1     
BCI BACKGROUND CHECK AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jacob L. Anderegg

5     
House Sponsor: Karianne Lisonbee

6     

7     LONG TITLE
8     General Description:
9          This bill concerns background check procedures and information.
10     Highlighted Provisions:
11          This bill:
12          ▸     creates and modifies definitions;
13          ▸     modifies procedures and requirements concerning background check requests and
14     information; and
15          ▸     makes technical and conforming changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          53-10-102, as last amended by Laws of Utah 2019, Chapter 33
23          53-10-108, as last amended by Laws of Utah 2021, Chapters 344 and 357
24     

25     Be it enacted by the Legislature of the state of Utah:
26          Section 1. Section 53-10-102 is amended to read:
27          53-10-102. Definitions.
28          As used in this chapter:
29          (1) "Administration of criminal justice" means performance of any of the following:
30     detection, apprehension, detention, pretrial release, posttrial release, prosecution, adjudication,
31     correctional supervision, or rehabilitation of accused persons or criminal offenders.
32          (2) "Alcoholic beverage" [is as] means the same as that term is defined in Section
33     32B-1-102.
34          (3) "Alcoholic product" [is as] means the same as that term is defined in Section
35     32B-1-102.
36          (4) "Bureau" means the Bureau of Criminal Identification within the department,
37     created in Section 53-10-201.
38          [(4)] (5) "Commission" means the Alcoholic Beverage Control Commission.
39          [(5)] (6) "Communications services" means the technology of reception, relay, and
40     transmission of information required by a public safety [agencies] agency in the performance of
41     [their] the public safety agency's duty.
42          [(6)] (7) "Conviction record" means criminal history information indicating a record of
43     a criminal charge [which] that has led to a declaration of guilt of an offense.
44          [(7)] (8) "Criminal history record information" means information on [individuals] an
45     individual consisting of identifiable descriptions and notations of:
46          (a) arrests, detentions, indictments, informations, or other formal criminal charges, and
47     any disposition arising from any of them; and
48          (b) sentencing, correctional supervision, and release.
49          [(8)] (9) "Criminal justice agency" means [courts] a court or a government agency or
50     subdivision of a government agency that administers criminal justice under a statute, executive
51     order, or local ordinance and that allocates greater than 50% of its annual budget to the
52     administration of criminal justice.
53          [(9)] (10) "Criminalist" means the scientific discipline directed to the recognition,
54     identification, individualization, and evaluation of physical evidence by application of the
55     natural sciences in law-science matters.
56          [(10)] (11) "Department" means the Department of Public Safety.
57          [(11)] (12) "Director" means the division director appointed under Section 53-10-103.
58          [(12)] (13) "Division" means the Criminal Investigations and Technical Services
59     Division created in Section 53-10-103.
60          [(13)] (14) "Executive order" means an order of the president of the United States or
61     the chief executive of a state that has the force of law and that is published in a manner
62     permitting regular public access to [it] the order.
63          [(14)] (15) "Forensic" means dealing with the application of scientific knowledge
64     relating to criminal evidence.
65          [(15)] (16) "Mental defective" means an individual who, by a district court, as a result
66     of marked subnormal intelligence, or mental illness, incompetency, condition, or disease, is
67     found:
68          (a) to be a danger to himself or herself or others;
69          (b) to lack the mental capacity to contract or manage the individual's own affairs;
70          (c) to be incompetent by a court in a criminal case; or
71          (d) to be incompetent to stand trial or found not guilty by reason or lack of mental
72     responsibility.
73          [(16)] (17) "Missing child" means [any person] an individual under [the age of] 18
74     years old who is missing from the [person's] individual's home environment or a temporary
75     placement facility for any reason and whose location cannot be determined by the person
76     responsible for the [child's] individual's care.
77          [(17)] (18) "Missing person" [is as] means the same as that term is defined in Section
78     26-2-27.
79          [(18)] (19) "Pathogens" means disease-causing agents.
