§846C-1 - Compact.

[§846C-1 Compact.] The National Crime
Prevention and Privacy Compact as contained herein is hereby enacted into law
and entered into on behalf of the State of Hawaii with the United States
Federal government and other party states in the form as follows:

OVERVIEW

(a) In general. This Compact organizes
an electronic information sharing system among the Federal Government and the
states to exchange criminal history records for noncriminal justice purposes
authorized by Federal or state law, such as background checks for governmental
licensing and employment.

(b) Obligations of parties. Under
this Compact, the FBI and the party states agree to maintain detailed databases
of their respective criminal history records, including arrests and
dispositions, and to make them available to the Federal Government and to party
states for authorized purposes. The FBI shall also manage the Federal data
facilities that provide a significant part of the infrastructure for the
system.

ARTICLE I

DEFINITIONS

"Attorney General" means the Attorney
General of the United States.

"Compact officer" means:

(a) For the Federal Government, an official so
designated by the Director of the FBI; and

(b) For the 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.

"Council" means the Compact Council
established under Article VI.

"Criminal history records" means:

(a) Information collected by criminal justice
agencies on individuals consisting of identifiable descriptions and notations
of arrests, detentions, indictments, or other formal criminal charges, and any
disposition arising therefrom, including acquittal, sentencing, correctional
supervision, or release; and

(b) Does not include identification
information such as fingerprint records if such information does not indicate
involvement of the individual with the criminal justice system.

"Criminal history record repository"
means the state agency designated 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.

"Criminal justice" includes
activities relating to the detection, apprehension, detention, pretrial
release, post-trial release, prosecution, adjudication, correctional
supervision, or rehabilitation of accused persons or criminal offenders. The
administration of criminal justice includes criminal identification activities
and the collection, storage, and dissemination of criminal history records.

"Criminal justice agency" means:

(a) Courts; and

(b) A governmental agency or any subunit
thereof 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 administration of criminal justice and includes federal and state
inspectors general offices.

"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.

"Criterion offense" means any felony
or misdemeanor offense not included on the list of nonserious offenses
published periodically by the FBI.

"Direct access" means access to the
National Identification Index by computer terminal or other automated means not
requiring the assistance of or intervention by any other party or agency.

"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.

"FBI" means the Federal Bureau of
Investigation.

"III System" has the same meaning as
"Interstate Identification Index System" and means:

(a) The cooperative Federal-state system for
the exchange of criminal history records; and includes

(b) The National Identification Index, the
National Fingerprint File and, to the extent of their participation in such
system, the criminal history record repositories of the states and the FBI.

"National Fingerprint File" means a
database of fingerprints, or other uniquely personal identifying information,
relating to an arrested or charged individual maintained by the FBI to provide
positive identification of record subjects indexed in the III System.

"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.

"National indices" means the National
Identification Index and the National Fingerprint File.

"Nonparty state" means a state that
has not ratified this Compact.

"Noncriminal justice purposes" means
uses of criminal history records for purposes authorized by Federal or state
law other than purposes relating to criminal justice activities, including
employment suitability, licensing determinations, immigration and
naturalization matters, and national security clearances.

"Party state" means a state that has
ratified this Compact.

"Positive identification" means a
determination, based upon a comparison of fingerprints or other equally reliable
biometric identification 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
combinations thereof, shall not constitute positive identification.

"Sealed record information" means:

(a) With respect to adults, that portion of
the record that is:

(1) Not available for criminal justice uses;

(2) Not supported by fingerprints or other accepted
means of positive identification; or

(3) Subject to restrictions on dissemination for
noncriminal justice purposes pursuant to a court order related to a particular
subject or pursuant 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.

"State" means any state, territory,
or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

ARTICLE II

PURPOSE

The purpose of this Compact is to:

(a) Provide a legal framework for the
establishment of a cooperative Federal-state system for the interstate and
Federal-state exchange of criminal history records for noncriminal justice
uses;

(b) 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, procedures, and standards established by the Council under Article
VI;

(c) Require party states to provide information
and records for the National Identification Index and the National Fingerprint
File and to provide criminal history records, in a timely fashion, to criminal
history record repositories of other states and the Federal Government for
noncriminal justice purposes, in accordance with the terms of this Compact and
with rules, procedures, and standards established by the Council under Article
VI;

(d) 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

(e) Require the FBI and each party state to
adhere to III System standards concerning record dissemination and use,
response times, system 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

(a) FBI responsibilities. The Director
of the FBI shall:

(1) Appoint an FBI Compact officer who shall:

(A) 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(c);

(B) Ensure that Compact provisions and rules,
procedures, and standards 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 Article III(1)(A); and

(C) 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;

(2) 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:

(A) Information from nonparty states; and

(B) 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;

(3) 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 such records for criminal justice
purposes has priority over exchange for noncriminal justice purposes; and

(4) 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.

