CHAPTER 91—ACCESS
TO CRIMINAL HISTORY RECORDS FOR NATIONAL SECURITY AND OTHER PURPOSES
9101.
Access to criminal
history records for
national security and
other purposes.
Amendments
2000—Pub. L.
106–398, §1 [[div. A],
title X, §1076(f)(1)(A), (2)(B)], Oct. 30, 2000, 114
Stat. 1654, 1654A–282,
substituted “AND OTHER PURPOSES” for “PURPOSES” in chapter heading and
“Access to criminal history records for national security and other
purposes” for “Criminal history record information for national security
purposes” in item 9101.
§9101. Access to criminal history records for national security and
other purposes
(a) As used in this section:
(1) The term “criminal justice agency” means (A) any Federal, State, or
local court, and (B) any Federal, State, or local agency, or any subunit
thereof, which performs the administration of criminal justice pursuant
to a statute or Executive order, and which allocates a substantial part
of its annual budget to the administration of criminal justice.
(2) The term “criminal history record information” means information
collected by criminal justice agencies on individuals consisting of
identifiable descriptions and notations of arrests, indictments,
informations, or other formal criminal charges, and any disposition
arising therefrom, sentencing, correction supervision, and release. The
term does not include identification information such as fingerprint
records to the extent that such information does not indicate
involvement of the individual in the criminal justice system. The term
does not include those records of a State or locality sealed pursuant to
law from access by State and local criminal justice agencies of that
State or locality.
(3) The term “classified information” means information or material
designated pursuant to the provisions of a statute or Executive order as
requiring protection against unauthorized disclosure for reasons of
national security.
(4) The term “State” means any of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the
Northern Mariana Islands, Guam, the Virgin Islands, American Samoa, and
any other territory or possession of the United States.
(5) The term “local” and “locality” means any local government authority
or agency or component thereof within a State having jurisdiction over
matters at a county, municipal, or other local government level.
(6) The term “covered agency” means any of the following:
(A) The Department of Defense.
(B) The Department of State.
(C) The Department of Transportation.
(D) The Office of Personnel Management.
(E) The Central Intelligence Agency.
(F) The Federal Bureau of Investigation.
(b)(1) Upon request by the head of a covered agency, criminal justice
agencies shall make available criminal history record information
regarding individuals under investigation by that covered agency for the
purpose of determining eligibility for any of the following:
(A) Access to classified information.
(B) Assignment to or retention in sensitive national security duties.
(C) Acceptance or retention in the armed forces.
(D) Appointment, retention, or assignment to a position of public trust
or a critical or sensitive position while either employed by the
Government or performing a Government contract.
(2) Such a request to a State central criminal history record repository
shall be accompanied by the fingerprints of the individual who is the
subject of the request if required by State law and if the repository
uses the fingerprints in an automated fingerprint identification system.
(3) Fees, if any, charged for providing criminal history record
information pursuant to this subsection shall not exceed the reasonable
cost of providing such information.
(4) This subsection shall apply notwithstanding any other provision of
law or regulation of any State or of any locality within a State, or any
other law of the United States.
(c) A covered agency shall not obtain criminal history record
information pursuant to this section unless it has received written
consent from the individual under investigation for the release of such
information for the purposes set forth in paragraph (b)(1).
(d) Criminal history record information received under this section
shall be disclosed or used only for the purposes set forth in paragraph
(b)(1) or for national security or criminal justice purposes authorized
by law, and such information shall be made available to the individual
who is the subject of such information upon request.
(e)(1) Automated information delivery systems shall be used to provide
criminal history record information to a covered agency under subsection
(b) whenever available.
(2) Fees, if any, charged for automated access through such systems may
not exceed the reasonable cost of providing such access.
(3) The criminal justice agency providing the criminal history record
information through such systems may not limit disclosure on the basis
that the repository is accessed from outside the State.
(4) Information provided through such systems shall be the full and
complete criminal history record.
(5) Criminal justice agencies shall accept and respond to requests for
criminal history record information through such systems with printed or
photocopied records when requested.
(f) The authority provided under this section with respect to the
Department of State may be exercised only so long as the Department of
State continues to extend to its employees and applicants for
employment, at a minimum, those procedural safeguards provided for as
part of the security clearance process that were made available, as of
May 1, 1987, pursuant to section 163.4 of volume 3 of the Foreign
Affairs Manual.
(Added Pub.
L. 99–169, title VIII,
§801(a), Dec. 4, 1985, 99
Stat. 1009; amended Pub.
L. 99–569, title IV,
§402(a), Oct. 27, 1986, 100
Stat. 3196; Pub.
L. 101–246, title I,
§114, Feb. 16, 1990, 104
Stat. 22; Pub.
L. 106–398, §1 [[div.
A], title X, §1076(a)–(e), (f)(2)(A)], Oct. 30, 2000, 114
Stat. 1654, 1654A–280 to
1654A–282.)
Amendments
2000—Pub. L.
106–398, §1 [[div. A],
title X, §1076(f)(2)(A)], substituted “Access to criminal history
records for national security and other purposes” for “Criminal history
record information for national security purposes” in section catchline.