80          [(19)] (20) "Physical evidence" means something submitted to the bureau to determine
81     the truth of a matter using scientific methods of analysis.
82          [(20)] (21) "Qualifying entity" means a business, organization, or a governmental entity
83     that employs persons or utilizes volunteers who deal with:
84          (a) national security interests;
85          [(b) care, custody, or control of children;]
86          [(c)] (b) fiduciary trust over money; or
87          [(d) health care to children or vulnerable adults; or]
88          [(e) the provision of any of the following to a vulnerable adult:]
89          [(i) care;]
90          [(ii) protection;]
91          [(iii) food, shelter, or clothing;]
92          [(iv) assistance with the activities of daily living; or]
93          [(v) assistance with financial resource management.]
94          (c) the provision of care, treatment, education, training, instruction, supervision, or
95     recreation to children, the elderly, or individuals with disabilities.
96          Section 2. Section 53-10-108 is amended to read:
97          53-10-108. Restrictions on access, use, and contents of division records -- Limited
98     use of records for employment purposes -- Challenging accuracy of records -- Usage fees
99     -- Missing children records -- Penalty for misuse of records.
100          (1) As used in this section:
101          (a) "Clone" means to copy a subscription or subscription data from a rap back system,
102     including associated criminal history record information, from a qualified entity to another
103     qualified entity.
104          [(a)] (b) "FBI Rap Back System" means the rap back system maintained by the Federal
105     Bureau of Investigation.
106          [(b) "Qualifying child care entity" means:]
107          [(i) the Office of Licensing within the Department of Human Services, created in
108     Section 62A-2-103;]
109          [(ii) the State Board of Education described in Section 53E-3-201; or]
110          [(iii) the Department of Health created in Section 26-1-4.]
111          (c) "Rap back system" means a system that enables authorized entities to receive
112     ongoing status notifications of any criminal history reported on individuals whose fingerprints
113     are registered in the system.
114          (d) "Volunteer Employee Criminal History System" or "VECHS" means a system that
115     allows the bureau and the Federal Bureau of Investigation to provide criminal history record
116     information to a qualifying entity, including a non-governmental qualifying entity.
117          [(d)] (e) "WIN Database" means the Western Identification Network Database that
118     consists of eight western states sharing one electronic fingerprint database.
119          (2) Except as provided in Subsection (17), dissemination of information from a criminal
120     history record, including information obtained from a fingerprint background check, name
121     check, warrant of arrest information, or information from division files, is limited to:
122          (a) criminal justice agencies for purposes of administration of criminal justice and for
123     employment screening by criminal justice agencies;
124          (b) (i) agencies or individuals pursuant to a specific agreement with a criminal justice
125     agency to provide services required for the administration of criminal justice; and
126          (ii) the agreement shall specifically authorize access to data, limit the use of the data to
127     purposes for which given, and ensure the security and confidentiality of the data;
128          (c) a qualifying entity for employment background checks for [their] the qualifying
129     entity's own employees or volunteers and [persons] individuals who have applied for
130     employment with or to serve as a volunteer for the qualifying entity;
131          (d) noncriminal justice agencies or individuals for any purpose authorized by statute,
132     executive order, court rule, court order, or local ordinance;
133          (e) agencies or individuals for the purpose of obtaining required clearances connected
134     with foreign travel or obtaining citizenship;
135          (f) agencies or individuals for the purpose of a preplacement adoptive study, in
136     accordance with the requirements of Sections 78B-6-128 and 78B-6-130;
137          (g) private security agencies through guidelines established by the commissioner for
138     employment background checks for their own employees and prospective employees;
139          (h) state agencies for the purpose of conducting a background check for the following
140     individuals:
141          (i) employees;
142          (ii) applicants for employment;
143          (iii) volunteers; and
144          (iv) contract employees;
145          (i) governor's office for the purpose of conducting a background check on the
146     following individuals:
147          (i) cabinet members;
148          (ii) judicial applicants; and
149          (iii) members of boards, committees, and commissions appointed by the governor;
150          (j) the office of the lieutenant governor for the purpose of conducting a background
151     check on an individual applying to be a notary public under Section 46-1-3;
152          (k) agencies and individuals as the commissioner authorizes for the express purpose of
153     research, evaluative, or statistical activities pursuant to an agreement with a criminal justice
154     agency; and
155          (l) other agencies and individuals as the commissioner authorizes and finds necessary
156     for protection of life and property and for offender identification, apprehension, and
157     prosecution pursuant to an agreement.
