsible for maintaining. An agency may determine when and what information will be purged, under (b) of this section. (b) Criminal justice information may be purged if the agency determines that the information is devoid of usefulness to a criminal justice agency due to the (1) death of the subject of the information; (2) age of the information; (3) nature of the offense or of the information; (4) volume of the agency's records or other record management considerations. Sec. 12.62.200. Civil action and defense. (a) Failure to comply with a requirement of this chapter or a regulation adopted under this chapter is not a basis for civil liability, but may be the basis for employee discipline or administrative action to restrict a person's or agency's access to information. However, a person whose criminal justice information has been released or used in knowing violation of this chapter or a regulation adopted under this chapter may bring an action for damages in the superior court. (b) It is a defense to a civil or criminal action based on a violation of this chapter, or regulations adopted under this chapter, if a person relied in good faith upon the provisions of this chapter or of other laws or regulations governing maintenance, release, or use of criminal justice information, or upon policies or procedures established by a criminal justice agency. Article 2. National Criminal History Record Check. Sec. 12.62.400. National criminal history record checks for employment, licensing, and other noncriminal justice purposes. (a) To obtain a national criminal history record check for determining a person's qualifications for a license, permit, registration, employment, or position, a person shall submit the person's fingerprints to the department with the fee established by AS 12.62.160 . The department may submit the fingerprints to the Federal Bureau of Investigation to obtain a national criminal history record check of the person for the purpose of evaluating a person's qualifications for (1) a license or conditional contractor's permit to manufacture, sell, offer for sale, possess for sale or barter, traffic in, or barter an alcoholic beverage under AS 04.09 ; (2) licensure as a mortgage lender, a mortgage broker, or a mortgage loan originator under AS 06.60 ; (3) admission to the Alaska Bar Association under AS 08.08 ; (4) licensure to practice audiology or speech-language pathology under AS 08.11 ; (5) licensure as a collection agency operator under AS 08.24 ; (6) a certificate of fitness to handle explosives under AS 08.52 ; (7) licensure as a massage therapist under AS 08.61 ; (8) licensure to practice nursing or certification as a nurse aide under AS 08.68 ; (9) licensure as a pharmacist or pharmacy technician under AS 08.80 ; (10) licensure as a physical therapist, physical therapist assistant, occupational therapist, or occupational therapy assistant under AS 08.84 ; (11) certification as a real estate appraiser under AS 08.87 ; (12) a position involving supervisory or disciplinary power over a minor or dependent adult for which criminal justice information may be released under AS 12.62.160 (b)(9); (13) a teacher certificate under AS 14.20 ; (14) a registration or license to operate a marijuana establishment under AS 17.38 ; (15) admittance to a police training program under AS 18.65.230 or for certification as a police officer under AS 18.65.240 if that person's prospective employer does not have access to a criminal justice information system; (16) licensure as a security guard under AS 18.65.400 — 18.65.490; (17) employment as a village public safety officer under AS 18.65.672 or certification as a village public safety officer under AS 18.65.682 ; (18) a concealed handgun permit under AS 18.65.700 — 18.65.790; (19) licensure as an insurance producer, managing general agent, reinsurance intermediary broker, reinsurance intermediary manager, surplus lines broker, or independent adjuster under AS 21.27 ; (20) serving and executing process issued by a court by a person designated under AS 22.20.130 ; (21) a school bus driver license under AS 28.15.046 ; (22) licensure as an operator or an instructor for a commercial driver training school under AS 28.17 ; (23) registration as a broker-dealer, agent, investment adviser representative, or investment adviser under AS 45.56.300 — 45.56.350; (24) licensure, license renewal, certification, certification renewal, or payment from the Department of Health of an individual and an entity subject to the requirements for a criminal history check under AS 47.05.310 , including (A) a public home care provider described in AS 47.05.017 ; (B) a provider of home and community-based waiver services financed under AS 47.07.030 (c); (C) a case manager to coordinate community mental health services under AS 47.30.530 ; (D) an entity listed in AS 47.32.010 (b) and (c), including an owner, officer, director, member, partner, employee, volunteer, or contractor of an entity; or (E) an individual or entity not described in (A) — (D) of this paragraph that is required by statute or regulation to be licensed or certified by the Department of Health or that is eligible to receive payments, in whole or in part, from the Department of Health to provide for the health, safety, and welfare of persons who are served by the programs administered by the Department of Health; (25) licensure, license renewal, certification, or certification renewal by the Department of Family and Community Services of an individual or entity, or payment from the Department of Family and Community Services to an individual or entity, subject to the requirements for a criminal history check under AS 47.05.310 for a foster home, child placement agency, and runaway shelter listed in AS 47.32.010 (c), including an owner, officer, director, member, partner, employee, volunteer, or contractor of an entity. (b) Notwithstanding (a) of this section, an applicant for a license under AS 06.60 may submit the applicant's fingerprints to the Nationwide Mortgage Licensing System and Registry. In this subsection, “Nationwide Mortgage Licensing System and Registry” has the meaning given in 12 U.S.C. 5102. (c) To obtain a national criminal history record check for determining a current or prospective employee's qualifications under AS 39.90.210 or a contractor's qualifications under AS 36.30.960 , the agency or the procurement officer shall submit the current or prospective employee's or contractor's fingerprints to the department with the fee established by AS 12.62.160 . The department shall submit the fingerprints to the Federal Bureau of Investigation to obtain a national criminal history record check of the current or prospective employee or contractor for the purpose of evaluating a person's qualifications under AS 36.30.960 and AS 39.90.210 . In this subsection, unless the context otherwise requires, (1) “agency” has the meaning given in AS 39.90.290 ; (2) “contractor” has the meaning given in AS 36.30.960 ; (3) “employee” has the meaning given in AS 39.90.290 . Article 3. General Provisions. Sec. 12.62.900. Definitions. In this chapter, (1) “agency” means a criminal justice