**PRIVACY AND CIVIL RIGHTS**

**POLICY TEMPLATES FOR**

**JUSTICE INFORMATION SYSTEMS**

***DRAFT FOR PRELIMINARY DISCUSSION***

***NOT FOR DISSEMINATION***

**by**

**Alan Carlson**

**The Justice Management Institute**

**version: October 12, 2005**

![](media/image1.png){width="2.75in" height="2.375in"}

This project was supported in part by Grant No. 2003-DD-BX-K011 awarded
by the Bureau of Justice Assistance, U.S. Department of Justice. Points
of view in this document are those of the author and do not necessarily
represent the official positions or policies of the U.S. Department of
Justice.

Online research services for this project were provided by LexisNexis.

**PRIVACY AND CIVIL RIGHTS**

**POLICY TEMPLATES**

**FOR JUSTICE INFORMATION SYSTEMS**

TABLE OF CONTENTS

[INTRODUCTION 2](#introduction)

[AUDIENCE 2](#audience)

[SCOPE OF POLICY TEMPLATES 2](#scope-of-policy-templates)

[CONCEPTS UNDERLYING TEMPLATES 2](#concepts-underlying-templates)

[ORGANIZATION OF POLICY TEMPLATES 2](#organization-of-policy-templates)

[FORMAT OF POLICY TEMPLATES 2](#format-of-policy-templates)

[HOW TO USE THE TEMPLATES 2](#how-to-use-the-templates)

[A. ELEMENTS OF ENABLING LEGISLATION OR AUTHORIZATION
2](#a.-elements-of-enabling-legislation-or-authorization)

[A.1.00 STATEMENT OF PURPOSE 2](#a.1.00-statement-of-purpose)

[A.2.00 COMPLIANCE WITH LAWS REGARDING PRIVACY, CIVIL RIGHTS, AND CIVIL
LIBERTIES
2](#a.2.00-compliance-with-laws-regarding-privacy-civil-rights-and-civil-liberties)

[A.3.00 AGENCY TRANSPARENCY AND ACCOUNTABILITY
2](#a.3.00-agency-transparency-and-accountability)

[B. ELEMENTS OF A BASIC INTERNAL OPERATIONS POLICY
2](#b.-elements-of-a-basic-internal-operations-policy)

[B.1.00 STATEMENT OF PURPOSE 2](#b.1.00-statement-of-purpose)

[B.2.00 COMPLIANCE WITH LAWS REGARDING PRIVACY, CIVIL RIGHTS, AND CIVIL
LIBERTIES
2](#b.2.00-compliance-with-laws-regarding-privacy-civil-rights-and-civil-liberties)

[B.3.00 DEFINITIONS 2](#b.3.00-definitions)

[B.3.10 Definition of AGENCY 2](#b.3.10-definition-of-agency)

[B.3.20 Definition of INFORMATION 2](#b.3.20-definition-of-information)

[B.3.30 Definition of LAW 2](#b.3.30-definition-of-law)

[B.3.40 Definition of PUBLIC 2](#b.3.40-definition-of-public)

[B.4.00 SEEKING AND RETAINING INFORMATION
2](#b.4.00-seeking-and-retaining-information)

[B.4.10 WHAT INFORMATION MAY BE SOUGHT OR RETAINED
2](#b.4.10-what-information-may-be-sought-or-retained)

[B.4.20 METHODS OF SEEKING OR RECEIVING INFORMATION
2](#b.4.20-methods-of-seeking-or-receiving-information)

[B.4.30 MERGING OF INFORMATION FROM DIFFERENT SOURCES
2](#b.4.30-merging-of-information-from-different-sources)

[B.4.40 CLASSIFICATION OF INFORMATION REGARDING VALIDITY AND RELIABILITY
2](#b.4.40-classification-of-information-regarding-validity-and-reliability)

[B.4.50 CLASSIFICATION OF INFORMATION REGARDING LIMITATIONS ON ACCESS
AND DISCLOSURE
2](#b.4.50-classification-of-information-regarding-limitations-on-access-and-disclosure)

[B.5.00 INFORMATION QUALITY 2](#b.5.00-information-quality)

[B.6.00 COLLATION AND ANALYSIS OF INFORMATION
2](#b.6.00-collation-and-analysis-of-information)

[B.7.00 SHARING AND DISCLOSURE OF INFORMATION
2](#b.7.00-sharing-and-disclosure-of-information)

[B.7.10 SHARING INFORMATION WITHIN THE AGENCY AND WITH OTHER JUSTICE
SYSTEM PARTNERS
2](#b.7.10-sharing-information-within-the-agency-and-with-other-justice-system-partners)

[B.7.20 SHARING INFORMATION WITH FIRST RESPONDERS
2](#b.7.20-sharing-information-with-first-responders)

[B.7.30 SHARING INFORMATION FOR SPECIFIC PURPOSES
2](#b.7.30-sharing-information-for-specific-purposes)

[B.7.40 DISCLOSING INFORMATION TO THE PUBLIC
2](#b.7.40-disclosing-information-to-the-public)

[B.7.50 DISCLOSING INFORMATION TO THE INDIVIDUAL ABOUT WHOM INFORMATION
HAS BEEN GATHERED
2](#b.7.50-disclosing-information-to-the-individual-about-whom-information-has-been-gathered)

[B.8.00 INFORMATION RETENTION AND DESTRUCTION
2](#b.8.00-information-retention-and-destruction)

[B.8.10 REVIEW OF INFORMATION REGARDING RETENTION
2](#b.8.10-review-of-information-regarding-retention)

[B.8.20 DESTRUCTION OF INFORMATION
2](#b.8.20-destruction-of-information)

[B.9.00 ACCOUNTABILITY AND ENFORCEMENT
2](#b.9.00-accountability-and-enforcement)

[B.9.10 INFORMATION SYSTEM TRANSPARENCY
2](#b.9.10-information-system-transparency)

[B.9.20 ACCOUNTABILITY FOR ACTIVITIES
2](#b.9.20-accountability-for-activities)

[B.9.30 ENFORCEMENT 2](#b.9.30-enforcement)

[B.10.00 TRAINING 2](#b.10.00-training)

[C. ELEMENTS FOR INFORMATION SHARING SYSTEM MULTI-AGENCY AGREEMENTS
2](#c.-elements-for-information-sharing-system-multi-agency-agreements)

[C.1.00 STATEMENT OF PURPOSE 2](#c.1.00-statement-of-purpose)

[C.2.00 COMPLIANCE WITH LAWS REGARDING PRIVACY, CIVIL RIGHTS, AND CIVIL
LIBERTIES
2](#c.2.00-compliance-with-laws-regarding-privacy-civil-rights-and-civil-liberties)

[C.3.00 SHARING OF INFORMATION AMONG PARTICIPANTS
2](#c.3.00-sharing-of-information-among-participants)

[C.3.10 UNDERSTANDINGS REGARDING INFORMATION GATHERED AND SHARED
2](#c.3.10-understandings-regarding-information-gathered-and-shared)

[C.3.20 SHARING INFORMATION WITH OTHER JUSTICE SYSTEM PARTNERS
2](#c.3.20-sharing-information-with-other-justice-system-partners)

[C.4.00 USE AND DISCLOSURE OF INFORMATION ORIGINATING FROM ANOTHER
PARTICIPATING AGENCY
2](#c.4.00-use-and-disclosure-of-information-originating-from-another-participating-agency)

[C.4.10 DISCLOSURE OF INFORMATION ACCORDING TO ORIGINATING AGENCIES
ACCESS RULES
2](#c.4.10-disclosure-of-information-according-to-originating-agencies-access-rules)

[C.4.20 REPORTING POSSIBLE INFORMATION ERRORS TO THE ORIGINATING AGENCY
2](#c.4.20-reporting-possible-information-errors-to-the-originating-agency)

[C.5.00 PARTICIPATING AGENCY ACCOUNTABILITY AND ENFORCEMENT
2](#c.5.00-participating-agency-accountability-and-enforcement)

[C.5.10 UNDERSTANDINGS REGARDING ACCOUNTABILITY AND ENFORCEMENT
2](#c.5.10-understandings-regarding-accountability-and-enforcement)

[C.5.20 ENFORCEMENT OF PROVISIONS OF INFORMATION SHARING AGREEMENT
2](#c.5.20-enforcement-of-provisions-of-information-sharing-agreement)

[APPENDIX ONE: FEDERAL LAWS RELEVANT TO SEEKING, RETAINING, AND
DISSEMINATING JUSTICE INFORMATION
2](#appendix-one-federal-laws-relevant-to-seeking-retaining-and-disseminating-justice-information)

[APPENDIX TWO: STATE, LOCAL, AND TRIBAL LAWS POSSIBLY RELEVANT TO
SEEKING, RETAINING, AND DISSEMINATING JUSTICE INFORMATION
2](#appendix-two-state-local-and-tribal-laws-possibly-relevant-to-seeking-retaining-and-disseminating-justice-information)

[BIBLIOGRAPHY FOR SOURCES AND REFERENCES
2](#bibliography-for-sources-and-references)

**PRIVACY AND CIVIL RIGHTS**

**POLICY TEMPLATES**

**FOR JUSTICE INFORMATION SYSTEMS**

# INTRODUCTION

The atrocities of 9/11 brought into sharp focus the need to do a better
job of gathering and sharing information about terrorist and other
possible criminal activities and the individuals and organizations
likely involved. It also highlighted the need to do so in an efficient
manner, one that did not waste time and resources gathering irrelevant
information or gathering information about people unlikely to be
involved in illegal activities. Improving our capabilities would also
enhance public confidence in the ability of the justice/public safety
system to protect people, property and our way of life. There are a
number of aspects to improving our capacity to prevent harm, including
taking advantage of new technology, making better use of existing
technologies and systems, linking information systems, and improving our
justice system policies and business practices.

One element of a more robust information gathering and sharing system is
an up-to-date and comprehensive policy protecting individual's privacy
rights, civil rights, and civil liberties. Improved public safety does
not have to come at the expense of these rights. Rather, public safety
is further enhanced when individuals are sufficiently comfortable with
the integrity of justice information system operations that they are
willing to cooperate with and support them. Precisely drawn privacy,
civil rights, and civil liberty protection policies thus contribute to a
number of goals. First, they are legally required by the Constitution
and other laws adopted over time that regulate life in our society and
the operation of our public agencies. Second, a strong privacy policy is
also good public policy, as it is responsive to widely-held public
expectations about the collection and use of information about
individuals and the fair and open operation of a democratic government.
Third, it is the right thing to do.

The need for such policies has been consistently recognized in recent
efforts directed at the improvement of our information gathering and
sharing systems. It was succinctly summarized in "*Privacy and
Information Quality Policy Development for the Justice Decision Maker*"
developed as part of the Global Justice Information Sharing Initiative.
The need for such privacy policies is also supported by several
recommendations of [The National Criminal Intelligence Sharing
Plan]{.smallcaps} also developed as part of the Global Justice
Information Sharing Initiative. The objective of this document is to
support agencies and jurisdictions by providing policy templates for
justice system practitioners to use in their efforts to develop and
adopt comprehensive policies to protect privacy, civil rights, and civil
liberties principles applicable to their operations.

## AUDIENCE

The policy templates were developed for use by a law enforcement agency
or other justice system agency or jurisdiction, at the state, regional,
local, tribal, or federal level. The templates are designed to cover a
range of computer based justice information systems. They can be used by
agencies or jurisdictions that are:

-   Developing or modifying an incident or event-based records
    management system (RMS);

-   Developing or modifying a case management system (CMS) used by an
    agency or court;

-   Developing or modifying an integrated criminal justice information
    system, often referred to as an IJIS or CJIS, supporting the work of
    or used by several agencies or courts;

-   Developing or modifying a criminal history record information (CHRI)
    system;

-   Developing or modifying a criminal intelligence gathering system
    (CIS); or

-   Creating or joining a justice information sharing network.

The policy templates are intended for systems that seek or receive,
store, and make available information in support of criminal
investigations, crime analysis, law enforcement, protection of public
safety or health, or other matters handled through the justice system.
The templates are also relevant to the administration of justice,
strategic/tactical operations, and national security responsibilities*.*

## SCOPE OF POLICY TEMPLATES

The policy templates proposed here do not just seek to protect
individual privacy. The templates are more comprehensive, addressing:

-   Protection of PRIVACY rights;

-   Protection of CIVIL RIGHTS;

-   Protection of CIVIL LIBERTIES; and

-   INFORMATION QUALITY, which enhances the above protections.

The National Criminal Intelligence Sharing Plan defines the first three
terms as follows:

> The term ***privacy*** refers to individuals' interests in preventing
> the inappropriate collection, use, and release of personally
> identifiable information. Privacy interests include privacy of
> personal behavior, privacy of personal communications, and privacy of
> personal data. The U.S. Constitution does not explicitly use the word
> *privacy*, but several of its provisions protect different aspects of
> this fundamental right. Although there does not exist an explicit
> federal constitutional right to an individual's privacy, privacy
> rights have been articulated in limited contexts by the U.S. Supreme
> Court. Privacy protections are numerous and include protection from
> unnecessary or unauthorized collection of personal information (e.g.,
> eavesdropping), public disclosure of private facts, and shame or
> humiliation caused by release of personal information.
>
> (NCISP, pp. 10-11, *emphasis added, footnotes omitted*.)
>
> The term ***civil liberties*** refers to fundamental individual rights
> such as freedom of speech, press, or religion; due process of law; and
> other limitations on the power of the government to restrain or
> dictate the actions of individuals. They are the freedoms that are
> guaranteed by the Bill of Rights ― the first ten Amendments ― to the
> Constitution of the United States. Civil liberties offer protection to
> individuals from improper government action and arbitrary governmental
> interference in relation to the specific freedoms enumerated in the
> Bill of Rights.
>
> (NCISP, p. 10, *emphasis added*.)
>
> The term ***civil rights*** is used to imply that the state has a role
> in ensuring all citizens have equal protection under the law and equal
> opportunity to exercise the privileges of citizenship regardless of
> race, religion, sex, or other characteristics unrelated to the worth
> of the individual. Civil rights are, therefore, obligations imposed
> upon government to promote equality. More specifically, they are the
> rights to personal liberty guaranteed to all United States citizens by
> the Thirteenth and Fourteenth Amendments and by acts of Congress.
> Generally, the term civil rights involves positive (or affirmative)
> government action, while the term civil liberties involves
> restrictions on government.
>
> (NCISP, p. 10, *emphasis added*.)
>
> ***Information quality*** refers to various aspects of the information
> itself. The basic elements of information quality are: accuracy,
> completeness, currency, reliability, and context/meaning. This topic
> is addressed more specifically in section B.5.00 below.