(b) State responsibilities. Each party
state shall:

(1) Appoint a Compact officer who shall:

(A) Administer this Compact within that state;

(B) Ensure that Compact provisions and rules,
procedures, and standards established by the Council under Article VI are
complied with in the state; and

(2) Establish and maintain a criminal history record
repository, which shall provide:

(A) Information and records for the National
Identification Index and the National Fingerprint File; and

(B) The state's III System-indexed criminal
history records for noncriminal justice purposes described in Article IV;

(3) Participate in the National Fingerprint File; and

(4) Provide and maintain telecommunications links and
related equipment necessary to support the services set forth in this Compact.

(c) Compliance with III System standards. 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 dissemination and use, response
times, data quality, system security, accuracy, privacy protection, and other
aspects of III System operation.

(d) Maintenance of record services.

(1) Use of the III System for noncriminal justice
purposes authorized in this Compact shall be managed so as not to diminish the
level of services provided in support of criminal justice purposes.

(2) Administration of Compact provisions shall not
reduce the level of service available to authorized noncriminal justice users
on the effective date of this Compact.

ARTICLE IV

AUTHORIZED
RECORD DISCLOSURES

(a) State criminal history record
repositories. 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 records) to
state criminal history record repositories for noncriminal justice purposes
allowed by Federal statute, Federal Executive order, or a state statute that
has been approved by the Attorney General and that authorizes national indices
checks.

(b) Criminal justice agencies and other
governmental or nongovernmental agencies. 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 records)
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
authorizes national indices checks.

(c) Procedures. 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:

(1) Ensure that records obtained under this Compact
are used only by authorized officials for authorized purposes;

(2) Require that subsequent record checks are
requested to obtain current information whenever a new need arises; and

(3) Ensure that record entries that may not legally
be used for a particular 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

(a) Positive identification. Subject
fingerprints or other approved forms of positive identification shall be
submitted with all requests for criminal history record checks for noncriminal
justice purposes.

(b) Submission of state requests. Each
request for a criminal history record check utilizing the national indices made
under any approved state statute shall be submitted through that state's
criminal history record repository.

A state criminal history record repository shall
process an interstate request for noncriminal justice purposes through the
national indices only if such request is transmitted through another state
criminal history record repository or the FBI.

(c) Submission of Federal requests. Each
request for criminal history record checks utilizing the national indices made
under Federal authority shall be submitted through the FBI or, if the state
criminal history record repository consents to process fingerprint submissions,
through the criminal history record repository in the state in which such
request originated. Direct access to the National Identification Index by
entities other than the FBI and state criminal history records repositories
shall not be permitted for noncriminal justice purposes.

(d) Fees. A state criminal history
record repository or the FBI:

(1) May charge a fee, in accordance with applicable
law, for handling a request involving fingerprint processing for noncriminal
justice purposes; and

(2) 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.

(e) Additional search.

(1) If a state criminal history record repository
cannot positively identify the subject of a record request made for noncriminal
justice purposes, the request, together with fingerprints or other approved
identifying information, shall be forwarded to the FBI for a search of the
national indices.

(2) If, with respect to a request forwarded by a state
criminal history record repository under paragraph (1), the FBI positively
identifies the subject as having a III System-indexed record or records:

(A) The FBI shall so advise the state criminal
history record repository; and

(B) The state criminal history record
repository shall be 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

(a) Establishment.

(1) In general. There is established a
council to be known as the "Compact Council", which shall have 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.

(2) Organization. The Council shall:

(A) Continue in existence as long as this
Compact remains in effect;

(B) Be located, for administrative purposes,
within the FBI; and

(b) Membership. The Council shall be
composed of fifteen members, each of whom shall be appointed by the Attorney
General, as follows:

(1) Nine members, each of whom shall serve a two-year
term, who shall 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 repositories of
nonparty states shall be eligible to serve on an interim basis.

