HRS § 846-2.7 - Criminal history record checks

(a) The agencies and other entities named in subsections (b) and (c) may conduct state and national criminal history record checks on the personnel identified in subsections (b) and (c), and participate in the rap back program, for the purpose of determining suitability or fitness for a permit, license, employment, or volunteer service; provided that the Hawaii criminal justice data center may charge a reasonable fee for the criminal history record checks performed. The agencies and other entities named in subsections (b) and (c) shall notify applicants, employees, and volunteers subject to a criminal history record check pursuant to this section that their fingerprints shall be retained by the Hawaii criminal justice data center and the Federal Bureau of Investigation for all purposes and uses authorized for fingerprint submissions. Notification shall also be given to the applicants, employees, and volunteers subject to the rap back program. The criminal history record check shall include the submission of fingerprints to: (1) The Federal Bureau of Investigation for a national criminal history record check; and (2) The Hawaii criminal justice data center for a state criminal history record check that shall include nonconviction data. Except as otherwise provided in this section, criminal history record information shall be used exclusively for the stated purpose for which it was obtained in accordance with section 378-2.5. (b) Criminal history record checks may be conducted by: (1) The department of health or its designee on operators of adult foster homes for individuals with developmental disabilities or developmental disabilities domiciliary homes and their employees, as provided by section 321-15.2; (2) The department of health or its designee on prospective employees, persons seeking to serve as providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health or health care services as provided by section 321-171.5; (3) The department of health or its designee on all applicants for licensure or certification for, operators for, prospective employees, adult volunteers, and all adults, except adults in care, at healthcare facilities as defined in section 321-15.2; (4) The department of education on employees, prospective employees, and teacher trainees in any public school in positions that necessitate close proximity to children as provided by section 302A-601.5; (5) The counties on employees and prospective employees who may be in positions that place them in close proximity to children in recreation or child care programs and services; (6) The county liquor commissions on applicants for liquor licenses as provided by section 281-53.5; (7) The county liquor commissions on employees and prospective employees involved in liquor administration, law enforcement, and liquor control investigations; (8) The department of human services on operators and employees of child caring institutions, child placing organizations, and foster boarding homes as provided by section 346-17; (9) The department of human services on prospective adoptive parents as established under section 346‑19.7; (10) The department of human services or its designee on applicants to operate child care facilities, household members of the applicant, prospective employees of the applicant, and new employees and household members of the provider after registration or licensure as provided by section 346-154, and persons subject to section 346-152.5; (11) The department of human services on persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by section 346-152.5; (12) The department of health on operators and employees of home and community-based case management agencies and operators and other adults, except for adults in care, residing in community care foster family homes as provided by section 321-15.2; (13) The department of human services on staff members of the Hawaii youth correctional facility as provided by section 352-5.5; (14) The department of human services on employees, prospective employees, and volunteers of contracted providers and subcontractors in positions that place them in close proximity to youth when providing services on behalf of the office or the Hawaii youth correctional facility as provided by section 352D-4.3; (15) The judiciary on employees and applicants at detention and shelter facilities as provided by section 571-34; (16) The department of public safety on employees and prospective employees who are directly involved with the treatment and care of persons committed to a correctional facility or who possess police powers including the power of arrest as provided by section 353C-5; (17) The board of private detectives and guards on applicants for private detective or private guard licensure as provided by section 463-9; (18) Private schools and designated organizations on employees and prospective employees who may be in positions that necessitate close proximity to children; provided that private schools and designated organizations receive only indications of the states from which the national criminal history record information was provided pursuant to section 302C-1; (19) The public library system on employees and prospective employees whose positions place them in close proximity to children as provided by section 302A‑601.5; (20) The State or any of its branches, political subdivisions, or agencies on applicants and employees holding a position that has the same type of contact with children, vulnerable adults, or persons committed to a correctional facility as other public employees who hold positions that are authorized by law to require criminal history record checks as a condition of employment as provided by section 78-2.7; (21) The department of health on licensed adult day care center operators, employees, new employees, subcontracted service providers and their employees, and adult volunteers as provided by section 321-15.2; (22) The department of human services on purchase of service contracted and subcontracted service providers and their employees serving clients of the adult protective and community services branch, as provided by section 346-97; (23) The department of human services on foster grandparent program, senior companion program, and respite companion program participants as provided by section 346-97; (24) The department of human services on contracted and subcontracted service providers and their current and prospective employees that provide home and community-based services under section 1915(c) of the Social Security Act, title 42 United States Code section 1396n(c), or under any other applicable section or sections of the Social Security Act for the purposes of providing home and community-based services, as provided by section 346-97; (25) The department of commerce and consumer affairs on proposed directors and executive officers of a bank, savings bank, savings and loan association, trust company, and depository financial services loan company as provided by section 412:3-201; (26) The department of commerce and consumer affairs on proposed directors and executive officers of a nondepository financial services loan company as provided by section 412:3-301; (27) The department of commerce and consumer affairs on the original chartering applicants and proposed executive officers of a credit union as provided by section 412:10-103; (28) The department of commerce and consumer affairs on: (A) Each principal of every non-corporate applicant for a money transmitter license; (B) The executive officers, key shareholders, and managers in charge of a money transmitter's activities of every corporate applicant for a money transmitter license; and (C) The persons who are to assume control of a money transmitter licensee in connection with an application requesting approval of a proposed change in control of licensee, as provided by sections 489D-9 and 489D‑15; (29) The department of commerce and consumer affairs on applicants for licensure and persons licensed under title 24; (30) The Hawaii health systems corporation on: (A) Employees; (B) Applicants seeking employment; (C) Current or prospective members of the corporation board or regional system board; or (D) Current or prospective volunteers, providers, or contractors, in any of the corporation's health facilities as provided by section 323F-5.5; (31) The department of commerce and consumer affairs on: (A) An applicant for a mortgage loan originator license; and (B) Each control person, executive officer, director, general partner, and manager of an applicant for a mortgage loan originator company license, as provided by chapter 454F; (32) The state public charter school commission or public charter schools on employees, teacher trainees, prospective employees, and prospective teacher trainees in any public charter school for any position that places them in close proximity to children, as provided in section 302D-33; (33) The counties on prospective employees who work with children, vulnerable adults, or senior citizens in community-based programs; (34) The counties on prospective employees for fire department positions which involve contact with children or vulnerable adults; (35) The counties on prospective employees for emergency medical services positions which involve contact with children or vulnerable adults; (36) The counties on prospective employees for emergency management positions and community volunteers whose responsibilities involve planning and executing homeland security measures including viewing, handling, and engaging in law enforcement or classified meetings and assisting vulnerable citizens during emergencies or crises; (37) The State and counties on employees, prospective employees, volunteers, and contractors whose position responsibilities require unescorted access to secured areas and equipment related to a traffic management center; (38) The State and counties on employees and prospective employees whose positions involve the handling or use of firearms for other than law enforcement purposes; (39) The State and counties on current and prospective systems analysts and others involved in an agency's information technology operation whose position responsibilities provide them with access to proprietary, confidential, or sensitive information; (40) The department of commerce and consumer affairs on applicants for real estate appraiser licensure or certification as provided by chapter 466K; (41) The department of health or its designee on all license applicants, licensees, employees, contractors, and prospective employees of medical marijuana dispensaries, and individuals permitted to enter and remain in medical marijuana dispensary facilities as provided under sections 329D-15(a)(4) and 329D‑16(a)(3); (42) The department of commerce and consumer affairs on applicants for nurse licensure or license renewal, reactivation, or restoration as provided by sections 457-7, 457-8, 457-8.5, and 457-9; [(43)] The county police departments on applicants for permits to acquire firearms pursuant to section 134-2 and on individuals registering their firearms pursuant to section 134-3; [(44)] The department of commerce and consumer affairs on: (A) Each of the controlling persons of the applicant for licensure as an escrow depository, and each of the officers, directors, and principals who will be in charge of the escrow depository's activities upon licensure; and (B) Each of the controlling persons of an applicant for proposed change in control of an escrow depository licensee, and each of the officers, directors, and principals who will be in charge of the licensee's activities upon approval of such application, as provided by chapter 449; and [(45)] Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law. (c) A qualified entity may conduct a criminal history record check on applicants for licensure or employment, employees, and volunteers who provide care to children, vulnerable adults, or individuals with disabilities. A qualified entity shall comply with the following requirements: (1) A qualified entity shall register with the Hawaii criminal justice data center before submitting a request for a criminal history record check under this subsection. As a part