158          (3) An agreement under Subsection (2)(k) shall specifically authorize access to data,
159     limit the use of data to research, evaluative, or statistical purposes, preserve the anonymity of
160     individuals to whom the information relates, and ensure the confidentiality and security of the
161     data.
162          (4) (a) Before requesting information, a qualifying entity under Subsection (2)(c), state
163     agency, or other agency or individual described in Subsections (2)(d) through (j) shall obtain a
164     signed waiver from the person whose information is requested.
165          (b) The waiver shall notify the signee:
166          (i) that a criminal history background check will be conducted;
167          (ii) who will see the information; and
168          (iii) how the information will be used.
169          (c) A qualifying entity under Subsection (2)(c), state agency, or other agency or
170     individual described in Subsections (2)(d) through (g) that submits a request for a noncriminal
171     justice name based background check of local databases to the bureau shall provide to the
172     bureau:
173          (i) personal identifying information for the subject of the background check; and
174          (ii) the fee required by Subsection (15).
175          (d) A qualifying entity under Subsection (2)(c), state agency, or other agency or
176     individual described in Subsections (2)(d) through (g) that submits a request for a WIN
177     database check and a nationwide background check shall provide to the bureau:
178          (i) personal identifying information for the subject of the background check;
179          (ii) a fingerprint card for the subject of the background check; and
180          (iii) the fee required by Subsection (15).
181          (e) Information received by a qualifying entity under Subsection (2)(c), state agency, or
182     other agency or individual described in Subsections (2)(d) through (j) may only be:
183          (i) available to individuals involved in the hiring or background investigation of the job
184     applicant, employee, [or] notary applicant, or as authorized under federal or state law;
185          (ii) used for the purpose of assisting in making an employment appointment, selection,
186     or promotion decision or for considering a notary applicant under Section 46-1-3; and
187          (iii) used for the purposes disclosed in the waiver signed in accordance with Subsection
188     (4)(b).
189          (f) An individual who disseminates or uses information obtained from the division
190     under Subsections (2)(c) through (j) for purposes other than those specified under Subsection
191     (4)(e), in addition to any penalties provided under this section, is subject to civil liability.
192          (g) (i) A qualifying entity under Subsection (2)(c), state agency, or other agency or
193     individual described in Subsections (2)(d) through (j) that obtains background check
194     information shall provide the subject of the background check an opportunity to:
195          [(i) review] (A) request a copy of the information received [as provided under
196     Subsection (9)]; and
197          [(ii)] (B) respond to and challenge the accuracy of any information received.
198          (ii) An individual who is the subject of a background check and who receives a copy of
199     the information described in Subsection (4)(g)(i) may use the information only for the purpose
200     of reviewing, responding to, or challenging the accuracy of the information.
201          (h) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
202     division may make rules to implement this Subsection (4).
203          (i) The division or [its] the division's employees are not liable for defamation, invasion
204     of privacy, negligence, or any other claim in connection with the contents of information
205     disseminated under Subsections (2)(c) through (j).
206          (5) (a) [Any] Except as provided in Subsection (5)(b), (c), (d), or (e), or as otherwise
207     authorized under state law, criminal history record information obtained from division files
208     may be used only for the purposes for which [it] the information was provided [and may not be
209     further disseminated, except under Subsection (5)(b), (c), or (d)].
210          (b) A criminal history provided to an agency [pursuant to] under Subsection (2)(f) may
211     be provided by the agency to the individual who is the subject of the history, another licensed
212     child-placing agency, or the attorney for the adoptive parents for the purpose of facilitating an
213     adoption.