(2) Two at-large members, nominated by the Director
of the FBI, each of whom shall serve a three-year term, of whom:

(A) One shall be a representative of the
criminal justice agencies of the Federal Government and may not be an employee
of the FBI; and

(B) One shall be a representative of the
noncriminal justice agencies of the Federal Government.

(3) Two at-large members, nominated by the Chairman
of the Council, once the Chairman is elected pursuant to Article VI(c), each of
whom shall serve a three-year term, of whom:

(A) One shall be a representative of state or
local criminal justice agencies; and

(B) One shall be a representative of state or
local noncriminal justice agencies.

(4) One member, who shall serve a three-year term,
and who shall simultaneously be a member of the FBI's advisory policy board on
criminal justice information services, nominated by the membership of that
policy board.

(5) One member, nominated by the Director of the FBI,
who shall serve a three-year term, and who shall be an employee of the FBI.

(1) In general. From its membership, the
Council shall elect a Chairman and a Vice Chairman of the Council,
respectively. Both the Chairman and Vice Chairman of the Council:

(A) Shall 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

(B) Shall serve a two-year term and may be
reelected to only one additional two-year term.

(2) Duties of Vice Chairman. The Vice
Chairman of the Council shall serve as the Chairman of the Council in the
absence of the Chairman.

(d) Meetings.

(1) In general. The Council shall meet at
least once each year at the call of the Chairman. Each meeting of the Council
shall 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 such meeting.

(2) Quorum. A majority of the Council or any
committee of the Council shall constitute a quorum of the Council or of such
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.

(e) Rules, procedures, and standards.
The Council shall make available for public inspection and copying at the
Council office within the FBI, and shall publish in the Federal Register, any
rules, procedures, or standards established by the Council.

(f) Assistance from FBI. The Council
may request from the FBI such reports, studies, statistics, or other
information or materials as the Council determines to be necessary to enable
the Council to perform its duties under this Compact. The FBI, to the extent
authorized by law, may provide such assistance or information upon such a
request.

(g) Committees. 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 shall take effect upon being
entered into by two or more states as between those states and the Federal
Government.

Upon subsequent entering into this Compact by
additional states, it shall become effective among those states and the Federal
Government and each party state that has previously ratified it.

When ratified, this Compact shall have the full
force and effect of law within the ratifying jurisdictions. The form of
ratification shall be in accordance with the laws of the executing state.

ARTICLE
VIII

MISCELLANEOUS
PROVISIONS

(a) Relation of Compact to certain FBI
activities. Administration of this Compact shall not interfere with the
management 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.

(b) No authority for nonappropriated
expenditures. Nothing in this Compact shall require the FBI to obligate or
expend funds beyond those appropriated to the FBI.

(c) Relating to Public Law 92-544. Nothing
in this Compact shall diminish or lessen 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 subdivision 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(a), regarding the use and
dissemination of criminal history records and information.

ARTICLE IX

RENUNCIATION

(a) In general. This Compact shall
bind each party state until renounced by the party state.

(b) Effect. Any renunciation of this
Compact by a party state shall:

(1) Be effected in the same manner by which the party
state ratified this Compact; and

(2) Become effective one hundred eighty 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 shall be
severable, and 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 the applicability thereof to any
government, agency, person, or circumstance is held invalid, the validity of
the remainder of this Compact and the applicability thereof to any government,
agency, person, or circumstance shall not be affected thereby. If a portion of
this Compact is held contrary to the constitution of any party state, all other
portions of this Compact shall 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

(a) In general. The Council shall:

(1) Have initial authority to make determinations
with respect to any dispute regarding:

(A) Interpretation of this Compact;

(B) Any rule or standard established by the
Council pursuant to Article V; and

(2) Hold a hearing concerning any dispute described
in paragraph (1) at a regularly scheduled meeting of the Council and only
render a decision based upon a majority vote of the members of the Council.
Such decision shall be published pursuant to the requirements of Article VI(e).

(b) Duties of FBI. The FBI shall
exercise immediate and necessary action to preserve the integrity of the III
System, maintain system policy and standards, protect the accuracy and privacy
of records, and to prevent abuses, until the Council holds a hearing on such
matters.

(c) Right of appeal. The FBI or a party
state may appeal any decision of the Council to the Attorney General, and
thereafter may file suit in the appropriate district court of the United States, which shall have original jurisdiction of all cases or controversies arising
under this Compact. Any suit arising under this Compact and initiated in a state
court shall 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 authority. [L 2006, c 83, §2]