of the registration, the qualified entity shall agree to comply with state and federal law by signing an agreement approved by the attorney general, or the attorney general's duly authorized representative within the department of the attorney general; (2) A qualified entity shall verify that the applicant, employee, or volunteer for whom a request is being made, will be or is physically working or volunteering in the State; (3) A qualified entity shall submit to the Hawaii criminal justice data center a request for a criminal history record check on an applicant, employee, or volunteer with a complete set of electronic fingerprints and a signed waiver allowing the release of state and national criminal history record information to the qualified entity; (4) The Hawaii criminal justice data center shall provide directly to the qualified entity the state and national criminal history records to use only for the purpose of screening applicants, employees, or volunteers, as authorized by the written waiver required for submission of a request; (5) The determination whether the criminal history record shows that the applicant, employee, or volunteer has been convicted of or is under pending indictment for any crime that bears upon the fitness of the applicant, employee, or volunteer to have responsibility for the safety and well-being of children, vulnerable adults, or individuals with disabilities shall be made solely by the qualified entity. This subsection does not require the Hawaii criminal justice data center to make such a determination on behalf of any qualified entity; (6) The qualified entity shall notify the applicant, employee, or volunteer in writing of the person's right to obtain a copy of any background screening report, including the criminal history records obtained under this subsection, if any, contained in the report, and of the person's right to challenge the accuracy and completeness of any information contained in any such report and to obtain a determination as to the validity of such challenge before a final determination regarding the person is made by the qualified entity reviewing the background screening, including the criminal history record check, if any; (7) A qualified entity shall allow the periodic audit by the Hawaii criminal justice data center to ensure compliance with applicable federal law and this subsection; and (8) The State, any political subdivision of the State, or any agency, officer, or employee of the State or a political subdivision shall not be liable for damages for providing the information requested under this subsection. As used in this subsection, unless a different meaning plainly is required: "Care" means the provision of care, treatment, education, training, instruction, supervision, or recreation to children, vulnerable adults, or individuals with disabilities. "Qualified entity" means a business or organization, whether public, private, operated for profit, operated not for profit, or voluntary, which provides care or care placement services, including a business, organization, or agency that licenses or certifies others to provide care or care placement services that are not covered under subsection (b), and including those agencies described in subsection (b) but only to the extent that they seek criminal history record checks on volunteers. (d) The applicant, employee, or volunteer subject to a criminal history record check shall provide to the requesting agency or qualified entity: (1) Consent to obtain the applicant's, employee's, or volunteer's fingerprints, conduct the criminal history record check, and participate in the rap back program; (2) Identifying information required by the Federal Bureau of Investigation, such as the applicant's, employee's, or volunteer's name, date of birth, height, weight, eye color, hair color, gender, race, and place of birth; and (3) A statement indicating whether the applicant, employee, or volunteer has ever been convicted of a crime and, if so, the particulars of the conviction. (e) Fingerprints and information and records relating to the fingerprints acquired by the Hawaii criminal justice data center under this section shall be retained and maintained in an appropriate form and in an appropriate office in the custody and control of the Hawaii criminal justice data center, and shall at all times be kept separate from any similar records relating to the identification of criminals. The information shall be available only to authorized entities, agencies, and qualified entities as described in subsections (b) and (c) and such other persons or agencies as the attorney general shall authorize, subject to any restriction that the attorney general shall prescribe. The Hawaii criminal justice data center may dispose of any record of fingerprints and information and records relating to the fingerprints without regard to chapter 94, whenever, in the attorney general's discretion, retention of the record is no longer required or practicable. No officer or employee of the Hawaii criminal justice data center shall disclose any records of fingerprints or information and records relating to the fingerprints acquired in the performance of any of the officer's or employee's duties under this section to any person not authorized to receive the same pursuant to this section or pursuant to the orders of the attorney general. No person acquiring from the records of fingerprints or information and records relating to the fingerprints any information concerning any individual shall disclose the information to any person not so authorized to receive the same. [L 2003, c 95, §7; am L 2004, c 10, §12 and c 79, §6; am L 2006, c 131, §2 and c 220, §5; am L 2008, c 136, §7, c 154, §28, c 195, §15, and c 196, §11; am L 2009, c 77, §18 and c 182, §7; am L Sp 2009, c 32, §7; am L 2010, c 84, §26; am L 2011, c 117, §2 and c 220, §11; am L 2012, c 93, §6, c 210, §2, c 285, §5, and c 299, §2; am L 2013, c 159, §16 and c 167, §15; am L 2014, c 18, §2, c 38, §1, and c 196, §2; am L 2015, c 35, §35, c 190, §3, and c 241, §9; am L 2016, c 88, §5, c 97, §7, c 108, §4, c 224, §7, and c 251, §3]