While these templates address privacy, civil rights and civil liberties,
a review of the table of contents shows sections addressing
confidentiality, public access, records retention, security and data
management issues. Suggestions on these topics are included because they
all have implications for protecting privacy, civil rights and civil
liberties. Confidentiality is a subset of privacy, focusing on
information that may be available to certain people for certain
purposes, but which is not to be available to just anyone. Public access
relates to what information can be seen by the public, that is,
information that is not subject to privacy interests or rights. Who has
access to information, whether public or internal, is one goal of
security provisions. If information is not retained any longer than
necessary under applicable records retention schedules, then there is no
risk of improper disclosure after the records have been destroyed. The
reference to these topics is therefore included to highlight the
intersection of privacy, civil rights and civil liberties interests with
these operational aspects of justice system information management and
sharing.

It is also important to understand what the policy templates are
intended to do. Existing federal and state constitutional provisions,
statutes, rules and regulations proscribe certain conduct and prescribe
what can be collected and how it can be done. However, there are often
gaps in these provisions, areas where agencies and individuals can
exercise their discretion about what to do, or how to go about it.
Agencies may adopt policies or practices to limit this discretion and
often should to provide more robust protection of personal privacy,
civil rights and civil liberties. The objective of these templates is to
both identify and organize the applicable laws and to indicate where an
agency might adopt new or additional policies or practices.

## CONCEPTS UNDERLYING TEMPLATES

The policy templates proposed here are based on several fundamental
concepts that are intended to improve the effectiveness and success of
the justice information systems being developed. These basic concepts
include:

-   Supporting a proactive approach to managing the collection, use,
    analysis, retention, destruction, sharing, and disclosure of
    information.

-   Making decisions that are deliberate and considered when seeking or
    receiving, using, analyzing, retaining, destroying, sharing, and
    disclosing information.

-   Ensuring that the conduct of individuals in the collection, use,
    analysis, retention, destruction, sharing, and disclosure of
    information complies with applicable federal, state, local, and
    tribal laws.

-   Establishing policy language that is relevant to all levels of
    government -- local, regional, state, federal, and tribal.

-   Adopting policies that support intelligence-led policing.

## ORGANIZATION OF POLICY TEMPLATES

The policy templates proposed here are designed for use by any one of
several types of information gathering or sharing system. There are
several common models for the creation and operation of a records
management system (RMS), case management system (CMS), criminal history
record information (CHRI) system, criminal justice information system
(CJIS or IJIS), or criminal intelligence system (CIS) any of which may
be joined in an information sharing network. In order to accommodate all
of the common models, three sets of policy template provisions are
provided in this document:

1)  Privacy and civil rights protection elements for inclusion in the
    enabling legislation or authorization for the information system
    (Part A);

2)  A basic privacy and civil rights protection policy template covering
    the day-to-day operation of the system (Part B); and

3)  Privacy and civil rights protection elements for an inter-agency
    agreement[^1] for agencies participating in an information sharing
    network or system with which each participating agency will share
    information (Part C). One element of the agreement would be that
    each or the participating agencies have a basic privacy policy that
    contains the provisions specified in Part B.

Each of the several common models of justice information systems would
require a different combination of these three policy templates:

-   LOCAL SYSTEMS serving one agency or the agencies and courts in a
    city or county would need policy elements in its enabling
    legislation (Part A) and the basic policy (Part B). If the local
    system joined an information sharing system, an inter-agency
    agreement would be needed regarding the participation in the sharing
    system (Part C);

-   STATE WIDE SYSTEMS providing an information system for any agency in
    a state choosing to use it would need all three policies, enabling
    authority (Part A), a basic policy for the operation of the
    information system (Part B), and an inter-agency agreement (Part C)
    signed by each participating agency;

-   STATEWIDE NETWORK INTEGRATING LOCAL SYSTEMS would need enabling
    legislation for the state level system (Part A) and an inter-agency
    agreement with the participating local information systems (Part C);

-   REGIONAL INFORMATION SHARING SYSTEMS would need enabling
    authorization to establish the system (Part A) and an inter-agency
    agreement with the participating justice agencies (Part C). Regional
    systems could involve multiple state jurisdictions, multiple
    jurisdictions within a state, or a combination of federal state,
    local, or tribal justice system agencies.

-   AD HOC SYSTEMS that are created in response to an incident or event
    that rely on existing information systems in the participating
    agencies would need an inter-agency agreement (Part C) tailored to
    the incident or event.

## FORMAT OF POLICY TEMPLATES

The policy templates proposed here contain two types of provisions.
First, there is language reflecting generally accepted practices. These
are provisions that are straightforward and less controversial in
nature, common across states, or across jurisdictions within a state; or
that incorporate federal provisions applicable to everyone. Second,
there are provisions that typically are different in each state or local
jurisdiction or where a state or local jurisdiction has unique or
special requirements or limitations. These provisions must be tailored
or augmented to reflect the specific state or local laws or practices.
For these types of provisions the templates include either alternate
versions of common state or local policies, or a statement in brackets
indicating what state or local laws must be reviewed and reflected in
the policy language. Examples include state constitutional or statutory
provisions on what records are open to the public, or limitations on
what information can be sought or received, or what methods can or
cannot be used to seek or receive information.

Definitions of common terms with a specific meaning in the policy
templates are provided. These may need to be revised to reflect local
definitions or terminology. Additional definitions may also need to be
added for terms or phrases commonly used in the jurisdiction.

The policy provisions proposed below are organized in three parts. First
is the so called \"Black Letter\" language, the language that would
actually be included in an agency's policy. This language is in **bold**
type. Language which must be tailored to a jurisdiction's laws are in
***bold and italics*** within brackets. Following the specific policy
language is "Commentary" that elaborates on or explains the meaning and
intent of the Black Letter language. This Commentary is in italics. The
Commentary would generally not be included in a policy, but might be
relevant to interpretations of the policy language once it is adopted
and in use. Finally, source and reference information is provided for
the language or concepts in the proposed sections. These include
references to federal, state, or local statutes, regulations, or
existing policies protecting privacy, civil rights and civil liberties.
There are also references to the relevant provisions from the
*Guidelines on the Protection of Privacy and Transborder Flows of
Personal Data* promulgated by the European Organisation for Economic
Co-Operation and Development (OECD) and the Safe Harbor Privacy
Principles developed by the U.S. Department of Commerce for compliance
of US companies with the OECD provisions. These references are included
because of the frequent reference to them in the field, although it must
be noted that these provisions reflect European views of privacy, which
are narrower than American views, and that the OECD Guidelines include a
very broad law enforcement exception.

## HOW TO USE THE TEMPLATES

The policy templates provided here are designed both to provide a
framework for and the language of provisions to be included in enabling
legislation, an operations policy, or an agreement between two or more
governmental agencies (referred to here as an inter-agency agreement).
They do not necessarily constitute a complete document by themselves.
The intent is that the privacy, civil rights, and civil liberties
sections proposed here would be incorporated into a larger document
containing other provisions addressing the establishment or operation of
a justice information system. The concept is that the templates would be
used as follows:

-   Elements in Part A regarding the enabling authority would be
    included in the statute, ordinance, resolution, executive order, or
    other document authorizing or creating the entity overseeing the
    information system.

-   Elements in Part B regarding basic system operation would be
    included in a general policy applicable to the system, or they would
    become the central provisions of a stand-alone policy covering
    protection of privacy, civil rights, and civil liberties.

-   Elements in Part C could be included in an inter-agency agreement
    between all the participating agencies forming a joint system or
    information sharing network, or be an addendum or separate agreement
    signed by the participating agencies.

It is important to note that the policy template sections proposed here
are NOT intended to be used as is without modification. The objective of
the templates is to provide suggested language for use in drafting a
policy or an inter-agency agreement. In some sections alternative
language is provided, or alternatives or additions are suggested in the
commentary. One purpose of suggested alterative language is to raise
issues that may be relevant in one jurisdiction, but not another, or may
be relevant for one type of justice information system, but not another
type.

One part of the process[^2] of drafting a policy or agreement involves
an agency starting from the templates provided here. The language of
each element proposed here must be reviewed and conformed to the
applicable laws governing information gathering and sharing in the
participating jurisdiction(s). Some elements may not be relevant to the
information system for which the policy is being developed. Some
elements may not apply in the particular jurisdiction. In some cases
there may be no existing applicable law, and the agency will have to
determine what policy it will follow. There are several steps an agency
should take to adapt the language provided below to their justice
information system:

> 1\. Clarify what type of information sharing system will be covered by
> your policy -- is it for an RMS, CMS, IJIS, criminal intelligence
> system, or a combination? The nature of the system will determine the
> applicable language in key elements, for example, the data collection
> threshold, access and disclosure rules, etc.
>
> 2\. Determine what policy parts are needed based on existing laws and
> organizational structures. Do you need the enabling authority of Part
> A? Is the operating policy covered in part B to be stand-alone, or
> included in an existing policy? Are multiple agencies involved,
> suggesting the need for the inter-agency agreement proposed in Part C?
>
> 3\. Based on these decisions, the agency(ies) should review and edit
> each element proposed in the relevant Part(s) and:

a)  Modify the language of sections to include the language of the
    statutes, rules, standards, or policies applicable to the agency on
    the subject of this section. Usually the places where editing is
    needed are indicated in italics in brackets. However, sometimes the
    general rule stated in the proposed section will also need to be
    edited to comport with the law in your jurisdiction.

b)  Delete sections that are: 1) not relevant, based on the information
    collection and sharing laws applicable in your jurisdiction, 2) not
    relevant to the type of information sharing system for which the
    policy is being drafted, or 3) your agency chooses not to include
    and follow the provision;

c)  Add sections for provisions that are not addressed here, but are
    required by your jurisdiction's information collection and sharing
    laws;

d)  Change key terms to those used in your jurisdiction. For example,
    the official title of your agency should be inserted in the
    definition of "agency" in section B.3.10, and the name of the
    information system substituted where indicated.

e)  Add details to lists identified in brackets in the sections. For
    example, a list of the types of information kept about an individual
    that are not to be disclosed to the individual in section B.7.50 b)
    4); and

f)  Add details where indicated of the office or person a user should
    contact to obtain further information or ask questions, etc.

It would be very useful during this drafting process for the drafting
committee to keep track of discussions and options considered, for
example in minutes. This record can serve as valuable "legislative
history" during subsequent interpretation of the policy. It also
demonstrates the thoroughness of the consideration, or any policy gaps
revealed.

Once the editing has occurred and necessary additions and changes are
made, the draft policy should be submitted to the oversight body. That
body should tentatively adopt the draft and circulate it among
stakeholders for comment. After comments are received, the draft should
be modified based on the comments received, and then adopted by the
oversight body.

# A. ELEMENTS OF ENABLING LEGISLATION OR AUTHORIZATION

The following provisions should be included in the instrument or
document authorizing the creation of, and designating the oversight body
for, the justice information system. The instrument could be an enabling
statute, resolution, ordinance, or executive order at the federal,
state, local, or tribal level. Not all justice information systems have
an explicit enabling document. However, the authority to create the
system probably exists, at least in part, in budget authorizations, or
laws describing the conduct of the system which imply its existence. It
is probably better to have an explicit enabling statement, for
transparency and accountability purposes as well as to clarify the goals
and limitations of the system. However, the statement should state
broad, general principles, not details. The details should be in the
operational policy that includes the sections suggested in part B below.

## A.1.00 STATEMENT OF PURPOSE

**The goal of establishing and maintaining the \[*add the name of the
system and specify what type of system is involved, for example, a
records management system, case management, integrated justice
information system, or criminal intelligence system, etc.*\] is to
further the following purposes:**

a)  **Increase public safety and improve national security;**

b)  **Minimize the threat and risk of injury to specific individuals;**

c)  **Minimize the threat and risk of injury to law enforcement and
    other first responder personnel;**

d)  **Minimize the threat and risk of damage to real or personal
    property;**

e)  **Protect individual civil rights, civil liberties, and privacy
    rights and other protected interests;**

f)  **Protect the integrity of the criminal investigatory, criminal
    intelligence, and justice system processes and information;**

g)  **Minimize reluctance of individuals or groups to use or cooperate
    with the justice system;**

h)  **Support the role of the justice system in society;**

i)  **Promote governmental legitimacy and accountability;**

j)  **Not unduly burden the ongoing business of the justice system;
    and**

k)  **Make the most effective use of public resources allocated to
    justice agencies.**

***Commentary***

*The section identifies 11 inter-related purposes motivating the
development and operation of any type of justice information system.
Although some do not appear to directly relate to protection of privacy,
civil rights and civil liberties, each contributes to the legitimacy of
the system, thereby increasing a public sense of protection of these
basic rights and interests.*

*These purposes will be achieved with a justice information system that
provides complete, accurate, and timely information to justice system
decisions makers, improves the quality of justice system decisions,
increases the rate of apprehension and incarceration of serious
offenders, etc. Proper conduct on the part of individuals gathering
information and who have access to information in the system will also
further these purposes.*

*The purposes are not mutually exclusive, although some may be competing
in some circumstances. They are not listed in priority order, although
considerations of efficiency, subsection j), and effective use of public
resources, subsection k), would not trump the interests in security,
public and individual safety, and complying with the law.*

*Subsection a) Increase Public Safety and Improve National Security. The
ultimate objective of a justice information system is to enhance public
safety and improve the nation's security. This objective is accomplished
by gathering and sharing information so as to increase the government's
ability to detect, deter, and defeat criminal and terrorist activities.
This includes both reactive and proactive activities. Reactive
activities include detecting, responding to, and investigating suspected
criminal or terrorist activities, and apprehending suspected criminals,
prosecuting cases, and otherwise solving crimes. The expectation is that
the prosecution of criminal acts will suppress future crimes, thereby
improving public safety. Proactive activities include anticipating,
identifying, deterring, preventing and defeating criminal and terrorist
activities. The expectation is that effective, integrated justice
information systems will protect public safety by preventing tragedies
like the 9/11 attacks or the Oklahoma City bombing.*

*Subsection b) Minimize the Threat and Risk of Injury to Specific
Individuals. Sometimes the risk revealed through the gathering and
sharing of information through a justice information system will be
specific to an individual or small group of people, as opposed to the
public at large. Protecting individuals is a subset of public
protection. Note that there are two aspects to this type of protection.
One involves gathering and using information about a threat to a
specific person, and the other involves protecting information in the
justice information system about a specific person from disclosure that
would endanger the person's safety. Personal safety can be served by
restricting access to information that could be used to injure someone
else, physically, psychologically or economically. Examples of potential
injury to individuals based on information that could be in a justice
information system include: intimidation of, or physical violence
towards, victims, witnesses, or jurors, repeated domestic violence,
sexual assault, stalking, and identity theft.*

*Subsection c) Minimize the Threat and Risk of Injury to Law Enforcement
and Other First Responder Personnel. Another subset of public safety
relates to the risk to law enforcement personnel and first responder
personnel. Information gathered and kept in a justice information system
can be used to identify threats and prevent injury to those responding
to criminal incidents, natural disasters, or health emergencies of any
type.*

*Subsection d) Minimize the Threat and Risk of Damage to Real or
Personal Property. Criminal and terrorist activities can also threaten
or damage property. Gathering, analyzing and sharing information can
therefore also protect property, or minimize loss of property
attributable to criminal or terrorist activity. There is an additional
aspect to this -- protection of critical infrastructure. Justice system
information can detect and reduce threats to public safety, public
health and our way of life resulting from the crippling or destruction
of infrastructure such as power and water systems, transportation
corridors, or use of chemical and biological weapons.*

*Subsection e) Protect Individual Civil Rights, Civil Liberties, and
Privacy Rights and Other Protected Interests. There are two aspects to
this purpose. One relates to the role of government and the other to how
government agencies conduct themselves. One role of the government is to
protect individuals' privacy, civil rights and civil liberties; this is
one aspect of public safety. Civil rights are obligations imposed upon
government to promote equality. The state has a role in ensuring all
citizens have equal protection under the law and equal opportunity to
exercise the privileges of citizenship regardless of race, religion,
sex, or other characteristics unrelated to the worth of the individual.
Justice information systems can assist agencies in this affirmative duty
to protect citizens. The second aspect requires agencies to go about
their work in a lawful manner. Civil liberties offer protection to
individuals from improper government action and arbitrary governmental
interference in the conduct of their lives. The interest in privacy is
protected by preventing inappropriate access to certain kinds of
information.*

*Protecting and respecting civil rights, civil liberties and privacy
also contributes to public trust and confidence that the justice system
understands its role and promotes the rule of law.*

*Finally, it is important to remember that not everyone cataloged in the
justice information system is a criminal or terrorist. As part of
protecting public safety the justice system will collect and maintain
information about victims, witnesses, and those who come to the
attention of the justice system. Care should be taken that the privacy
rights and interests of such 'third persons' are not compromised by
inappropriate collecting, storage and disclosure of information in the
justice system.*

*Subsection f) Protect the Integrity of the Criminal Investigatory,
Criminal Intelligence, and Justice System Processes and Information.
Creating and maintaining a justice information system should support
justice processes, not undermine them. The activities associated with a
justice information system, the collection, storage, analysis, and
sharing of information, should contribute to the integrity of the
result. This will occur if the operations are conducted in a lawful
manner and the outcomes are, and appear to be, just. The integrity of
the system is enhanced when the information collected is relevant to the
role of the system, is of high quality, and disclosure is properly
managed so as not to compromise ongoing investigations or monitoring of
activities.*

*Subsection g) Minimize Reluctance of Individuals or Groups to Use or
Cooperate with the Justice System. Individuals and groups will use and
cooperate with the justice systems if they perceive it to be lawful and
effective. People will be reluctant to use or support the justice system
if they perceive that the information gathered is irrelevant, that
public officials are operating "outside the law," or that the
information is gathered in a manner that disrespects their rights or
privacy interests. There may also be an unintended effect of encouraging
use of alternative 'solutions,' whether in the form of self-help or
extra-judicial actions. Conversely, people will have confidence in and
support a justice system that protects them, and does so in a manner
that respects the law.*

*Subsection h) Support the Role of the Justice System in Society. The
role of the justice system is to protect public safety and prevent
terrorism. A justice information system should support this role by
increasing the effectiveness and efficiency of the justice system. In
order for people to know this they must be aware of the existence of the
justice information system and be able to assess the efficacy of its
operations. This requires both openness and accountability regarding the
operation of the justice information system. Violations of the operating
policies of the system must be identified and appropriate sanctions
enforced.*

*Subsection i) Promote Governmental Legitimacy and Accountability. The
operation of the justice information system must enhance accountability
and promote legitimacy. Having operational policies available to the
public, monitoring performance and compliance, and enforcing the
policies promotes accountability. A justice information system that
integrates privacy and security protections and can log activity can be
held accountable. These capabilities also promote greater public trust
and confidence in the justice system, giving it greater legitimacy*

*Subsection j) Not Unduly Burden the Ongoing Business of the Justice
System. The policies and operation of a justice information system
should not unduly burden the justice system in fulfilling its
fundamental role -- protecting the public and individuals. Keeping too
much, or irrelevant, information will not only be unhelpful, it may even
impede work. Unnecessary or improper disclosure of information may also
impede operations or diminish the integrity of investigations.*

*Subsection k) Make the Most Effective Use of Public Resources Allocated
to Justice Agencies. Sharing information leverages those public
resources allocated to law enforcement and national security in several
ways. Maintaining accurate, complete and timely information in a justice
information system reduces the waste of public resources from chasing
false leads, duplicate information collection and entry, and erroneous
linking of information from several sources. A robust information
sharing system will also allow the larger justice system to "connect the
dots" in ways that have not previously been possible.*

***Sources and References:***

*28 CFR Part 20, section 20.1.*

*28 CFR Part 23, sections 23.1 and 23.30(e).*

*CCJ/COSCA Guidelines, section 1.00*

*Fusion Center Guidelines, Mission Statement and Goals, Guideline 2.*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, Goals, p. 1.*

## A.2.00 COMPLIANCE WITH LAWS REGARDING PRIVACY, CIVIL RIGHTS, AND CIVIL LIBERTIES

**a) The \[*add the name of the information system governing body*\],
and all participating agencies, employees and users will comply with all
laws protecting privacy, civil rights, and civil liberties in the
collection, use, analysis, retention, destruction, sharing, and
disclosure of information.**

**b) The \[*add the name of the information system governing body*\]
will adopt internal operating policies requiring compliance with all
laws protecting privacy, civil rights, and civil liberties in the
collection, use, analysis, retention, destruction, sharing, and
disclosure of information in the system.**

***Commentary***

*These provisions provide an explicit commitment by the agency and key
participants to comply with all laws protecting privacy rights, civil
rights, and civil liberties of individuals and organizations about whom
the agency or users may collect and share information. It also requires
adoption of policies effectuating compliance.*

*Since this provision is intended to be in the enabling legislation, it
is stated broadly. There may be a large number of laws, whether
legislative or judicial in origin, which specify in detail what this
provision means, these should not be listed here. Rather, their
requirements should be incorporated in the provisions in Part B below.*

***Sources and References:***

*28 CFR Part 23, sections 23.1 and 23.2.*

*DOJ Order on Safeguarding Unclassified Sensitive Information, section
6.f.*

*NCISP, Recommendations 6 and 9.*

*RISS Privacy Policy.*

## A.3.00 AGENCY TRANSPARENCY AND ACCOUNTABILITY

**a) The existence of the \[*add the name of the justice information
system*\] will be made public and the system's policies on protection of
privacy, civil rights, and civil liberties will be made available to the
public on request and through any public web sites providing information
about the system.**

**b) The \[*add the name of the information system governing body*\]
will adopt provisions to insure accountability for compliance with all
applicable laws in the collection, use, analysis, retention,
destruction, sharing, and disclosure of information.**

***Commentary***

*Making the existence of the system public contributes to the
credibility and legitimacy of the agency and information system by
demonstrating that the agency has nothing to hide, and is amenable to
appropriate public oversight. It thus promotes purposes g), h) and i) of
section A.1.00.*

*Subsection b) states that the agency will be accountable for the use of
the system and in its operation. "Applicable laws" will include federal,
state, local, or tribal statutes, regulations, rules, court decisions
and policies.*

***Sources and References:***

*NCISP, Recommendation 14.*

*NCISP Recommended Outreach Plan generally*

# B. ELEMENTS OF A BASIC INTERNAL OPERATIONS POLICY

The objective of a policy protecting privacy, civil rights, and civil
liberties is to provide justice agency personnel, systems users, and
contractors with guidelines and principles regarding the collection,
analysis, use, retention, destruction, sharing and disclosure of
information kept in any type of justice information system. The
provisions suggested in this part are intended to be incorporated into
the general operating policies applicable to the justice information
system, or can form the substantive core of a stand-alone policy
covering privacy, civil rights and civil liberties. These provisions are
intended to provide explicit and detailed guidance to agency personnel
and other users about what the applicable laws provide or require for
each of the topics covered.

Following the statement of purpose and definition sections the policy
elements are arranged in the order in which information is generally
handled in a system. The template begins with the collection of
information, and then addresses analysis, use, dissemination and access,
and retention. In addition there are provisions related to the
administration of the system, including agency accountability, policy
enforcement, and the training of personnel.

## B.1.00 STATEMENT OF PURPOSE

**The goal of establishing and maintaining the \[*add the name of the
system and specify what type of system is involved, for example, a
records management system, case management, integrated justice
information system, or criminal intelligence system, etc.*\] is to
further the following purposes:**

a)  **Increase public safety and improve national security;**

b)  **Minimize the threat and risk of injury to specific individuals;**

c)  **Minimize the threat and risk of injury to law enforcement and
    other first responder personnel;**

d)  **Minimize the threat and risk of damage to real or personal
    property;**

e)  **Protect individual civil rights, civil liberties, and privacy
    rights and other protected interests;**

f)  **Protect the integrity of the criminal investigatory, criminal
    intelligence, and justice system processes and information;**

g)  **Minimize reluctance of individuals or groups to use or cooperate
    with the justice system;**

h)  **Support the role of the justice system in society;**

i)  **Promote governmental legitimacy and accountability;**

j)  **Not unduly burden the ongoing business of the justice system;
    and**

k)  **Make the most effective use of public resources allocated to
    justice agencies.**

***Commentary***

*See commentary under section A.1.00 in Part A above.*

***Sources and References:***

*See Sources and References under section A.1.00 in Part A above.*

## B.2.00 COMPLIANCE WITH LAWS REGARDING PRIVACY, CIVIL RIGHTS, AND CIVIL LIBERTIES

**All participating agency personnel, personnel providing information
technology services to the agency, private contractors, and users will
comply with all laws protecting privacy, civil rights, and civil
liberties in the collection, use, analysis, retention, destruction,
sharing, and disclosure of information.**

***Commentary***

*See commentary under section A.2.00 a) in Part A.*

***Sources and References:***

*See Sources and References under section A.2.00 in Part A above.*

## B.3.00 DEFINITIONS

The sections in this part provide definitions for word or phrases
regularly used in this policy to explain their meaning in the context of
this policy.

### B.3.10 Definition of AGENCY 

**"Agency" refers to \[*state the official title of the agency to which
this policy applies*\].**

***Sources and References:***

*28 CFR Part 23, section 23.3(b)(4)*

*DOJ Order on Safeguarding Unclassified Sensitive Information, sections
2.a., 4.a., and 4.b.*

***Sources and References:***

*28 CFR Part 23, section 23.3(b)(1)*

### B.3.20 Definition of INFORMATION

**"Information" includes individual pieces of or collections of pieces
of data about people, organizations, events, incidents, objects, or real
or personal property, whether in physical, manual, or electronic form,
including documents, writings, electronic representations of text or
graphic documents, an electronic image, including a video image, of a
document, evidence, object or event, information in the fields or files
of an electronic database, or an audio or video recording, analog or
digital, of an event or notes in an electronic file from which a
transcript of an event can be prepared.**

[]{.mark}

***Sources and References:***

*CCJ/COSCA Guidelines, sections 3.10 and 3.40.*

*Computer Matching and Privacy Act, 5 U.S.C. §552a(a)(4).*

*[Definitions of "criminal intelligence information"]{.underline}*

*28 CFR Part 23, section 23.3(b)(3)*

*[Definitions of "criminal history record information"]{.underline}*

*28 CFR Part 20, section 20.3(d)*

*National Crime Prevention and Privacy Compact, 42 USC §14616, Article I
(4)*

*[Definitions of "personally identifiable information"]{.underline}*

*Alaska Statutes, section 44.99.350 (2).*

*Federal Internal Revenue Service, 26 U.S.C. 6103(b)(6), definition of
"Taxpayer information."*

*Washington Governor's Executive Order 00-03.*

*Wisconsin Statutes, sections 19.62(5).*

### B.3.30 Definition of LAW

**As used in this policy "law" includes any federal, state, local, or
tribal statute, ordinance, regulation, executive order, or court rule,
decision, or order, as construed by appropriate federal, state, tribal,
or local officials or agencies.**

***Sources and References:***

*28 CFR Part 20, section 20.21(b)(2))*

### B.3.40 Definition of PUBLIC

**"Public" includes:**

> **a) any person and any for-profit or non-profit entity, organization
> or association;**
>
> **b) any governmental entity for which there is no existing specific
> law or policy authorizing access to the agency's information;**
>
> **c) media organizations; and**
>
> **d) entities that seek or receive and disseminate information for
> whatever reason, regardless of whether it is done with the intent of
> making a profit, and without distinction as to nature or extent of
> those requesting information from the agency.**

**"Public" does not include:**

> **e) employees of the agency;**
>
> **f) people or entities, private or governmental, who assist the
> agency in the operation of the justice information system; and**
>
> **g) public agencies whose authority to access information gathered
> and retained by the agency is specified in law.**

***Commentary***

*Subsection b) states that if there are no explicit provisions
applicable to an agency regarding access and use of the information in
the system, the employees of the agency will be treated as members of
the general public for purposes of this policy.*

*Subsection f) includes other governmental agencies as well as private
contractors who provide services to the agency for the operation of the
information system.*

[]{.mark}

***Sources and References:***

*CCJ/COSCA Guidelines, section 2.00*

## B.4.00 SEEKING AND RETAINING INFORMATION

The sections suggested in this subpart relate to the collection of
information and its retention by the agency. The provisions address: 1)
what information the agency is authorized to seek and retain, 2) what it
is prohibited from seeking or retaining, 3) what methods are permitted
for seeking information, and 4) the basis for merging information from
different sources. Finally, there are provisions about categorizing
information as regards its validity and reliability and to whom it may
be disclosed.

### B.4.10 WHAT INFORMATION MAY BE SOUGHT OR RETAINED

**a) This agency will only seek or retain information**

> **\[*for a records management system, case management system, or other
> type of justice information systems describe the standard governing
> what information may be sought or received and retained in the
> system*\] relevant to the investigation and prosecution of suspected
> criminal or terrorist incidents, any resulting justice system
> response, the enforcement of sanctions, orders, or sentences, the
> prevention of crime, or that is useful in the study of crime and in
> the administration of criminal justice.**
>
> **\[*for a criminal history record system*\] collected by criminal
> justice agencies on specific individuals consisting of official
> descriptions and notations of arrests, detentions, warrants,
> complaints, indictments, informations, or other formal criminal
> charges, and any disposition relating to these charges, including
> acquittal, sentencing, pre- or post-conviction supervision, and
> release, but not \[*include any exceptions that will not be kept in
> the system, for example, identification information, such as
> fingerprint records, if such information does not indicate the
> individual's involvement with the criminal justice system*\].**
>
> **\[*for a criminal intelligence system*\] where there is reasonable
> suspicion**
>
> **that a specific individual(s) or organization(s) has been involved
> in, is involved in, or is planning a criminal or terrorist activity or
> activities that present a threat to an individual, the community, or
> the nation and the information is relevant to the activity.**

**b) This agency will not seek or retain information about an individual
or organization solely on the basis of their religious, political or
social views, their participation in a particular organization, or
because of their race, ethnicity, place of origin, sex, or sexual
orientation. Such information can be sought and retained if it is:**

> **1) relevant to whether an individual or organization has engaged in,
> is engaging in, or is planning a criminal or terrorist activity or
> activities that present a threat to individuals, the community or the
> nation; or**
>
> **2) needed by the agency to identify an individual, for the agency's
> effective operation, or to provide services to the individuals the
> agency serves.**

**c) A record shall be kept of the source of all information retained by
the agency.**

***Commentary***

*This section addresses the [content]{.underline} of information, as
opposed to the [means]{.underline} by which the information is acquired
(see section B.4.20 below). The intent of this section is to explicitly
state the "rules" the agency will follow regarding what information it
may seek or retain. It addresses:*

-   *What information the agency is authorized to seek and retain;*

-   *Limitations on what information can be sought and retained; and*

-   *What information the agency is prohibited from seeking and
    retaining.*

*Note also that the sections refers to information retained in a justice
information system, it does not address information retained in paper
form that is not in the electronic information system.*

*The language of the section speaks in terms of "seek or retain" because
it focuses on the actions of the agency, not of others.* [^3] *Laws that
authorize or limit the actions of the government apply when the agency
takes action, not when it passively receives information (addressed in
section B.4.20 b)). However, such information cannot be kept unless the
appropriate legal standard is met for retaining information.*

*Subsection a) states the standard for both actively seeking and for
retaining information for the type of justice information system covered
by the policy. The standard for basic RMS, CMS or IJIS systems is
general and fairly broad. The standard provided for criminal history
record systems is based on the definition in the National Crime
Prevention and Privacy Compact, 42 USC §14616, repeated in 28 CFR Part
20, section 20.3(d). The standard for criminal intelligence system is
derived from 28 CFR Part 23, section 23.20(a). Your agency may have
different standards for different types of information, for example
"mere suspicion" for most types of information and "reasonable
suspicion" for information subject to greater protection regarding
collection, retention, or disclosure. This section should include all
the various standards.*

*Because it also covers the retention of information the standard should
also address what can be done with information that is received by the
agency, but was not actively sought. There is often a basis to seek or
receive additional information where reasonable suspicion or probable
cause has not yet been established, for example based on an anonymous
tip or letter. Such information must be kept long enough for a
preliminary inquiry of the tip and during the initial analysis of any
further information gathered to determine whether the information
reaches the threshold that allows it to be retained.*

*Subsection b) states that the agency will not seek or receive specific
types of information about individuals or organizations if doing so
violates federal, state, tribal, or local laws. Descriptions of possible
relevant federal, state, and local laws are listed in Appendix One.*

*The subsection is not intended to prevent gathering and use of
information that is relevant to justice purposes, subsection b) 1), or
the agency's operation, subsection b) 2). For example, it does not
prevent gathering of information about an organization or its members
where the organization is engaged in criminal activity, even if the
criminal activity is not the main purpose of the organization.
Similarly, it would not prevent the gathering of such information where
it is relevant to investigating or preventing criminal or terrorist
activity, for example information about witnesses, victims, family
members, associates, etc., concerning their credibility, or that relates
to an element of the crime (for example a hate crime), etc. It also does
not prevent an agency from collecting such information if it is needed
by the agency to do its work, for example, noting an individual's race
for identity purposes or a correctional facility collecting information
on the religious practices of those in its custody.*

*Subsection c) requires the agency to maintain information about the
source of information that it keeps. Source information is relevant to
categorizing information regarding its reliability and validity pursuant
to section B.4.40 a). This is also necessary in order to assess,
including during an audit, whether the collection of information has
been in compliance with this policy and applicable laws. Note that the
rule regarding access to and disclosure of source information may be
different from the rule about the information provided by the source.*

***Sources and References:***

*[Generally]{.underline}*

*Computer Matching and Privacy Act, §552a(e)(1).*

*IACP Model Statutes Project, section on Racial Profiling.*

*OECD Collection Limitation Principle no. 7.*

*OECD Purpose Specification Principle no. 9.*

*RISS Privacy Policy.*

*Safe Harbor Privacy Principles, Notice, Choice, and Data Integrity
principles.*

*Washington Governor's Executive Order 00-03, item #4*

*[Subsection a) -- Criminal Intelligence Systems]{.underline}*

*28 CFR Part 23, sections 23.20(a), (b), and (n) and 23.3(b)(3).*

*IACP, Criminal Intelligence Model Policy, sections II, IV.C.3. and
IV.F.1.*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, Information Submission Criteria (p.3) and Inquiry Procedures
(pp. 5-6).*

*[Subsection a) -- Criminal History Information Systems]{.underline}*

*28 CFR Part 20, section 20.3(d).*

*Arizona Revised Statutes, Section 41-1750*

*[Subsection b) -- Information not to be collected]{.underline}*

*Computer Matching and Privacy Act, §552a(e)(7).*

### B.4.20 METHODS OF SEEKING OR RECEIVING INFORMATION

**a) Information gathering and investigative techniques used by this
agency will comply with all applicable laws.**

**b) This agency will not accept, seek, receive, or retain information
from an individual or non-government information provider, who may or
may not receive a fee or benefit for providing the information, if the
agency knows or has reason to know that:**

1)  **the** **individual or information provider is legally prohibited
    from obtaining or disclosing the specific information sought,**

2)  **the individual or information provider used methods for collecting
    the information that the agency itself could not legally use,
    \[*include any exceptions regarding illegally obtained
    information*\]**

3)  **the specific information sought from the individual or information
    provider could not legally collected by the agency, or**

4)  **the agency has not taken the steps necessary to be authorized to
    collect the information.**

**c) Information gathering and investigative techniques used by this
agency will be no more intrusive or broad scale than necessary in the
particular circumstance to gather information it is authorized to seek
or retain pursuant to section *\[B.4.10*\].**

***Commentary***

*This section addresses the [means]{.underline} of seeking and receiving
information, as opposed to its [content]{.underline} (which is addressed
in section B.4.10 above). It expressly states that information gathering
will be done in a manner consistent with applicable laws. The limitation
is as to both the method or technique, subsections a) and b), and the
breadth of the inquiry or search, subsection c.*

*Subsection a) states the basic requirement that information gathering
techniques and methods comply with applicable law. Federal laws that
guide or limit information collection techniques by governmental
agencies include are identified in Appendix One. There may also be state
laws that guide or limit information collection techniques by
governmental agencies. Lists of possible state laws, and topics and
activities that may be covered by state laws are also provided in
Appendix One.*

*Subsection b) addresses information from both individuals and third
party, non-governmental sources. This would include unsolicited
information as well as that actively sought by the agency. Unsolicited
information would include information received anonymously. Actively
sought information would include that from organizations that maintain
and make available information about individuals such as credit agencies
or other information brokers. It would also apply to information
obtained through the Internet using a search engine. The intent of the
subsection is to prevent an agency or its personnel from circumventing
the law applicable to it by using an individual or a non-governmental,
third party source to obtain information.*

*The subsection requires that information sought or received from an
individual or non-government source must have been obtained legally and
gathered in compliance with the agency's own information gathering
authority and limitations. No detailed procedure or legal standard is
specified as to how it is to be established that the information was
obtained legally by the third party. If the information is of a nature
or type which the agency itself could not lawfully obtain directly, that
would provide notice to the agency personnel obtaining the information
that they should ascertain whether the information was obtained legally
by the third party and that it is legal for the third party to provide
the information to the agency. Sometimes it will not be apparent how the
information was obtained or whether it was obtained legally.*

*One example is an anonymous tip. In this type of situation the agency
can certainly use the information as a basis to investigate further, but
information should not retained in the justice information system
without the necessary standard or predicate specified in section B.4.10
a) being met. A more problematic example would be information about the
presence of bomb making materials provided by a burglar where it is
apparent he or she discovered the materials in the course of a burglary.
Your agency may want to include some sort of exception in this section
for such circumstances, one that states your existing policy regarding
such information.*

*Subsection b) 1) provides that the agency cannot use information from
this source if it is unlawful for the individual or information provider
to obtain or share the information.*

*Subsection b) 4) requires the agency to comply with applicable
procedures for obtaining authority to collect information: For example,
if a search warrant is required to gather certain information, this
provision requires the agency to obtain a proper warrant, even if the
information will be provided by a third party.*

*Note that the section would permit an agency to get information from a
third party source who has aggregated information from many sources
which the agency itself could not lawfully aggregate, as long as the
source obtained the information lawfully and the agency could lawfully
gather the specific information sought from the third party. By
implication the section also requires the agency to delete information
that is subsequently found to have been obtained unlawfully (see B.5.00
c) regarding deleting information).*

*Finally, subsection b) makes it clear that whether or not the third
party received a fee or other benefit for the information is not
relevant to whether the agency can obtain and retain the information.*

***Sources and References:***

*28 CFR Part 23, sections 23.20(d) and (k).*

*Computer Matching and Privacy Act, §552a(e)(2).*

*IACP, Criminal Intelligence Model Policy, Section IV.C.2.*

*IACP Model Statutes Project, section on Racial Profiling.*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, Information Submission Criteria (p.4).*

*OECD Collection Limitation Principle no. 7.*

*OECD Purpose Specification Principle no. 9.*

*RISS Privacy Policy.*

### B.4.30 MERGING OF INFORMATION FROM DIFFERENT SOURCES

**a) Information about an individual or organization from two or more
sources will not be merged unless there is sufficient identifying
information to reasonably conclude that the information is about the
same individual or organization.**

**b) The combination of identifying information sufficient to allow
merging will consist of**

> **\[*specify a standard or combination of information or
> characteristics that are considered adequate to allow merging of
> information, for example, fingerprints*\].**

**c) \[*Consider adding the following subsection to allow tentative
matching of information from more than one source:*\] If the matching
requirements cannot be fully met, the information may be associated if
accompanied by a clear statement that it has not been adequately
established that the information relates to the same individual or
organization.**

***Commentary***

*This section addresses a concern that becomes of greater significance
as more information is shared across agencies and with private sector
partners and as more information is acquired from third party sources.
Justice system effectiveness is leveraged by the ability to combine
information from different sources to develop a complete picture of
activities and threats without duplicating efforts -- to "connect the
dots." Accurate merging has a number of benefits -- better
identification of individuals, more complete information on persons of
interest, fewer false leads, less opportunity for fraud and abuse by
suspects, and less risk of bad press or lawsuits from mis-identification
or erroneous merging. However, work will be hampered and resources
wasted if information that does not relate to the same person or
organization is erroneously combined as if it did. The section
establishes the basis for a "digital due diligence" before merging
information from separate sources.*

*Subsection b) requires specifying a standard for merging information.
For purposes of this section "merged" means that information from
different sources is linked in the system as referring to the same
individual or organization.*

*Examples of information or characteristics that, in combination, could
establish that information from two or more sources is, indeed, about
the same individual and may be merged include:*

-   *Full Name;*

-   *Date of Birth;*

-   *Law enforcement or corrections system identification number,
    usually based on fingerprints;*

-   *Photograph;*

-   *Physical description: height, weight, eye and hair color, race,
    ethnicity, tattoos, scars, etc.;*

-   *Social Security Number;*

-   *Driver's License Number*

-   *Other biometrics, such as DNA, retinal scan, facial recognition,
    etc.*

*A complicating aspect is that matching assumes the data sources both
have the same meaning and coding for the factors upon which matching is
done, for example, use the same conventions regarding how to format and
spell a person's name.*

*In a non-criminal setting one way to verify a match is to check with
the person about whom information being matched (this is the approach of
the federal Computer Matching and Privacy Act). This is often not
advisable, and may not be possible, in a criminal justice setting.*

*Subsection c) addresses the circumstance where it appears that
information from different sources relates to the same person or
organization, but the standard for merging has not been fully met. The
provision requires it to be made clear that the standard has not been
met even if the preliminary assessment is that the information appears
to be about the same person or organization. Pending the collection of
further information to meet the standard, there still may be a value in
indicating the possibility of a match for those querying the information
system (see section B.4.40 a)) on categorizing information regarding its
validity and reliability, etc. A common circumstance where this is
relevant is in gang monitoring.*

*There are several approaches for indicating the match is incomplete. A
disclaimer could be included with any report containing the information
or with the response to a query. What is needed is the electronic
equivalent of a "red stamp on the file." There could also be a
requirement for independent verification of the match by anyone querying
and using the information.*

***Sources and References:***

*Colo. Rev. Stats., sec. 24-72-305.4 - Access to criminal history or
arrest information for applicants for regulated professions -
fingerprints for matching*

*Computer Matching and Privacy Act, §552a; definition of matching --
§552a(a)(8); matching agreement §552a(o); Data Integrity Boards
-§552a(u); law enforcement exception -- §552a(a)(8)(B)(iii), (v), and
(vi).*

*National Crime Prevention and Privacy Compact, 42 USC §14616, Article I
(20) "positive identification," Article V (a), and Article V (e).*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, Information Submission Criteria (p.4).*

*Minnesota Statutes 2004, Chapter 13B - Matching Programs; Computerized
Comparison of Data*

*NASCIO Compendium, pp. 78-80.*

*Wisconsin Statutes, sections 19.62(3) \[definition of matching
program\], and 19.69.*

*[Subsection b) -- independent verification of match]{.underline}*

*Minnesota Statutes 2004, section 13B.03.*

*Wisconsin Statutes, section 19.67(b)*

*[Checking criminal history or arrest information for applicants for
regulated professions]{.underline}*

*Colo. Rev. Stats., sec. 24-72-305.4; use of fingerprints for matching
in subsection (1)*

### B.4.40 CLASSIFICATION OF INFORMATION REGARDING VALIDITY AND RELIABILITY

**a) At the time of retention in the system the information will be
categorized regarding its content validity, and source reliability.**

**b) The categorization of existing information will be reevaluated when
new information is gathered that has an impact on the validity and
reliability of existing information.**

***Commentary***

*The objective of the categorization is to let subsequent users assess
the extent to which they can rely on the information. The expectation is
that when the information is first retained it will be 'coded' as to its
validity and reliability.*

*Examples of categories characterizing the source of the information
could include: 1) from an anonymous tip, 2) from an informant, with an
indication of how reliable the informant is, 3) from law enforcement
interviews of individuals, 4) from a public records source, or 5) from a
non-governmental information provider, etc.*