214          (c) A criminal history of a defendant provided to a criminal justice agency under
215     Subsection (2)(a) may also be provided by the prosecutor to a defendant's defense counsel,
216     upon request during the discovery process, for the purpose of establishing a defense in a
217     criminal case.
218          (d) A public transit district, as described in Title 17B, Chapter 2a, Part 8, Public
219     Transit District Act, that is under contract with a state agency to provide services may, for the
220     purposes of complying with Subsection 62A-5-103.5(5), provide a criminal history record to
221     the state agency or the agency's designee.
222          (e) Criminal history record information obtained from a national source may be
223     disseminated if the dissemination is authorized by a policy issued by the Criminal Justice
224     Information Services Division or other federal law.
225          [(6) The division may not disseminate criminal history record information to qualifying
226     entities under Subsection (2)(c) regarding employment background checks if the information is
227     related to charges:]
228          [(a) that have been declined for prosecution;]
229          [(b) that have been dismissed; or]
230          [(c) regarding which a person has been acquitted.]
231          (6) (a) A qualifying entity under Subsection (2)(c) may submit fingerprints to the
232     bureau and the Federal Bureau of Investigation for a local and national background check
233     under the provisions of the National Child Protection Act of 1993, 42 U.S.C. Sec. 5119 et seq.
234          (b) A qualifying entity under Subsection (2)(c) that submits fingerprints under
235     Subsection (6)(a):
236          (i) shall meet all VECHS requirements for using VECHS; and
237          (ii) may only submit fingerprints for an employee, volunteer, or applicant who has
238     resided in Utah for the seven years before the day on which the qualifying entity submits the
239     employee's, volunteer's, or applicant's fingerprints.
240          (7) (a) This section does not preclude the use of the division's central computing
241     facilities for the storage and retrieval of criminal history record information.
242          (b) This information shall be stored so [it] the information cannot be modified,
243     destroyed, or accessed by unauthorized agencies or individuals.
244          (8) Direct access through remote computer terminals to criminal history record
245     information in the division's files is limited to those agencies authorized by the commissioner
246     under procedures designed to prevent unauthorized access to this information.
247          (9) (a) The commissioner shall establish procedures to allow an individual right of
248     access to review and receive a copy of the individual's criminal history report.
249          (b) A processing fee for the right of access service, including obtaining a copy of the
250     individual's criminal history report under Subsection (9)(a) shall be set in accordance with
251     Section 63J-1-504.
252          (c) (i) The commissioner shall establish procedures for an individual to challenge the
253     completeness and accuracy of criminal history record information contained in the division's
254     computerized criminal history files regarding that individual.
255          (ii) These procedures shall include provisions for amending any information found to
256     be inaccurate or incomplete.
257          (10) The private security agencies as provided in Subsection (2)(g):
258          (a) shall be charged for access; and
259          (b) shall be registered with the division according to rules made by the division under
260     Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
261          (11) Before providing information requested under this section, the division shall give
262     priority to a criminal justice [agencies] agency's needs.
263          (12) (a) It is a class B misdemeanor for a person to knowingly or intentionally access,
264     use, disclose, or disseminate a record created, maintained, or to which access is granted by the
265     division or any information contained in a record created, maintained, or to which access is
266     granted by the division for a purpose prohibited or not permitted by statute, rule, regulation, or
267     policy of a governmental entity.
268          (b) A person who discovers or becomes aware of any unauthorized use of records
269     created or maintained, or to which access is granted by the division shall inform the
270     commissioner and the director of the [Utah Bureau of Criminal Identification] bureau of the
271     unauthorized use.
272          (13) (a) Subject to Subsection (13)(b), a qualifying entity or an entity described in
273     Subsection (2) may request that the division register fingerprints taken for the purpose of
274     conducting current and future criminal background checks under this section with:
275          (i) the WIN Database rap back system, or any successor system;
276          (ii) the FBI Rap Back System; or
277          (iii) a system maintained by the division.
