128 [79 Op. Att’y

CRIMINAL RECORDS

COLLEGES AND UNIVERSITIES ) FACULTY ACCESS TO CRIMINAL

HISTORY INFORMATION ABOUT STUDENTS

October 5, 1994

The Honorable John J. Hafer

Maryland Senate

You have requested our opinion concerning the circumstances,

if any, under which criminal history information about a student at

Frostburg State University may be disclosed by the University Police

to a faculty member or other member of the university community.

For the reasons stated below, we conclude that the University

Police generally may not disclose the student’s criminal history

record information to an interested faculty member or other person.

I

Background

As we understand the situation, a student at Frostburg State

University was charged with indecent exposure. The University

Police had obtained information about the arrest from the Central

Repository of the Department of Public Safety and Correctional

Services. After word of the arrest spread among members of the

college community, a faculty member made an informal request to

the University Police for the arrestee’s conviction record, if any.

The University was advised by its counsel that State law prohibited

the police from disclosing this information. You suggest in your

letter requesting an opinion that, in order to further the welfare of

other members of the community, the criminal history information

should be available to the public. 

II

Criminal History Record Information

Under federal regulations, the term “criminal history record

information” (“CHRI”) is defined as “information collected by

criminal justice agencies on individuals consisting of identifiable
Gen. 128] 129

 The term “nonconviction data” means “arrest information without 1

disposition if an interval of one year has elapsed from the date of arrest

and no active prosecution of the charge is pending” or information

otherwise indicating that charges will not be pursued, as well as acquittals

and dismissals of charges. 28 C.F.R. §20.3(k). The federal regulations

also impose certain stringent limitations on the dissemination of juvenile

records. 28 C.F.R. §20.21(d).

descriptions and notations of arrests, detentions, indictments,

information, or other formal criminal charges, and any disposition

arising therefrom, sentencing, correctional supervision, and release.”

28 C.F.R. §20.3(b). Any information that the Frostburg State

University Police may have collected about the student who was

charged with a crime constitutes CHRI. 

The federal regulations require that “nonconviction data” be

subject to limited dissemination only. These data may be 1

disseminated to criminal justice agencies, certain other authorized

individuals and agencies, and researchers. 28 C.F.R. §20.21(b).

Apart from these particular requirements, however, the federal

regulations generally defer to state law regarding the dissemination

of CHRI: “States and local governments will determine the

purposes for which dissemination of [CHRI] is authorized by state

law, executive order, local ordinance, court rule, decision or order.”

28 C.F.R. §20.21(c)(3). 

Under the Maryland scheme governing CHRI, the Secretary of

Public Safety and Correctional Services is to issue regulations that

govern the criminal justice information system in Maryland. Article

27, §746(a). See generally 63 Opinions of the Attorney General 197,

214-15 (1978). The Secretary’s regulations are to address, among

other things, the “dissemination of criminal history record

information by the courts and all other criminal justice agencies.”

Article 27, §746(b)(1). 

The Secretary’s regulations differentiate between

nonconviction CHRI and conviction CHRI. Dissemination of

nonconviction CHRI to a private party is flatly prohibited “unless the

private party petitioner is expressly authorized by statute, ordinance,

executive order, or court rule, order, or decision specifying the right

of access to nonconviction CHRI and the purpose and conditions for

access.” COMAR 12.15.01.13A(2). 
130 [79 Op. Att’y

 It is also doubtful whether any of the three types of harm

2

specified in the regulation would be applicable.

The grounds for disclosure of conviction CHRI are less

restrictive, but still narrow. The Central Repository is prohibited

from disclosing such CHRI to a private party unless the party

“convincingly demonstrates” that the information pertains to

someone who “as an employee, ... volunteer, or member of the

association” “will have the capability to”:

(a) jeopardize the life or safety of

individuals;

(b) cause significant loss or damage by

illegally accessing or misusing the fiscal or

nonfiscal assets of the employer ... or public;

or

(c) otherwise engage or participate in

criminal conduct in violation of State, local,

and federal law.

COMAR 12.15.01.13A. It is highly doubtful whether a student on

a college campus is, with respect to a faculty member, “an employee,

... volunteer, or member of [an] association.” Thus, a faculty 2

member petitioning the Central Repository for conviction

information about a student would not be able to obtain it. 

The regulations contemplate a role for a law enforcement

agency like the University Police in responding to private party

requests for CHRI. But the police would be authorized to do so only

if a “written agreement” authorizes the police to act on behalf of the

Central Repository in responding to CHRI inquiries. COMAR

12.15.01.10B. It is our understanding that no such written

agreement exists between the University Police and the Central

Repository. Even if there were such an agreement, the police would

be subject to the same criteria for disclosure of conviction CHRI as

is the Central Repository itself and, for the reasons explained in the

previous paragraph, we doubt that conviction CHRI would be
Gen. 132] 131

 We are not here discussing the situation in which a student might 3

be an employee supervised by a faculty member (a research assistant, for

example). In that situation, a governmental “appointing authority” may

obtain access to both conviction and nonconviction CHRI under a

different regulation, COMAR 12.15.01.12B(1). See also 71 Opinions of

the Attorney General 242 (1986) (legality of inquiring about prospective

employee’s criminal convictions).

 We have considered whether the federal Family Educational 4

Rights and Privacy Act, commonly known as the Buckley Amendment,

would bar the University from disclosing CHRI relating to a University

student. Under 20 U.S.C. §1232g(a)(4)(B)(ii), the “education records”

that the Buckley Amendment generally bars from disclosure without a

student’s consent excludes records maintained by a law enforcement

agency of the educational agency or institution that were created by the

law enforcement unit for the purpose of law enforcement.” Thus, we do

not believe that the Buckley Amendment would prohibit a change in State

law to allow a greater dissemination of conviction CHRI about students.

disclosable to a faculty member interested in the criminal history of

his or her students.

3

Should you believe that, as a policy matter, information of this

kind ought to be generally available from the University Police to

members of the university community, a change in the law will be

needed. The change could be accomplished through the rulemaking

process by the Secretary or, of course, by legislation. At least with

respect to conviction CHRI, federal law would not be an impediment

to such a change in the State’s restrictions.4

III

Conclusion

In summary, it is our opinion that State law currently prohibits

the Frostburg State University Police from disclosing to a faculty

member criminal history record information about a student. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice