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:
18 Other Special Clauses:
20 Utah Code Sections Affected:
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
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" [
34 (3) "Alcoholic product" [
36 (4) "Bureau" means the Bureau of Criminal Identification within the department,
37 created in Section 53-10-201.
40 transmission of information required by a public safety [
43 a criminal charge [
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.
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.
54 identification, individualization, and evaluation of physical evidence by application of the
55 natural sciences in law-science matters.
59 Division created in Section 53-10-103.
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 [
64 relating to criminal evidence.
66 of marked subnormal intelligence, or mental illness, incompetency, condition, or disease, is
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
74 years old who is missing from the [
75 placement facility for any reason and whose location cannot be determined by the person
76 responsible for the [
81 the truth of a matter using scientific methods of analysis.
83 that employs persons or utilizes volunteers who deal with:
84 (a) national security interests;
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.
105 Bureau of Investigation.
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.
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 [
129 entity's own employees or volunteers and [
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
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
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
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, [
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
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:
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 [
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) [
207 authorized under state law, criminal history record information obtained from division files
208 may be used only for the purposes for which [
210 (b) A criminal history provided to an agency [
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
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.
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 [
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 [
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 [
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;
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
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
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 [
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 [
303 from another qualifying [
304 qualifying [
305 (i) the requesting qualifying [
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 [
308 individual is responsible for, [
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 [
314 obtain criminal history record information for the individual who is the subject of the request;
315 (iii) before requesting the [
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 [
319 fees set by the division in accordance with Section 63J-1-504; and
320 (v) the requesting qualifying [
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 [
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 [
336 negligence, or any other claim in connection with the contents of information disseminated
337 under Subsection (17).