*For examples of categories of source reliability see IIR, Statewide
Intelligence System, Sample Operating Policies and Procedures section on
"Source Reliability" (p.4).*

*For examples of content validity see IIR, Statewide Intelligence
System, Sample Operating Policies and Procedures section on "Content
Validity" (p.4).*

*Subsection b) requires updating of the categorization of information
when new information changes or clarifies the validity of previously
retained information. This is a significant requirement that may be
difficult to maintain when the amount of information in the system is
extensive, which is probably the case in a typical records management
system, particularly after it has been in use for a while. Updating of
the validity or reliability 'code' may only occur as users analyze
information in light of new information, but not every time some
information is added to the system. This is more important in a criminal
intelligence system where there is a different standard regarding when
information can be kept.*

***Sources and References:***

*28 CFR Part 23, sections 23.3(b)(6) \[definition of "validation of
information"\] and 23.20 (g).*

*IALEIA, [Law Enforcement Analytic Standards]{.smallcaps}, Standard \#
13, Evaluation Standard.*

*OECD Purpose Specification Principle no. 9.*

### B.4.50 CLASSIFICATION OF INFORMATION REGARDING LIMITATIONS ON ACCESS AND DISCLOSURE

**a) At the time a decision is made to keep information it will be
classified based on applicable limitations on access and sensitivity of
disclosure in order to:**

> **1) protect confidential sources,**
>
> **2) not interfere with or compromise pending criminal
> investigations,**
>
> **3) protect an individual's right of privacy and civil rights, and**
>
> **4) provide legally required protection based on the status of an
> individual as a victim of crime or domestic violence, a witness, or
> \[*indicate other classes of individual's accorded protection
> regarding access to or disclosure of sensitive information*\].**

**b) The classification of existing information will be reevaluated
whenever**

> **1) new information is added that has an impact on the level of
> privacy and confidentiality of information; or**
>
> **2) there is a change in the use of the information affecting access
> or disclosure limitations.**

**c) The classification scheme will be used to control:**

> **1) what information a class of users can have access to;**
>
> **2) what information a class of users can add, change, or delete;
> and**
>
> **3) to whom the information can be disclosed, and under what
> circumstances.**

***Commentary***

*This section requires an overt classification of information as to the
ability of any particular class of persons to access the information or
of the agency to disclose the information. It requires the
classification to 'attach' to the information when a decision is made to
keep the information in the justice information system. The
classification could be a flag or field associated with the information,
or some form of XML tag.*

*There are a number of classification schemes in use. For example, see:*

-   *IACP, Criminal Intelligence Model Policy provides classification
    categories for criminal intelligence information (see section IV.
    H.1.); and*

-   *IIR, Statewide Intelligence System, Sample Operating Policies and
    Procedures, section on Dissemination Level (p.5).*

*Subsection b) indicates two circumstances by which the access category
may change. One is when other or newer information becomes known that
changes the nature of permitted access. An example would be where the
identity of an alleged criminal becomes known, or new information
suggests the imminence of criminal or terrorist activity. The second (b)
2)) is when the subsequent use of the information results in different
rules becoming applicable. An example of this is when information
otherwise non-public is introduced into a court case and, by virtue of
being in the court file, becomes a public record. The character of
information may change again, including returning to a more private
state, for example, when a conviction is expunged. The agency needs to
determine what other 'boundaries' exist where the transfer or exchange
of information changes its categorization.*

***Sources and References:***

*DOJ Order on Safeguarding Unclassified Sensitive Information, section
7.a.*

*IALEIA, [Law Enforcement Analytic Standards]{.smallcaps}, Standard \#
23, Data Source Attribution Standard.*

*OECD Purpose Specification Principle no. 9.*

*Safe Harbor Privacy Principles, Notice, Choice and Onward Transfer
principles.*

## B.5.00 INFORMATION QUALITY

**a) The agency will make every reasonable effort to ensure that
information sought and retained is:**

> **1) derived from dependable and trustworthy sources of information;**
>
> **2) accurate;**
>
> **3) current;**
>
> **4) complete, including the relevant context in which it was sought
> or received and other related information; and**
>
> **5) merged with other information about the same individual or
> organization only when the applicable standard \[*in section B.4.30*\]
> has been met.**

***\[OR\]***

**a) The agency will make every reasonable effort to ensure that it
complies with \[*cite the applicable state law or policy setting forth
information quality standards comparable to those specified above*\].**

**b) The agency will make every reasonable effort to ensure that only
authorized users are allowed to add, change, or delete information in
the system.**

**c) The agency will make every effort to ensure that information will
be deleted from the system when the agency learns that:**

> **1) the information is misleading, obsolete, or otherwise
> unreliable;**
>
> **2) the source of the information did not have authority to gather
> the information or to provide the information to the agency; or**
>
> **3) the source of the information used illegal means to gather the
> information \[*note any exceptions, see section B.4.20 b) 2)*\].**

**d) The agency will advise recipient agencies when information
previously provided to them is deleted or changed pursuant to subsection
c) when \[*specify the circumstances in which notice of change or
deletion will be made, for example, when the requesting agency has
specifically requested to be notified, or for particular types of
changes or deletions, for example, the information has been sealed or
deleted*\].**

***Commentary***

*The section lists the attributes of information quality required for
information to be sought or retained by the agency.*

*Subsection a) 4) speaks to the completeness of the information. For
information to be most useful to the law enforcement, criminal
intelligence, justice community, and private partners the full context
must be collected and retained. This includes the context in which the
information was obtained as well as seeking and retaining "the whole
story." Information that may be exculpatory should also be gathered and
retained. For example, for arrest information the system should include
the disposition of the arrest, when it occurs.*

*Subsection a) 5) refers to the merging of information from more than
one source. See section B.4.30 b) for language on the standard for
merging information.*

*Alternative subsection b) refers to "authorized users." The implication
is that the agency has established processes whereby users are not given
authorization to add, change, or delete information until they have been
trained and are considered qualified and competent to use the system.*

*Subsection d) requires the agency to inform other agencies about
changes or deletions to information under certain circumstances.
Requiring notice to every requestor whenever there is a change or
deletion would be an onerous requirement, particularly if there has been
significant sharing of information on a daily basis. The bracketed
language would indicate when notice would be provided, based on the
nature of the inquiry or significance of the information.*

*Subsection d) does not specify how the notice of change or deletion
would be made. Options would include requiring a requestor who wanted
notice to provide an e-mail address to which notice could be sent.*

***Sources and References:***

*20 CFR Part 20, sections 20.1, 20.21(a) on completeness, 20.21(a)(2) on
accuracy, 20.21(a)(2) on advising recipient agencies of errors, and
20.21(f)(3)(i)(a) on only authorized users changing data.*

*28 CFR Part 23, sections 23.20 (g) and (h).*

*Computer Matching and Privacy Act, §552a(e)(5) and (6).*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, section on Notification Prior to Purge (p.7).*

*IALEIA, [Law Enforcement Analytic Standards]{.smallcaps}, Standard \#
12, Legal Constraints Standard, Standard #13, Evaluation Standard, and
Standard #15, Analytic Accuracy Standard.*

*NCISP, Recommendations 11 and 12.*

*OECD Data Quality Principle no. 8*

*Safe Harbor Privacy Principles, Data Integrity principle.*

## B.6.00 COLLATION AND ANALYSIS OF INFORMATION

**a) Information sought or received by the agency or from other sources
will only be analyzed:**

1)  **by qualified individuals,**

2)  **to provide tactical and/or strategic intelligence on the
    existence, identities, and capabilities of individuals and
    organizations suspected of having engaged in or engaging in criminal
    or terrorist activities generally and,**

3)  **to further crime and terrorist prevention and enforcement
    objectives and priorities established by the agency.**

**b) Information sought or received by the agency or from other sources
will not be analyzed or combined in a manner or for a purpose that
violates section \[*B.4.10 b)*\].**

***Commentary***

*This section may be more relevant to criminal intelligence systems than
to records management systems or other types of justice information
systems.*

*Subsection a) 1) requires that the collation and analysis of
information be performed by "qualified individuals." This is in
recognition that there knowledgeable and skilled individuals are more
likely to conduct the analysis in a professional, efficient, affective
and legal manner.*

*Subsection a) 2) incorporates a use type restriction similar to the
collection restrictions in section B.4.10.*

*Subsection a) 3). Similar to the restriction on gathering and storing
information, this subsection requires that analysis of information only
be done in furtherance of and consistent with the purposes set forth in
B.1.00.*

*Subsection b) reiterates the prohibitions acknowledged in section
B.4.10 b) about not collecting or compiling information based on
improper criteria, such as religious or political views.*

***Sources and References:***

*IACP, Criminal Intelligence Model Policy, sections IV. A. and E.*

*IALEIA, [Law Enforcement Analytic Standards]{.smallcaps}, Standard \#
14, Collation Standard.*

*NCISP, Recommendation 12.*

## B.7.00 SHARING AND DISCLOSURE OF INFORMATION

The sections in this part address when and under what circumstances
information in the justice system may be disclosed. They are organized
by the category of person or entity who is seeking access to
information: law enforcement officer, specific use provisions, the
public, and the person about whom information is present in the system.
This is based on the assumption that access rules are often stated on
the basis of the status of the requesting individual or entity with
respect to the information and the system. Alternatively the concepts in
these sections could be organized according to the type of information
sought (for example, arrest information, conviction information, warrant
information, etc.), or organized according to the relationship to the
justice system of a person about whom information has been retained and
may be shared or disclosed (for example access to information about a
defendant, a victim or a witness, etc.).

For some types of justice information systems the access and disclosure
rules may be very limited. The information in criminal intelligence
systems generally is not publicly available, for example.

### B.7.10 SHARING INFORMATION WITHIN THE AGENCY AND WITH OTHER JUSTICE SYSTEM PARTNERS

**a) Access to information gathered and retained by this agency will
only be provided to persons within the agency or in other justice system
agencies who are authorized to have access and only for legitimate law
enforcement, public protection, public health, or justice purposes and
in the performance of official duties in accordance with the law and
procedures applicable to this agency.**

**b) An audit trail will be kept of access by or dissemination of
information to such persons.**

***Commentary***

*Subsection a) provides that the agency will only share the information
it gathers and retains with justice system personnel who are 1)
authorized to have access to the information, 2) will use it for law
enforcement or justice purposes, that is they have a 'right to know' and
a 'need to know' and 3) will be using it in the performance of their
official duties.*

*Subsection b) provides that a record is to be kept of access, both by
whom and to what information. While retaining such a record might have
the effect of discouraging access, it is an effective means of both
discouraging unnecessary or improper access and of tracing improper
access for enforcement purposes (see section B.9.30). For examples of
what might be included in an audit trail, see IIR, Statewide
Intelligence System, Sample Operating Policies and Procedures, section
on Dissemination Record (p. 6).*

*Alternative or Additional Provision*

*If the person who gathered information is allowed to have access to it
even if they would not be allowed if they did not gather it, the
following provision might be added:*

> *"The person who gathered and contributed information to the system
> may be authorized to view the information he or she provided
> regardless of the type of access associated with the information or
> the contributor's access authority."*

*(See IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, section on Access Rights, p.5.)*

***Sources and References:***

*28 CFR Part 20, sections 20.21(b)(1), (b)(3), (f)(2), and (f)(3)(i)(b),
and section 20.33(a).*

*28 CFR Part 23, sections 23.20(e), (f), and (g).*

*DOJ Order on Safeguarding Unclassified Sensitive Information,
definition of "need to know" in section 4.e.*

*IACP Criminal Intelligence Model Policy, section IV. C.4.*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, sections on Access Rights, Inquiry Procedures, and
Dissemination of Information Procedures (pp. 5-6).*

*NCISP, Recommendation 27.*

*OECD Use Limitation Principle no. 10.*

*OECD Security Safeguards Principle no. 11.*

*Safe Harbor Privacy Principles, Onward Transfer principle.*

### B.7.20 SHARING INFORMATION WITH FIRST RESPONDERS

**a) Information gathered and retained by this agency may be
disseminated to individuals in first responder entities other than law
enforcement agencies only for public safety or public health purposes
and in the performance of official duties in accordance with applicable
laws and procedures.**

**b) An audit trail will be kept of the access by or dissemination of
information to such persons.**

***Commentary***

*Subsection a) provides for access by first responders who have a 'need
to know' information that allows them to better protect public health or
safety.*

*Subsection b) provides that a record is kept of access. While retaining
such a record might have the effect of discouraging access, it is an
effective means of both discouraging unnecessary or improper access and
of tracing improper access for enforcement purposes.*

***Sources and References:***

*28 CFR Part 20, sections 20.21(b)(2) and 20.33(a).*

*28 CFR Part 23, section 23.20 (f)(2) and (g).*

*OECD Use Limitation Principle no. 10.*

*OECD Security Safeguards Principle no. 11.*

*Safe Harbor Privacy Principles, Inward Transfer principle.*

### B.7.30 SHARING INFORMATION FOR SPECIFIC PURPOSES

**a) Information gathered and retained by this agency can be
disseminated for other than justice purposes upon request by authorized
persons entitled by law to such access and only for those uses or
purposes specified in the law.**

***\[Add for a criminal intelligence system:\]* Nothing in this policy
shall limit the delivery, including unsolicited, of an assessment of
criminal intelligence information to a government official or to any
other individual, when necessary to avoid imminent danger to life or
property.**

**b) \[*The agency shall not confirm the existence or nonexistence of
information to any person or agency that would not be eligible to
receive the information itself.*\]**

**c) An audit trail will be kept of the request for access and what
information is disseminated to such persons.**

***Commentary***

*Certain individuals or organizations, including "private partners," may
be entitled by law to access information in justice systems that is not
available to the general public. For example, governmental officials,
public agencies, licensing boards, and certain non-governmental agencies
may be entitled to information about the criminal history of an
individual applying for services, employment, or benefits. Examples of
organizations that may be entitled to access, at least for limited
purposes and only certain information, include:*

-   *Government officials not in law enforcement or the justice system
    who are responsible for making public safety decisions on behalf of
    the public regarding facilities or services;*

-   *Government officials not in law enforcement or the justice system
    who are responsible for making public health decisions;*

-   *Government officials not in law enforcement or the justice system
    who are responsible for making entitlement or allocation decisions
    for individuals to receive government services or benefits, for
    example, public housing, health care, or welfare;*

-   *Critical infrastructure protection or security entities (public or
    private);*

-   *Professional licensing boards;*

-   *Employers (public or private) hiring individuals for specific
    duties, such as bus drivers, airport workers, child care workers,
    etc.;*

-   *Domestic violence shelters;*

-   *Businesses or organizations particularly susceptible to cyber crime
    and identity theft; and*

-   *Individuals or organizations conducting research, evaluation or
    statistical studies who are reporting about the activities of an
    agency or the clients served by the agency, with appropriate
    institutional review board oversight.*