agency; (2) “automatic data processing” has the meaning given in AS 44.21.170 ; (3) “commissioner” means the commissioner of public safety; (4) “complete” means that a criminal history record contains information about the disposition of criminal charges occurring in the state and entered within 90 days after the disposition occurred; (5) “correctional treatment information” means information about an identifiable person, excluding past conviction information or current offender information, collected to monitor that person in a correctional facility or while under correctional supervision, including the person's current or past institutional behavior, medical or psychological condition, or rehabilitative progress; (6) “crime involving domestic violence” has the meaning given in AS 18.66.990 ; (7) “criminal history record information” means information that contains (A) past conviction information; (B) current offender information; (C) criminal identification information; (8) “criminal identification information” means fingerprints, photographs, and other information or descriptions that identify a person as having been the subject of a criminal arrest or prosecution; (9) “criminal justice activity” means (A) investigation, identification, apprehension, detention, pretrial or post-trial release, prosecution, adjudication, or correctional supervision or rehabilitation of a person accused or convicted of a crime; (B) collection, storage, transmission, and release of criminal justice information; or (C) the employment of personnel engaged in activities described in (A) or (B) of this paragraph; (10) “criminal justice agency” means (A) a court with criminal jurisdiction or an employee of that court; (B) a government entity or subdivision of a government entity that allocates a substantial portion of its budget to a criminal justice activity under a law, regulation, or ordinance; or (C) an individual or organization obligated to undertake a criminal justice activity under a written agreement with an agency described in (A) or (B) of this paragraph; as used in this subparagraph, “organization” includes an interagency or interjurisdictional task force formed to further common criminal justice goals; (11) “criminal justice information” means any of the following, other than a court record, a record of traffic offenses maintained for the purpose of regulating drivers' licenses, or a record of a juvenile subject to the jurisdiction of a court under AS 47.12 : (A) criminal history record information; (B) nonconviction information; (C) correctional treatment information; (D) information relating to a person to be located, whether or not that person is wanted in connection with the commission of a crime; (12) “criminal justice information system” means an automatic data processing system used to collect, store, display, or transmit criminal justice information, and that permits information within the system, without action by the agency maintaining the information, to be directly accessed by another principal department of the state, another branch of state government, an agency of another state or the federal government, or by a political subdivision of a state or the federal government; (13) “current offender information” means information showing that an identifiable person (A) is currently under arrest for or is charged with a crime and (i) prosecution is under review or has been deferred by written or oral agreement; (ii) a warrant exists for the person's arrest; or (iii) less than a year has elapsed since the date of the arrest or filing of the charges, whichever is latest; (B) is currently released on bail or on other conditions imposed by a court in a criminal case, either pretrial or post-trial, including the conditions of the release; (C) is currently serving a criminal sentence or is under the custody of the commissioner of corrections for supervision purposes; “current offender information” under this subparagraph includes (i) the terms and conditions of any sentence, probation, suspended imposition of sentence, discretionary or mandatory parole, furlough, executive clemency, or other release; and (ii) the location of any place of incarceration, halfway house, restitution center, or other correctional placement to which the person is assigned; or (D) has had a criminal conviction or sentence reversed, vacated, set aside, or has been the subject of executive clemency; (14) “department” means the Department of Public Safety; (15) “dependent adult” means an adult with a physical or mental disability who requires assistance or supervision with the activities of daily living; (16) “information” means, unless the context clearly indicates otherwise, data compiled within a criminal justice information system; (17) “interested person” means a person as defined in AS 01.10.060 that employs, appoints, or permits a person to serve with or without compensation in a position in which the employed, appointed, or permitted person has or would have supervisory or disciplinary power over a minor or dependent adult; (18) “nonconviction information” means information that an identifiable person was arrested or that criminal charges were filed or considered against the person and (A) a prosecutor or grand jury has elected not to begin criminal proceedings against the person and at least a year has elapsed since that decision; (B) criminal charges against the person have been dismissed or the person has been acquitted and at least a year has elapsed since that action; or (C) there is no indication of the disposition of the criminal charges or the arrest and at least a year has elapsed since the arrest, filing of the charges, or referral of the matter for review by a prosecutor, whichever is latest; (19) “past conviction information” means information showing that an identifiable person who has been unconditionally discharged has previously been convicted of a crime; “past conviction information” includes (A) the terms of any sentence, probation, suspended imposition of sentence, or discretionary or mandatory parole; and (B) information that a criminal conviction or sentence has been reversed, vacated, set aside, or been the subject of executive clemency; (20) “purge” means to delete or destroy information in a criminal justice information system so that there can be no access to the information; (21) “seal” means to retain information in a criminal justice information system subject to special restrictions on access or dissemination; (22) “serious offense” means a conviction for a violation or for an attempt, solicitation, or conspiracy to commit a violation of any of the following laws, or of the laws of another jurisdiction with substantially similar elements: (A) a felony offense; (B) a crime involving domestic violence; (C) AS 11.41.410 — 11.41.470; (D) AS 11.51.130 or 11.51.200 — 11.56.210; (E) AS 11.61.110 (a)(7) or 11.61.125; (F) AS 11.66.100 — 11.66.130; (G) former AS 11.15.120 , former 11.15.134, or assault with the intent to commit rape under former AS 11.15.160 ; or (H) former AS 11.40.080 , 11.40.110, 11.40.130, or 11.40.200 — 11.40.420, if committed before January 1, 1980.