Criminal History: What is It?
"Criminal history record information" means:
[I]nformation contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions,indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release. The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except
(a) Posters, announcements, or lists for
identifying or apprehending fugitives or wanted persons;
(b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;
(c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;
(d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;
(e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers' or other operators'
licenses and pursuant to RCW 46.52.130;
(f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW47.68.330;
(g) Announcements of executive clemency.
RCW 10.97.030(1). Criminal history information thus does not have to
originate from a court of law, and does not have to involve a conviction for
a charged offense.
Any "criminal justice agency" can be the source of data regarding
criminal history. So what is a "criminal justice agency"? WAC 446-20-050
(1) The following agencies shall be considered criminal justice agencies for the purpose of chapter 10.97 RCW and these regulations.
(a) The Washington state patrol, including the state identification section;
(b) Foreign, federal, state, and local governmental law enforcement agencies;
(c) The adult corrections division of the department of social and health services or the department of corrections as specified in chapter 72.02 RCW, including institutions as specified in chapter 72.01 RCW and probation and parole services as specified in chapter 72.04A RCW;
(d) The board of prison terms and paroles;
(e) Courts at any level, if they exercise criminal jurisdiction, for the administration of criminal justice.
(2) Only that subunit of the following agencies which
detects, prosecutes, or that work under the direction of the courts shall be considered criminal justice agencies for the purpose of chapter 10.97 RCW
and these regulations:
(a) Federal state and local prosecutorial, correctional programs, agencies or departments;
(b) The liquor control board as specified in RCW 66.44.010 (enforcement division);
(c) The department of labor and industries as specified in chapter 7.68A RCW (victims of crime
(d) The state fire marshal as specified in RCW 48.48.060(2);
(e) An agency or portion thereof that has been certified as a criminal justice agency pursuant to WAC 446-20-060.
The two statutory provisions cited above provide generally what information is gathered and who gathers it. This leads to the real question at issue in dealing with the issue of privacy: Who can get to the information and what information can they get?
Having A "Conviction Record" Does Not Require a Conviction
By the plain language of the Privacy Act "conviction records can be
disseminated without restriction." RCW 10.97.050(1). In Washington, a
"conviction record" does not always mean the subject was found guilty. RCW
"Conviction record" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject. (Italics added). RCW 10.97.030(3).
While the nature of a criminal conviction is fairly straightforward - the subject was charged with a crime and found guilty, either by plea of guilty or after a trial to a judge or jury - it is not so
obvious what might be meant by a "disposition adverse to the subject." The definition within the Privacy Act provides some guidance: "Conviction or other disposition adverse to the subject"
means any disposition of charges other than: (a) a decision not to prosecute; (b) a dismissal; or (c) an acquittal; with the following exceptions, which shall be considered dispositions adverse to the subject: An acquittal due to a finding of not guilty by reason of insanity and a dismissal by reason of incompetency, pursuant to 10.77 RCW; and a dismissal entered after a period of probation, suspension, or deferral of sentence. RCW 10.97.030(4).
This definition is critical because it is the central tool used in determining what level of privacy is afforded to the record.1 It is not a crystal clear definition, however, and it is dependent upon
different agencies and individuals for it to function as intended, leaving much room for error.
RCW 43.43.735(1) requires law enforcement to photograph and fingerprint "all adults and juveniles arrested for the commission of any criminal offense constituting a felony or gross misdemeanor." RCW 43.43.745(3) then provides:
Disposition of the charge for which the arrest was made shall be reported to the [State Patrol Identification] section at whatever stage in the proceedings a final disposition occurs by the arresting law enforcement agency, county prosecutor, city attorney, or court having jurisdiction over the offense. RCW 43.43.745(3).
The State Patrol promulgates rules for the implementation of this statute. Those rules can be found in WAC 446-16. If everyone follows those rules - i.e. the prosecuting attorney makes a report to the State Patrol when it is determined not to file a criminal charge - then the
"conviction record" definition can function as intended. If however, any criminal justice agency bureaucracy fails in its administrative duty, then a record may be in limbo and end up being treated by the State Patrol asconviction data. This is because the definition in 10.97.030(4) treats all dispositions as "adverse to the subject" unless it meets one of those other standards - acquittal; dismissal, or a decision not to prosecute - listed in the statute. Given the volume of cases handled by the police, courts, and prosecutors, it seems almost a foregone conclusion that mistakes will be made, and what should otherwise be treated as "nonconviction data" is instead available for dissemination. The same problem can arise with other parts of the "conviction record" definition.
RCW 10.97.030(4) specifically provides that "a dismissal entered after a period of probation, suspension, or deferral of sentence" shall be considered a "disposition adverse to the subject" and thus constitutes conviction data.