*The provision requires both that the individual be authorized to have
access and that the use must be for the purpose specified in the law
permitting access.*

*The optional subsection b) addresses the question of confirming or
denying the existence of information which itself is not subject to
public access. The subsection provides that the existence of information
will not be confirmed or denied to someone who is not entitled to the
information whose existence is being questioned. This prohibition 1)
protects any confidentiality or privacy interests in the information, 2)
protects the integrity of the investigatory processes, and 3)
contributes to public confidence in the system.*

*Subsection c) provides that a record is kept of access. While retaining
such a record might have the effect of discouraging access, it is an
effective means of both discouraging unnecessary or improper access and
of tracing improper access for enforcement purposes.*

***Sources and References:***

*28 CFR Part 20, sections 20.21(b)(2) and (c)(1) on specific users and
information they are entitled to access, and 20.21(b)(4) on research,
evaluation and statistical uses.*

*28 CFR Part 20, section 20.21(c)(2) on non-disclosure of existence of
information.*

*28 CFR Part 20, section 20.33(a) on information made available for
specific uses.*

*28 CFR Part 23, section 23.20 (f)(2) and (g).*

*CCJ/COSCA Guidelines, section 4.10.*

*National Crime Prevention and Privacy Compact, 42 USC §14616, Article
IV (a).*

*OECD Use Limitation Principle no. 10.*

*OECD Security Safeguards Principle no. 11.*

*[Access to criminal history or arrest information for applicants for
care giver positions]{.underline}*

*Colo. Rev. Stats., sec. 24-72-305.3 (2)(B) -- clear language about what
types of criminal information is available*

*[Access to criminal history or arrest information for applicants for
regulated professions]{.underline}*

*Colo. Rev. Stats., sec. 24-72-305.4; use of fingerprints for matching
in subsection (1)*

*Safe Harbor Privacy Principles, Inward Transfer principle.*

### B.7.40 DISCLOSING INFORMATION TO THE PUBLIC

**a) Information gathered and retained by this agency \[*may/will*\] be
disclosed to a member of the public only if the information is defined
by law to be a public record and is not excepted from disclosure by a
specific law, and it may be disclosed only in accordance with the law
and procedures applicable to this agency for this type of information.**

**b) The agency shall not confirm the existence or nonexistence of
information to any person or agency that would not be eligible to
receive the information itself.**

**c) An audit trail will be kept of the request and what information is
disclosed to a member of the public.**

**\[d) *Add provisions regarding the fees, if any, that will be charged
to those requesting information.\]***

**\[e) *Add provisions regarding bulk or compiled distribution of
information to third parties if the agency will allow such access. Also
address charging a fee for information 'sold' to third parties.*\]**

***Commentary***

*Subsection a) indicates when information may be disclosed to the
public. It permits disclosure to the public of information that is
specifically designated as a public record. Examples of this would
include such things as court records and conviction information. The
subsection also permits disclosure of information to the public when
such access is specifically allowed by law for information that would
otherwise not be public. Examples would include such things as "police
blotters," sex offender registries, and information about fugitives who
are subject to arrested.*

*The subsection also provides that the information can only be disclosed
in the manner permitted by the law authorizing public access. For
example, the information cannot be disclosed selectively to some members
of the public, but not others. Another example would be restrictions in
some jurisdiction that arrest information can only be requested
chronologically, not by name, to avoid the ability to "build" arrest
histories retroactively one at a time.*

*See section B.3.40 above for definition of "public."*

*Subsection b) addresses the question of confirming or denying the
existence of information which itself is not subject to public access.
The subsection provides that the existence of information will not be
confirmed or denied if the information whose existence is being
questioned is not public information. This prohibition 1) protects any
confidentiality or privacy interests in the information, 2) protects the
integrity of the investigatory processes, and 3) contributes to public
confidence in the system.*

*Subsection c) provides that a record be kept of disclosure. The record
is to indicate both to whom disclosure was made and what was disclosed.
While retaining such a record might have the effect of discouraging
access, it is an effective means of both discouraging unnecessary or
improper access and of tracing improper access for enforcement purposes.
The subsection assumes it is legal to keep records of public access
requests. In some instances this may not be permitted under state or
local laws.*

*Subsection e) is included as a place holder for the agency to use if it
will charge a fee for providing information form the system.*

*Subsection e) is included as a place holder for the agency to use if it
decides that bulk or compiled disclosure of information from the system
is permitted and appropriate. In many states access to individual
records may be allowed, but bulk access is not. In addition, there may
be a distinction between information about individuals where the
individual is identifiable, and information that is more aggregate in
nature, and one cannot identify a specific individual from the
information provided. The subsection could also contain language about
whether information can be 'sold' to third parties, and what the fee
is.*

*For examples of what bulk and compiled sections might include, see
CCJ/COSCA Guidelines, sections 4.30 and 4.40.*

***Sources and References:***

*28 CFR Part 20, section 20.20(b) on exceptions and 20.20(c) on
disclosing criminal history information about an individual.*

*28 CFR Part 23, section 23.20 (g).*

*CCJ/COSCA Guidelines, section 4.30 and 4.40 on bulk and compiled access
and section 6.00 on fees.*

*Federal Freedom of Information Act, 5 USC section 552 (b) on exceptions
to disclosure.*

*Federal Freedom of Information Act, 5 USC section 552 (a)(2) on
redaction and disclosing existence of information not made available.*

*Federal Freedom of Information Act, 5 USC section 552 (a)(4) on
charging fees.*

*New Jersey Statutes, section 47:1A-3.b.*

*OECD Use Limitation Principle no. 10.*

*OECD Security Safeguards Principle no. 11.*

*Safe Harbor Privacy Principles, Onward Transfer and Security
principles.*

*Washington Governor's Executive Order 00-03, item #3*

*WI Statutes, section 19.71 -- sale of names and addresses.*

### B.7.50 DISCLOSING INFORMATION TO THE INDIVIDUAL ABOUT WHOM INFORMATION HAS BEEN GATHERED

**a) Upon satisfactory verification of his or her identity, and subject
to the conditions specified in b) below, an individual is entitled to
know the existence of, and to review the information about him or her
that has been gathered and retained by the agency. The individual may
obtain a copy of the information for the purpose of challenging the
accuracy or completeness of the information. The agency's response to
the request will be made within a reasonable time, and in a form that is
readily intelligible to the individual. The agency may charge a fee for
disclosure that reflects the cost to the agency of locating and
reproducing the information \[*specify any exceptions to charging a
fee*\].**

**b) The existence and content of the information will not be made
available to an individual when:**

> **1) disclosure would interfere with, compromise, or delay an on-going
> investigation;**
>
> **2) disclosure would endanger the health or safety of another
> individual, organization, or community;**
>
> **3) the information is in a criminal intelligence system;**
>
> **4) the information relates to \[*specify what types of information
> are not to be disclosed to an individual under the law applicable to
> the agency*\].**

**c) The agency will inform the individual of the procedure for
requesting review of objections to the accuracy or completeness of the
information retained about the individual. The individual will be given
reasons if a request for correction is denied. The individual will also
be informed of the procedure for appeal where the agency refuses to
correct challenged information to the satisfaction of the individual
about whom the information relates.**

**d) A record will be kept of the request and what information is
disclosed to an individual.**

***Commentary***

*Subsection a) states that an individual is entitled to know of, and
review information about him or her that is retained by the agency. The
individual must verify his or her identity before obtaining access. The
only information to be disclosed is that about the individual requesting
disclosure.*

*Subsection b) lists exceptions to disclosure of information about an
individual. If disclosure would inhibit an active investigation, it need
not be disclosed. If disclosure would endanger someone (for example a
victim, witness, informant, or law enforcement personnel) or some
organization, it need not be disclosed. If the information is part of a
criminal intelligence system, it need not be disclosed. Finally, there
may be state or local laws limiting disclosure of information to an
individual, which laws should be specified or referred to in this
section.*

*Subsection c) relates to the process by which an individual can seek
review of information the individual alleges to be incorrect or
incomplete.*

*Subsection d) provides that a record is kept of the disclosure request.
While retaining such a record might have the effect of discouraging
access, it is an effective means of both discouraging unnecessary or
improper access and of tracing improper access for enforcement purposes
(see section B.9.30 below).*

*The relevant OECD principle is the Individual Participation Principle
no. 13 which states:*

*An individual should have the right:*

> *a) to obtain from a data controller, or otherwise, confirmation of
> whether or not the data controller has data relating to him;*
>
> *b) to have communicated to him, data relating to him*

-   *within a reasonable time;*

-   *at a charge, if any, that is not excessive;*

-   *in a reasonable manner; and*

-   *in a form that is readily intelligible to him;*

> *c) to be given reasons if a request made under subparagraphs(a) and
> (b) is denied, and to be able to challenge such denial; and*
>
> *d) to challenge data relating to him and, if the challenge is
> successful to have the data erased, rectified, completed or amended.*

***Sources and References:***

*28 CFR Part 20, sections 20.21(g) and 20.34.*

*28 CFR Part 23, section 23.20 (g).*

*Computer Matching and Privacy Act, §552a subsections (e)(3) and (f).*

*New Jersey Statutes, section 47:1A-3.a.*

*OECD Individual Participation Principle no. 13.*

*Safe Harbor Privacy Principles, Notice, Choice and Access principles.*

*[Subsection c) -- review and correction]{.underline}*

*Computer Matching and Privacy Act, §552a(p).*

## B.8.00 INFORMATION RETENTION AND DESTRUCTION

The following sections on records retention are included because of
their implications regarding protection of privacy, civil rights and
civil liberties. If information is destroyed or purged according to
applicable retention schedules, it is no longer at risk of being
improperly accessed, shared, or disclosed. Information that is no longer
kept in a justice information system cannot impinge on anyone's privacy
rights or interests, civil rights or civil liberties. If the agency
already has a robust records retention policy, the language of B.8.20
can be replaced with a reference to the applicable records retention
policy.

### B.8.10 REVIEW OF INFORMATION REGARDING RETENTION

**Information will be reviewed for purging on a \[*specify periodic
basis, such as annual, or reference the applicable statute(s),
regulation(s), or policy*\]. When information has no further value or
meets the criteria for destruction under applicable law, it will be
destroyed.**

***Commentary***

*This section explicitly requires periodic review of information to
determine whether it should be purged from the justice information
system. The intent is not only to assure compliance with any applicable
records retention policy, but also encourage a review that may remove
information that no longer has value before it would be required to be
purged by applicable records retention policies. This is an example of a
proactive approach to managing justice system information.*

***Sources and References:***

*28 CFR Part 23, section 23.20 (h).*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, section on Review and Purge Procedures (p. 6).*

*RISS Privacy Policy.*

*Washington Governor's Executive Order 00-03, item #4*

### B.8.20 DESTRUCTION OF INFORMATION

**a) The agency will delete information or return it to the source
according to the following schedule:**

> **\[*reference the statute(s), regulation(s), or policies specifying
> the applicable record destruction standard or schedule*\]**
>
> **OR**
>
> **\[*if there is no applicable statute or policy, specify the
> destruction standard or schedule applicable to the system's
> records*\].**

**b) Permission to destroy or return information or records will be
obtained**

> **\[*reference the statute(s), regulation(s), or policies specifying
> whose permission must be obtained before destroying information or
> records*\]**
>
> **OR**
>
> **\[*if there is no applicable statute or policy, specify whose
> permission, if any, must be obtained before destroying information or
> records*\].**

**c) Notification of proposed destruction or return of records will be
provided to**

> **\[*reference the statute(s), regulation(s), or policies specifying
> to whom notice must be provided about the proposed destruction of
> information or records*\]**
>
> **OR**
>
> **\[*if there is no applicable statute or policy, specify who, if
> anybody, must be notified about the proposed destruction of
> information or records*\].**

**d) A record of what information has been purged or returned shall be
maintained by the agency.**

***Commentary***

*If information has been provided to third parties, in particular
members of the public, notifying them of the destruction of information
can be problematic. If information has been provided in bulk or compiled
form, it may be easier, but not immediate, to eliminate copies of the
information. For example, the agreement allowing bulk requests can
require the requestors to regularly update their information to purge
information that the agency has destroyed. The most effective way to
limit use of purged information is to provide some penalty, fiscal or
penal, if someone uses such information without checking to make sure it
is still current.*

***Sources and References:***

*Federal Records Act, 44 USC Chapter 33, sections 3303 (3) and 3303a
(d).*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, sections on Review and Purge Procedures, Procedures for
Purge of Information, Purge Without Notification to Submitting Agency,
Notification Prior to Purge, and Destruction of Information (pp. 6-7).*

*RISS Privacy Policy.*

## B.9.00 ACCOUNTABILITY AND ENFORCEMENT

### B.9.10 INFORMATION SYSTEM TRANSPARENCY

**a) The policy establishing protections of privacy, civil rights, and
civil liberties will be made available to the public on request and
through any public web sites providing information about the system.**

**b) The agency will designate a person responsible for receiving and
responding to inquiries and complaints about privacy and civil rights
protections in the information system and will provide to the public the
\[*name OR position title*\] and contact information of the individual
so designated.**

***Commentary***

*Subsection a) implies that the existence of the information system will
be known to the public by requiring the privacy policy to be public.
Acknowledging the existence of the system demonstrates the willingness
of the agency to be subject to appropriate public scrutiny and
contributes to public confidence in the agency and its operations.*

*Subsection b) requires the agency to designate who the public can
contact regarding inquiries about the information system or with whom
complains can be lodged.*

***Sources and References:***

*[Generally]{.underline}:*

*NCISP Recommended Outreach Plan*

*OECD Openness Principle no. 12.*

*[Subsection a) -- Existence of system]{.underline}*

*Computer Matching and Privacy Act, §552a,) subsections (e) (4), (11)
and (12) and subsection (r).*

*[Subsection b) - Designating Responsible Person]{.underline}:*

*IACP Criminal Intelligence Model Policy, section IV.B.2 - concept of
"officer-in-charge" (OIC).*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, Coordination and Control, p. 1.*

*OECD Accountability Principle no. 14.*

### B.9.20 ACCOUNTABILITY FOR ACTIVITIES

**a) Primary responsibility for the operation of this justice
information system, including operations, coordination of personnel, the
gathering, retention, evaluation, information quality, analysis,
retention, destruction, sharing, and disclosure of information, and the
enforcement of this policy is assigned to \[*specify position
responsible for the system*\].**

**b) The agency will establish procedures, practices, and system
protocols, and use software and technologies that protect information
from unauthorized access, theft, sabotage, fire, flood, or other natural
or manmade disaster or intrusion.**

**c) The agency will store information in a manner such that it cannot
be added to, modified, accessed, destroyed, or purged except by
personnel authorized to take such actions.**