Subsec. (a)(1). Pub.
L. 106–398, §1 [[div.
A], title X, §1076(e)(1)], substituted “means (A) any Federal, State, or
local court, and (B) any Federal, State, or local agency, or any subunit
thereof, which” for “includes Federal, State, and local agencies and
means: (A) courts, or (B) a Government agency or any subunit thereof
which”.
Subsec. (a)(4). Pub.
L. 106–398, §1 [[div.
A], title X, §1076(e)(2)], inserted “the Commonwealth of” before “the
Northern Mariana Islands” and struck out “the Trust Territory of the
Pacific Islands,” after “American Samoa,”.
Subsec. (a)(6). Pub.
L. 106–398, §1 [[div.
A], title X, §1076(a)(1)], added par. (6).
Subsec. (b). Pub.
L. 106–398, §1 [[div.
A], title X, §1076(c)], in first sentence of par. (1), inserted “any of
the following:” after “eligibility for” and substituted subpars. (A) to
(D) for “(A) access to classified information or (B) assignment to or
retention in sensitive national security duties.”, designated second
sentence of par. (1) as par. (2), designated third sentence of par. (1)
as par. (3) and substituted a period for “, nor shall they in any event
exceed those charged to State or local agencies other than criminal
justice agencies for such information.”, and redesignated former par.
(2) as (4).
Subsec. (b)(1). Pub.
L. 106–398, §1 [[div.
A], title X, §1076(a)(2)], substituted “by the head of a covered agency”
for “by the Department of Defense, the Department of State, the Office
of Personnel Management, the Central Intelligence Agency, or the Federal
Bureau of Investigation” and “that covered agency” for “such department,
office, agency, or bureau”.
Subsec. (b)(3). Pub.
L. 106–398, §1 [[div.
A], title X, §1076(b)], struck out par. (3) which related to agreements
between Federal departments and agencies and States and localities to
indemnify and hold harmless the States and localities from claims
arising from the disclosure or use of criminal history record
information.
Subsec. (c). Pub.
L. 106–398, §1 [[div.
A], title X, §1076(a)(3)], substituted “A covered agency” for “The
Department of Defense, the Department of State, the Office of Personnel
Management, the Central Intelligence Agency, or the Federal Bureau of
Investigation”.
Subsecs. (e), (f). Pub.
L. 106–398, §1 [[div.
A], title X, §1076(d)], added subsec. (e) and redesignated former subsec.
(e) as (f).
1990—Subsecs. (b)(1), (3)(A), (B), (c). Pub.
L. 101–246, §114(1),
inserted “the Department of State,” after “Defense,” wherever appearing.
Subsec. (e). Pub.
L. 101–246, §114(2),
added subsec. (e).
1986—Subsecs. (b)(1), (3), (c). Pub.
L. 99–569 inserted
references to the Federal Bureau of Investigation and such bureau.
Effective Date of 1986 Amendment
Pub. L. 99–569, title
IV, §402(c), Oct. 27, 1986, 100
Stat. 3196, provided that: “The amendments made by this
section [amending this section and provisions set out as a note under
this section] shall become effective with respect to any inquiry which
begins after the date of enactment of this Act [Oct. 27, 1986] conducted
by the Federal Bureau of Investigation for purposes specified in
paragraph (b)(1) of section
9101 of title 5, United States Code.”
Effective Date
Pub. L. 99–169, title
VIII, §802, Dec. 4, 1985, 99
Stat. 1010, provided that: “The amendments made by
section 801(a) of this Act [enacting this section] shall become
effective with respect to any inquiry which begins after the date of
enactment of this Act [Dec. 4, 1985] conducted by the Department of
Defense, the Office of Personnel Management, or the Central Intelligence
Agency, for the purposes specified in paragraph (b)(1) of section
9101 of title 5, United States Code, as added by this Act.”
Termination Date of Subsection (b)(3) of This Section
Pub. L. 100–453, title
I, §101(d), Sept. 29, 1988, 102
Stat. 1904, extended the expiration date provided in
section 803(b) of Pub.
L. 99–169, formerly
set out below, until Dec. 31, 1989.
Pub. L. 99–169, title
VIII, §803(b), Dec. 4, 1985, 99
Stat. 1011, provided that subsec. (b)(3) of this
section expired three years after Dec. 4, 1985.
Report to Congressional Committees on Effect of Provisions for
Indemnification Agreements
Pub. L. 99–169, title
VIII, §803(a), Dec. 4, 1985, 99
Stat. 1010, as amended by Pub.
L. 99–569, title IV,
§402(b), Oct. 27, 1986, 100
Stat. 3196, directed Department of Justice, within two
years after Dec. 4, 1985, and after consultation with Department of
Defense, Office of Personnel Management, Central Intelligence Agency,
and Federal Bureau of Investigation, to report to appropriate committees
of Congress concerning the effect of 5
U.S.C. 9101(b)(3), as
added by this Act, including the effect of the absence of
indemnification agreements upon States and localities not eligible under 5
U.S.C. 9101(b)(3) for
such agreements.
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