278          (b) A qualifying entity or an entity described in Subsection (2) may only make a
279     request under Subsection (13)(a) if the entity:
280          (i) has the authority through state or federal statute or federal executive order;
281          (ii) obtains a signed waiver from the individual whose fingerprints are being registered;
282     and
283          (iii) establishes a privacy risk mitigation strategy to ensure that the entity only receives
284     notifications for individuals with whom the entity maintains an authorizing relationship.
285          (14) The division is authorized to submit fingerprints to the FBI Rap Back System to
286     be retained in the FBI Rap Back System for the purpose of being searched by future
287     submissions to the FBI Rap Back System, including latent fingerprint searches.
288          (15) (a) The division shall impose fees set in accordance with Section 63J-1-504 for
289     the applicant fingerprint card, name check, and to register fingerprints under Subsection
290     (13)(a).
291          (b) Funds generated under this Subsection (15) shall be deposited into the General
292     Fund as a dedicated credit by the department to cover the costs incurred in providing the
293     information.
294          (c) The division may collect fees charged by an outside agency for services required
295     under this section.
296          (16) For the purposes of conducting a criminal background check authorized under
297     Subsection (2)(h), (i), or (j), the Division of Human Resource Management, in accordance with
298     Title 63A, Chapter 17, Utah State Personnel Management Act, and the governor's office shall
299     have direct access to criminal background information maintained under [Title 53,] Chapter 10,
300     Part 2, Bureau of Criminal Identification.
301          (17) (a) Except as provided in Subsection (18), if an individual has an active FBI Rap
302     Back System subscription with a qualifying [child care] entity, the division may, upon request
303     from another qualifying [child care] entity, [transfer] clone the subscription to the requesting
304     qualifying [child care] entity if:
305          (i) the requesting qualifying [child care] entity requests the [transfer] clone:
306          (A) for the purpose of evaluating whether the individual should be permitted to obtain
307     or retain a license for, or serve as an employee or volunteer in a position [where] in which the
308     individual is responsible for, [the care, custody, or control of children;] the care, treatment,
309     training, instruction, supervision, or recreation of children, the elderly, or individuals with
310     disabilities; or
311          (B) for the same purpose as the purpose for which the original qualifying entity
312     requested the criminal history record information;
313          (ii) the requesting qualifying [child care] entity is expressly authorized by statute to
314     obtain criminal history record information for the individual who is the subject of the request;
315          (iii) before requesting the [transfer] clone, the requesting qualifying [child care] entity
316     obtains a signed waiver, containing the information described in Subsection (4)(b), from the
317     individual who is the subject of the request;
318          (iv) the requesting qualifying [child care] entity or the individual pays any applicable
319     fees set by the division in accordance with Section 63J-1-504; and
320          (v) the requesting qualifying [child care] entity complies with the requirements
321     described in Subsection (4)(g).
322          (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
323     division may make rules regulating the process described in this Subsection (17).
324          (18) (a) Subsection (17) does not apply unless the Federal Bureau of Investigation
325     approves the use of the FBI Rap Back System for the purpose described in Subsection
326     (17)(a)(i) under the conditions described in Subsection (17).
327          (b) Subsection (17) does not apply to the extent that implementation of the provisions
328     of Subsection (17) are contrary to the requirements of the Child Care and Development Block
329     Grant, 42 U.S.C. Secs. 9857-9858r or any other federal grant.
330          (19) (a) Information received by a qualifying [child care] entity under Subsection (17)
331     may only be disclosed and used as described in Subsection (4)(e).
332          (b) A person who disseminates or uses information received under Subsection (17) for
333     a purpose other than those described in Subsection (4)(e) is subject to the penalties described in
334     this section and is also subject to civil liability.
335          (c) A qualifying [child care] entity is not liable for defamation, invasion of privacy,
336     negligence, or any other claim in connection with the contents of information disseminated
337     under Subsection (17).