**d) The agency will adopt and follow procedures and practices by which
it can insure and evaluate compliance of users and the system with the
provisions of this policy and applicable law, including: adopting
information system security practices, logging of access requests and
responses, detection of unauthorized attempts to add, change, delete, or
access information, audits, and enforcement mechanisms.**

**e) The agency will require individuals authorized to use the system to
agree in writing to comply with the provisions of this policy.**

**f) The agency will periodically conduct audits and inspections of
information in the system. The audits will be conducted randomly by a
designated representative of the agency or designated independent party.
The audit will be conducted in such a manner so as to protect the
confidentiality, sensitivity and privacy of the agency's information.**

**g) The agency will periodically review and update the provisions
protecting privacy, civil rights, and civil liberties in its policies
and make appropriate changes in response to changes in applicable law,
and public expectations.**

***Commentary***

*This provision establishes the basic framework for holding the agency
accountable for enforcing its privacy and civil rights policy.*

*Subsection a) requires the designation of an individual who is
ultimately responsible.*

*Subsection b) requires the agency to store information in such a way
that its integrity can be preserved and relied upon and to act to
prevent unauthorized access, modification, or destruction of
information.*

*Subsection d) requires establishing procedures and practices that
implement the intent of the privacy and civil rights policy, and allow
compliance to be effectively monitored.*

*Subsection e) requires the agency to require users to sign a written
agreement to comply with the policies provisions, which document can
form a basis for enforcement actions.*

*Subsection f) requires periodic and random audits of the information
held by the agency.*

*Subsection g) requires periodic review of the privacy and civil rights
policy to insure that it continues to be in compliance with applicable
law, is retaining up with changes in technology, and takes advantage of
new technology that may assist in monitoring compliance and detecting
violations of the privacy and civil rights policy. One way to ensure
this is to consider the inclusion of a specific sunset date, thus
forcing re-evaluation of the effectiveness and scope of the policy.*

***Sources and References:***

*28 CFR Part 20, sections 20.21(e) on audits, (f) on security
provisions, (f)(3)(i)(a) on who can change information, and (f)(3)(i)(d)
on detecting attempted unauthorized use, and (f)(3)(i)(g) on protecting
the system.*

*28 CFR Part 23, sections 23.20 (g), (i), and (n), and 23.30(c) and
(d)(1).*

*Computer Matching and Privacy Act, §552a(e)(9).*

*IACP, Criminal Intelligence Model Policy, section IV.B.*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, section on Inspection and Audit of Files, p. 8.*

*National Crime Prevention and Privacy Compact, 42 USC §14616, Article
III (a)(1) and (b)(1).*

*NCISP, Recommendation 15.*

*RISS Privacy Policy.*

*Safe Harbor Privacy Principles, Enforcement principle.*

*[Subsection a) -- person/position responsible]{.underline}*

*DOJ Order on Safeguarding Unclassified Sensitive Information, sections
5.c. and 6.h.*

*[Subsection d) -- compliance and subsection f) -- audit]{.underline}*

*Computer Matching and Privacy Act, §552a(u)(3)(B).*

*Washington Governor's Executive Order 00-03, item #5.*

*Wisconsin statutes, section 19.65(2)* **- r***ules of conduct for
employees.*

*[Subsection g) -- updating of policy]{.underline}*

*DOJ Order on Safeguarding Unclassified Sensitive Information, section
8.*

### B.9.30 ENFORCEMENT

**If a user is suspected or found not to be complying with the
provisions of this policy regarding the collection, use, retention,
destruction, sharing, or disclosure of information, the agency will:**

> **a) suspend or discontinue access to information by the user,**
>
> **b) suspend, demote, transfer or terminate the person as permitted by
> applicable personnel policies,**
>
> **c) apply other sanctions or administrative actions as provided in
> agency personnel policies, or**
>
> **d) refer the matter to appropriate authorities for criminal
> prosecution**

**as necessary to effectuate the purposes of the policy as stated in
\[*section B.1.00*\].**

***Commentary***

*The policy will not adequately or effectively protect privacy, civil
rights, or civil liberties if its provisions are violated with impunity.
This section specifies the range of penalties for violations of the
policy. Disciplinary action, appropriate to the severity of the offense,
should be taken against a user who:*

> *1) fails to comply with the provisions about what information may be
> sought or retained, what may not be sought or retained, or uses
> improper means or sources to seek or receive information;*
>
> *2) uses information for unauthorized purposes, including personnel
> use or commercial use, whether or not the person receives a benefit;*
>
> *3) discloses information to someone not authorized to receive the
> information;*
>
> *4) fails to correct information found to be erroneous or report the
> error to appropriate personnel;*
>
> *5) fails to purge information when it is no longer of value or has
> reached its retention schedule,*
>
> *6) retains or otherwise fails to destroy information that is
> scheduled to be destroyed, or is no longer relevant to the purposes of
> the system, or*
>
> *7) fails to disclose information that an individual or the public is
> entitled to know the existence of and review.*

*Training of agency employees, contractors and users regarding the
policy and consequences for violating it are addressed in section
B.10.00*

***Sources and References:***

*28 CFR Part 20, section 20.21(f)(4)(ii).*

*28 CFR Part 23, sections 23.20(g)(5) and (m).*

*Computer Matching and Privacy Act, §552a(q).*

*DOJ Order on Safeguarding Unclassified Sensitive Information, section
5.b.*

*Federal Freedom of Information Act, 5 USC section 552 (a)(4) (F).*

*Safe Harbor Privacy Principles, Enforcement principle.*

*Washington Governor's Executive Order 00-03, item #5.*

*Wisconsin Statutes, section 19.80.*

## B.10.00 TRAINING

**a) The agency will require:**

> **1) its personnel,**
>
> **2) personnel providing IT services to the agency,**
>
> **3) staff in other public agencies or private contractors providing
> services to the agency, and**
>
> **4) users who are not employed by the agency or a contractor**

**to participate in training programs regarding the privacy, civil
rights, and civil liberties policy.**

**b) The training program will cover:**

> **1) Purposes of the privacy, civil rights, and civil liberties
> protection policy;**
>
> **2) Substance and intent of the provisions of the policy relating to
> collecting, use, analysis, retention, destruction, sharing and
> disclosure of information retained by the agency;**
>
> **3) The impact of improper activities associated with information
> accessible within or through the agency; and**
>
> **4) The nature and possible penalties for policy violations,
> including possible transfer, dismissal, civil and criminal liability,
> and immunity, if any.**

***Commentary***

*Subsection a) requires training not just of agency personnel, but
others who may have access to information retained by the agency or
accessible through the agency. The agency can require contractors to
provide the necessary training as part of the contract with the agency.
Users can be required to obtain the necessary training before being
given authorization to access information retained by the agency.*

*Subsection b) describes the subjects the training should encompass. It
includes the basic aspects of the policy regarding privacy and civil
rights, why the policy is necessary, and the consequences for failing to
comply with the policies. Consideration should also be given to
establishing certification for the training to encourage participation.*

*Subsection b) 2) identifies the broad categories that should be covered
in the training. More specific possible topics for training might
include, for example, limitations regarding the use of the information
in the systems as far as the reliability of information and matching
problems.*

***Sources and References:***

*28 CFR Part 20, section 20.21(f)(5).*

*CCJ/COSCA Guidelines, section 8.30.*

*Computer Matching and Privacy Act, §552a(e)(9).*

*DOJ Order on Safeguarding Unclassified Sensitive Information, section
5.b.*

*IACP Model Statutes Project, section on Racial Profiling.*

*IALEIA, [Law Enforcement Analytic Standards.]{.smallcaps}*

*NCISP, Recommendations 13, 18, and 19.*

*Washington Governor's Executive Order 00-03, item #5*

*Wisconsin statutes, section 19.65.*

# C. ELEMENTS FOR INFORMATION SHARING SYSTEM MULTI-AGENCY AGREEMENTS

This part contains suggestions for provisions that would be included in
an inter-agency agreement between two or more governmental agencies
establishing a justice information sharing system or network. The
objective of the proposed elements for such an agreement is to define
the roles, responsibilities, and contributions of the agencies
participating in the information sharing network relative to protection
of privacy, civil rights and civil liberties. The intent is that these
provisions would be included in the inter-agency agreement that is
signed by participating agencies which creates the information sharing
system or network and defines its policies and operation.

## C.1.00 STATEMENT OF PURPOSE

**The goal of establishing and maintaining this justice information
sharing system is to further the following purposes:**

a)  **Increase public safety and improve national security;**

b)  **Minimize the threat and risk of injury to specific individuals;**

c)  **Minimize the threat and risk of injury to law enforcement and
    other first responder personnel;**

d)  **Minimize the threat and risk of damage to real or personal
    property;**

e)  **Protect individual civil rights, civil liberties, and privacy
    rights and other protected interests;**

f)  **Protect the integrity of the criminal investigatory, criminal
    intelligence, and justice system processes and information;**

g)  **Minimize reluctance of individuals or groups to use or cooperate
    with the justice system;**

h)  **Support the role of the justice system in society;**

i)  **Promote governmental legitimacy and accountability;**

j)  **Not unduly burden the ongoing business of the justice system;
    and**

k)  **Make the most effective use of public resources allocated to
    justice agencies.**

***Commentary***

*See commentary under section A.1.00 in Part A above.*

*One justification for sharing information across agencies is that
criminal activity and threats to public safety and health often occur
across jurisdictional boundaries, thus sharing of information across
jurisdictional boundaries is necessary to meet these threats.*

***Sources and References:***

*See Sources and References under section A.1.00 in Part A above.*

## C.2.00 COMPLIANCE WITH LAWS REGARDING PRIVACY, CIVIL RIGHTS, AND CIVIL LIBERTIES

**The employees and users of the participating agencies and of the
agency's information service providers will comply with all laws
protecting privacy, civil rights, and civil liberties in the collection,
use, analysis, retention, destruction, sharing, and disclosure of
personal information through the justice information sharing system.**

***Commentary***

*See commentary under section A.2.00 in Part A above.*

***Sources and References:***

*See Sources and References under section A.1.00 in Part A above.*

28 CFR Part 23, sections 23.1 and 23.2.

*National Crime Prevention and Privacy Compact, 42 USC §14616, Article
III (c).*

*RISS Privacy Policy.*

## C.3.00 SHARING OF INFORMATION AMONG PARTICIPANTS

### C.3.10 UNDERSTANDINGS REGARDING INFORMATION GATHERED AND SHARED

**Participating agencies to this memorandum will adopt internal policies
and procedures requiring the participating agency, its personnel, its
contractors, and its users to:**

> **a) Only seek or retain information that is legally permissible for
> the agency to seek or retain under laws applicable to the agency;**
>
> **b) Only use lawful means to seek information;**
>
> **c) Only seek and retain information that is reliably accurate,
> current, and complete, including the complete relevant context;**
>
> **d) Take appropriate steps, when merging information about an
> individual from two or more sources, to insure that the information is
> about the same individual;**
>
> **e) To investigate in a timely manner alleged errors and correct or
> delete information found to be erroneous;**
>
> **f) Retain information it seek or receives only so long as it is
> relevant and timely and delete or return information that is
> inaccurate, outdated, or otherwise no longer relates to known or
> suspected criminal or terrorist activities;**
>
> **g) Maintain information and systems containing information in a
> secure environment and protected from natural or man-made disasters or
> intrusions;**
>
> **h) Engage in collation and analysis of information in a manner that
> conforms to generally accepted practices in the criminal justice
> field;**
>
> **i) Establish procedures that comply with the policies and procedures
> of the information sharing system for accessing information through
> the participating agency;**
>
> **j) Only allow authorized users to access the information in the
> shared system;**
>
> **k) Share information with authorized users in other justice system
> partners only based on a right to know and a need to know; and**
>
> **l) Have and adhere to information retention and destruction
> schedules.**

***Commentary***

*The objective of this provision is to require participating agencies to
adopt policies addressing these issues. If an agency adopts a policy
including the provisions in Part B above, they will be in compliance
with this requirement when joining an information sharing system.*

*Subsection g) recognizes the relevance of security of the information
and systems to the protection of privacy and civil rights (for a summary
of security provisions see IIR, Statewide Intelligence System, Sample
Operating Policies and Procedures, section on Security of SIS Files,
p.8)*

*Understandings regarding the disclosure of information are provided for
in section C.4.10 below.*

*Compliance with and enforcement of the provisions adopted is addressed
in the provisions in section C.5.00.*

***Sources and References:***

*28 CFR Part 20, sections 20.21(a), 20.21(f)(3)(i)(f) and (f)(3)(i)(g),
and 20.37.*

*28 CFR Part 23, section 23.20(e) and (h) and 23.30(d)(2).*

*IIR, Statewide Intelligence System, Sample Participation Agreement.*

*National Crime Prevention and Privacy Compact, 42 USC section 14616,
especially Article III (c).*

### C.3.20 SHARING INFORMATION WITH OTHER JUSTICE SYSTEM PARTNERS

**A participating agency will make information available in response to
a query either:**

> **a) by providing the requested information directly;**
>
> **b) by responding with the name and phone number or e-mail of a
> person in the participating agency the individual making the query can
> contact; or**
>
> **c) by having a person in the participating agency contact the
> individual making the query.**
>
> **d) by indicating it has no information.**

**The choice of approach as to any particular piece of information shall
be at the discretion of the participating agency.**

***Commentary***

*This provision gives a participating agency options as to how to
provide information in response to a query from another participating
agency, thus providing an additional layer of protection for information
and investigations. Most information from the participating agencies
would be made available directly, either through a query to the
participating agencies database, or by a query to a data warehouse, or
similar approach, to which participating agencies have transferred the
information from their databases. If the participating agency wants a
higher level of protection of the data, it can provide the person making
the query with a name to call in the participating agency. The person to
be called can then verify the need to know and purpose of the inquiry
before providing the information. This also makes the responding person
aware that others are interested in the suspect or information. Finally,
if the information is so sensitive as to not be given out generally, for
example it is part of an active investigation of a more sensitive
nature, the system could tell someone in the participating agency that
someone has made an inquiry about the information and the decision can
be made whether to call the person inquiring, and what to tell them, if
anything.*

***Sources and References:***

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, section on Dissemination Level, p.5.*

## C.4.00 USE AND DISCLOSURE OF INFORMATION ORIGINATING FROM ANOTHER PARTICIPATING AGENCY

### C.4.10 DISCLOSURE OF INFORMATION ACCORDING TO ORIGINATING AGENCIES ACCESS RULES

**A participating agency will not disclose information originating from
another agency unless authorized or required by law in the jurisdiction
in which the information originated or as provided for in this agreement
or in the operational policies of the shared information system.**

***Commentary***

*The section provides that the applicable policy for disclosure is the
policy of the agency that is the source of the information in the shared
system, or the disclosure policy of the information sharing system,
whichever the participating agencies agree to. Alternatively, the
language could say that the applicable policy is the most restrictive of
the rules of the participating agencies (see IIR, Statewide Intelligence
System, Sample Operating Policies and Procedures, section on
Dissemination Level, p.5).*

*If the provision requires participating agencies to follow the policy
of the originating agency, two purposes are served. One is it will
encourage participating agencies to share information. If an agency is
concerned that information will be disclosed in violation of their
access policies, they may be unwilling to share the information.
Secondly, it implements access and disclosure rules of the originating
agency, which are consistent with the circumstances and public
expectation surrounding the collection of the information.*

*Implementation of this rule is not as complicated as it may first
appear. A user in another agency need not learn the access rules of the
originating agency if an access category is associated with the
information when it is included in the justice information sharing
system as required in section B.4.50.*

***Sources and References:***

*Washington Governor's Executive Order 00-03, item #5*

### C.4.20 REPORTING POSSIBLE INFORMATION ERRORS TO THE ORIGINATING AGENCY

**When a participating agency seeks or receives information that
suggests that information originating from another agency may be
erroneous, may include incorrectly merged information, or lacks a
complete context the alleged error will be communicated in writing to
the person designated in the originating agency to receive such alleged
errors pursuant to section C.5.10(e).**

***Commentary***

*The intent of this provision is both to improve the quality of the
shared information, and to make explicit the obligation of the person
uncovering the possible error to report the alleged error back to the
originating agency. Section C.3.10(e) obligates the originating agency
to investigate alleged errors reported to them and correct any errors
found.*

*The obligation to communicate in writing is to increase the likelihood
that something will be done by the receiving agency. Writing should
include e-mail as well as any other form or writing, but a verbal
communications should not be considered sufficient.*

*In order to implement this provision each participating agency should
identify a contact person to whom alleged errors are to be reported.
This is required in section C.5.10(e) below.*

***Sources and References:***

*28 CFR Part 23, section 23.20 (h).*

## C.5.00 PARTICIPATING AGENCY ACCOUNTABILITY AND ENFORCEMENT

### C.5.10 UNDERSTANDINGS REGARDING ACCOUNTABILITY AND ENFORCEMENT

**Participating agencies to this memorandum will adopt and comply with
internal policies and procedures requiring the agency, its personnel,
its contractors, and its users to:**

> **a) Have and enforce policies for discovering and responding to
> violations of agency policies and this memorandum, including taking
> appropriate action when violations are found;**
>
> **b) Provide training to personnel authorized to use the information
> sharing network about the agency's requirements and policies regarding
> information collection, use, and disclosure and this memorandum;**
>
> **c) Make the agency's internal policies and procedures regarding
> privacy, civil rights and civil liberties available to the public;**
>
> **d) Cooperate with periodic, random audits by representatives of the
> information sharing system; and**
>
> **e) Designate an individual within the participating agency to
> receive reports about alleged errors in information originating from
> the participating agency.**

***Commentary***

*Subsection (e) requires each participating agency to identify a contact
person to whom alleged errors are to be reported.*

***Sources and References:***

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, section on Inspection and Audit of Files, p. 8.*

*IIR, Statewide Intelligence System, Sample Operating Policies and
Procedures, Participation, p. 2 - on designated contact person for
receiving reports of alleged errors.*

*National Crime Prevention and Privacy Compact, 42 USC §14616, Article
II (5), Article III (c), and Article IV (c).*

### C.5.20 ENFORCEMENT OF PROVISIONS OF INFORMATION SHARING AGREEMENT

**If a participating agency fails to comply with the provisions of this
agreement, or fails to enforce provisions in its local policies and
procedures regarding proper collection, use, retention, destruction,
sharing, or disclosure of information, the information sharing network
may:**

> **a) suspend or discontinue access to shared information by a user in
> the offending agency who is not complying with the agreement or local
> policies and procedures;**
>
> **b) suspend or discontinue the offending agency's access to the
> information sharing system; or**
>
> **c) offer to provide an independent review, evaluation, or technical
> assistance to the participating agency to establish compliance.**

***Commentary***

***Sources and References:***

*28 CFR Part 20, section 20.38.*

# APPENDIX ONE: FEDERAL LAWS RELEVANT TO SEEKING, RETAINING, AND DISSEMINATING JUSTICE INFORMATION

**Federal Laws**

The following federal laws should be reviewed when developing a privacy
and civil rights policy for a justice information system.

-   The 1^st^, 4^th^, and 6^th^ amendments to the US. Constitution;

-   Federal Civil Rights laws;

-   Brady Handgun Violence Prevention Act, 18 USC §§ 921, 922, 924, and
    925A, and 42 USC §3759, United States Code, Title 18 - Crimes and
    Criminal Procedure, Pub. L. 103-159 (Nov. 30, 1993), 107 Stat. 1536;

-   Computer Matching and Privacy Act of 1988, 5 U.S.C. §552a(a); see
    also Office of Management and Budget, Memorandum M-01-05, "*Guidance
    on Inter-Agency Sharing of Personal Data -- Protecting Personal
    Privacy*," December 20, 2000.

-   Confidentiality of Identifiable Research and Statistical
    Information - 28 CFR Part 22: Code of Federal Regulations, Title
    28\--Judicial Administration, Chapter I\--Department of Justice,
    Part 22

-   Criminal History Records Exchanged For Non-Criminal Justice
    Purposes, 42 USC §§14611 et seq., United States Code, Title 42,
    Chapter 140, Subchapter II;

-   Crime Identification Technology, 42 USC §14601, United States Code,
    Title 42, Chapter 140, Subchapter I;

-   Criminal Intelligence System Operating Policies - 28 CFR Part 23:
    Code of Federal Regulations, Title 28- Judicial Administration,
    Chapter 1 -- Department of Justice, Part 23 -- Criminal Intelligence
    Systems Operating Policies;

-   Criminal Justice Information Systems - 28 CFR Part 20: Code of
    Federal Regulations, Title 28- Judicial Administration, Chapter 1 --
    Department of Justice, Part 20 -- Criminal Justice Information
    Systems;

-   Electronic Communications Privacy Act of 1986, Public Law 99-508,
    codified at 18 USC sections 2510-2522, 2701-2709, and 3121-3125;

-   Federal Records Act, 44 USC Chapter 33 - United States Code, Title
    44 -- Public Printing and Documents, Chapter 33 -- Disposal of
    Records

-   Freedom of Information Act -- FOIA, 5 U.S.C. §552 - United States
    Code, Title 5 -- Government Organization and Employees, Part I --
    The Agencies Generally, Chapter 5 -- Administrative Procedure,
    Subchapter II -- Administrative Procedure;

-   National Child Protection Act of 1993, Pub. L. 103-209 (Dec. 20,
    1993), 107 Stat. 2490, which is classified principally to subchapter
    VI (Sec. 5119 et seq.) of chapter 67;

-   National Crime Prevention and Privacy Compact, 42 USC §14616, United
    States Code, Title 42, Chapter 140, Subchapter II;

-   Privacy Act of 1974 - 5 USC. §552a, United States Code, Title 5 -
    Government Organization and Employees, Pub. L. 93-579 (Dec. 31,
    1974), 88 Stat. 1896;

-   Protection of Human Subjects - 28 CFR Part 46: Code of Federal
    Regulations, Title 28 - Judicial Administration, Chapter 1 --
    Department of Justice, Volume 2, Part 46;

# APPENDIX TWO: STATE, LOCAL, AND TRIBAL LAWS POSSIBLY RELEVANT TO SEEKING, RETAINING, AND DISSEMINATING JUSTICE INFORMATION

**Sources of State, Local, and Tribal Law:**

The following state, tribal, and local laws should be reviewed when
developing a privacy and civil rights policy for a justice information
system.

-   Constitution, in particular provisions regarding information
    gathering, such as search and seizure

-   Statutes

-   Regulations

-   Court rules, procedural and practice rules

-   Case law - federal and state

-   Attorneys General opinions

-   Executive orders

-   Professional codes of ethics

-   Local ordinances

-   Tribal ordinances, resolutions, and descriptions of tribal customary
    laws

-   Treaties.

**Specific Categories of State, Local, and Tribal Laws to Review
Regarding seeking, retaining, and disseminating justice information:**

-   Access to criminal history or arrest information for applicants for
    care giver positions

-   Access to criminal history or arrest information for applicants for
    regulated professions

-   Criminal history repository

-   Integrated justice information system

-   Criminal intelligence system

-   Juveniles, in particular regarding confidentiality of proceedings

-   Family relations laws, in particular child custody and domestic
    violence

-   Medical records and information

-   Civil harassment, restraining, and stay-away orders

-   Civil commitments of individuals who pose a threat to themselves or
    others because of mental illness

-   Public records acts, in particular, regarding justice system records
    and information

-   Open meeting laws as they affect the agency or the governing body of
    a justice information system

**Activities or Events Subject to State, Local, and Tribal Laws**

The following list describes activities, events, transactions, and
information exchanges that typically are the subject of justice
information systems:

-   Law enforcement contacts, in particular traffic stops.

-   Informants.

-   Surveillance, including pen registers and packet sniffers.

-   Search warrants.

-   Arrest warrants.

-   Arrests.

-   Interrogation.

-   Lineups.

-   Police logs.

-   Police reports---field reports, formal reports, supplemental
    reports.

-   Laboratory or forensic testing or analysis.

-   Investigation---existence, work products.

-   Trial activities.

-   Information generated during a trial.

-   Victim advocate logs.

-   Convictions---any distinctions based on seriousness of crime.

-   Sentencing information, including programs providing alternatives to
    incarceration.

-   Treatment programs, including those imposed by problem solving
    courts such as drug courts.

-   Probation---in particular, terms and conditions.

-   Parole---in particular, terms and conditions.

-   Domestic violence, civil harassment, and stay-away orders.

-   Enforcement of planning, zoning, environmental, and similar laws.

-   Other events, transactions, or activities revealed in the project\'s
    information exchange analysis.

# BIBLIOGRAPHY FOR SOURCES AND REFERENCES

[Privacy Policy Development Guide]{.smallcaps}, Bureau of Justice
Assistance, [DRAFT]{.mark}, September 2005.

CCJ/COSCA Guidelines: [Public Access to Court Records: Guidelines for
Policy Development by State Courts]{.smallcaps}; by Martha Wade Steketee
and Alan Carlson, National Center for State Courts, August 2002,
available at:
<http://www.courtaccess.org/modelpolicy/18Oct2002FinalReport.pdf>.

DOJ Order on Safeguarding Unclassified Sensitive Information,
[DRAFT]{.mark} U.S. Department of Justice, DOJ Order 2620.[xx]{.mark},
Safeguarding Unclassified Sensitive Information.

Fusion Center Guidelines: Global Justice Information Sharing Initiative,
[Fusion Center Guidelines, Developing and Sharing Information and
Intelligence in a New World]{.smallcaps}, version 1.0, July 2005.

IACP Criminal Intelligence Model Policy, International Association of
Chiefs of Police, version June 2003.

IACP, [Criminal Intelligence Sharing: A National Plan for
Intelligence-Led Policing at the Local, State, and Federal
Levels,]{.smallcaps} International Association of Chiefs of Police,
August 2002 (available at:
<http://www.theiacp.org/documents/pdfs/Publications/intelsharingreport.pdf>.)

IACP Model Statutes Project: International Association of Chiefs of
Police, revised October 2001.

IALEIA [Law Enforcement Analytic Standards]{.smallcaps}, International
Association of Law Enforcement Intelligence Analysts, Inc., November
2004.

IIR Statewide Intelligence System, Sample Operating Policies and
Procedures, Institute for Intergovernmental Research, (date unknown)

NASCIO Compendium: [Information Privacy: A Spotlight on Key
Issues]{.smallcaps}, National Association of State Chief Information
Officers (NASCIO), February 2004, Version 1.0, available at:
<https://www.nascio.org/publications/index.cfm#privacyguide>.

NCISP Recommended Outreach Plan: National Criminal Intelligence Sharing
Plan, Recommended Outreach Plan July 2005. [DRAFT?]{.mark}

[NCISP: The National Criminal Intelligence Sharing Plan, Solutions and
Approaches for A Cohesive Plan to Improve Our Nation's Ability to Share
Criminal Intelligence,]{.smallcaps} Global Justice Information Sharing
Initiative, Office of Justice Programs, U.S. Dept of Justice, issued
October 2003.

NCJA, [Justice Information Justice Information Privacy Guideline,
Developing, Drafting and Assessing Privacy Policy for Justice
Information Systems]{.smallcaps}, September 2002 (available at:
<http://www.ncja.org/pdf/privacyguideline.pdf>.)

OECD Principles: [Guidelines on the Protection of Privacy and
Transborder Flows of Personal Data,]{.smallcaps} *Annex to the
Recommendation of the Council of 23rd September 1980*, Guidelines
Governing The Protection Of Privacy And Transborder Flows Of Personal
Data, Part Two. Basic Principles of National Application.

"*Privacy and Information Quality Policy Development for the Justice
Decision Maker,*" Global Justice Information Sharing Initiative, Office
of Justice Programs, U.S. Dept of Justice, October 2004, located at
<http://it.ojp.gov/documents/200411_global_privacy_document.pdf>

RISS Privacy Policy: Regional Information Sharing Systems Privacy
Policy, dated January 2004.

Safe Harbor Privacy Principles: U.S. Department of Commerce, issued July
21, 2000, available at:
<http://export.gov/safeharbor/SHPRINCIPLESFINAL.htm>

SEARCH Compendium: [Compendium of State Privacy and Security
Legislation: 2002 Overview, Criminal History Record
Information]{.smallcaps}, Bureau of Justice Statistics, November 2003,
NCJ 200030, available at:
<http://www.ojp.usdoj.gov/bjs/abstract/cspsl02.htm>

Smith, Robert Ellis[, Compilation of State and Federal Privacy
Laws]{.smallcaps}, The Privacy Journal, [2002,]{.smallcaps} with 2004
Supplement[, ISBN 0-930072-]{.smallcaps}17-0, new 13-digit ISBN:
9780930072179, available through:
<http://www.privacyjournal.net/work1.htm>.

[^1]: Such agreements are referred to by a range of acronyms, depending
    on the state or type of agreement. Examples include IAA
    (Inter-Agency Agreement), JPA (Joint Powers Agreement), MOA
    (Memorandum of Agreement), or MOU (Memorandum of Understanding).

[^2]: For a more complete review of the process see [Privacy Policy
    Development Guide]{.smallcaps}, Bureau of Justice Assistance, DRAFT,
    September 2005.

[^3]: Federal regulations for criminal history records systems use the
    terms "collecting, storing and disseminating" (28 CFR 20.20(a)) and
    the regulations for criminal intelligence systems uses the terms
    "collect and maintain" (28 CFR 2320(a)).