January 22, 1979

79-7 MEMORANDUM OPINION FOR THE

DIRECTOR, FEDERAL BUREAU OF

INVESTIGATION

Federal Bureau of Investigation—Disclosure of

Criminal Record—Admission to the Bar

This responds to your request for our opinion whether the Florida 

Board of Bar Examiners is authorized to receive criminal history record information maintained by the Federal Bureau of Investigation (FBI) for the 

purpose of investigating the character of applicants for admission to the 

bar. We understand that there is no Florida statute that authorizes 

criminal history record exchanges between the Board and the FBI. The 

Board is established by rule of the Florida Supreme Court under that 

court’s inherent judicial authority to regulate admission to the bar.' By 

rule of the court, the Board is authorized to investigate the character and 

fitness of applicants for admission.2 The Board’s own rules require that 

applicants submit fingerprints.3 On the basis of these facts, we concur in 

your conclusion that neither § 201 of the Act of October 25, 1972, 86 Stat. 

1115, 28 U.S.C. § 534 note, nor 28 CFR § 20.33(a)(1), authorizes the FBI 

to provide the Board the criminal history record information for the purpose of determining the fitness of bar applicants.

Under 28 CFR § 20.33(a)(1), the FBI may make criminal record history 

information available to “ criminal justice agencies for criminal justice 

purposes.” The Commissioner of the Florida Department of Law Enforcement argues that the Board of Bar Examiners is a “ criminal justice 

agency,” as defined by 28 CFR § 20.3(c), and is therefore authorized to 

receive that information. We need not decide this point. The “ administration of criminal justice,” as defined by 28 CFR § 20.3(d), includes only

1 See Fla. Stat. A nn. § 454.021; Rules of the Florida Supreme Court Relating to Admissions to the Bar, Art. 1, § 2; see generally, Barr v. Watts, 70 So. 2d 347, 350 (1953).

2 Rules of the Florida Supreme Court Relating to Admissions to the Bar, Art. 2, § 12.

‘ Rules of the Florida Board o f Examiners, Rule II, §10(4).

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the detection and prosecution of crimes, the administration of pretrial 

release, and the operation of a correctional system. It does not include the 

licensing of attorneys to practice law. See generally, Menard v. Mitchell,

328 F. Supp. 718, 726-27 (D.D.C. 1971, aff’d in part, rev’d in part on

other grounds sub nom. Menard v. Saxbe, 498 F. (2d) 1017 (D.C. Cir. 

1974)). Regardless of whether the Board is a criminal justice agency, 28 

CFR § 20.33(a)(1) does not authorize it to receive criminal record history 

information for the purpose of determining the character of applicants to 

the bar.

Under § 201 of the Act, as implemented by 28 CFR § 20.33(a)(3), the 

FBI may provide criminal record history information to a State for 

employment or licensing purposes only if “ authorized by State statute.” 

Section 201 was enacted in response to the Menard decision. It held that 

the FBI lacked authority under then existing law to disseminate criminal 

history information outside the Federal Government for employment or 

licensing purposes. It also stated that statutes governing the dissemination 

of criminal history information must be strictly construed to avoid serious 

constitutional issues. The express restrictive language of § 201, when read 

in the light of Menard, requires a narrow interpretation of State authority 

to receive criminal history information from the FBI for employment or 

licensing use.

Accordingly, this Office has construed § 201 to permit a State board of 

bar examiners to obtain criminal history information from the FBI only 

when a statute expressly authorized it to fingerprint applicants or to exchange criminal history information with other agencies. As your 

memorandum points out, we have specifically concluded that court or administrative rules based on general authority to regulate admission to the 

bar do not meet the requirements of § 201. The facts in this case are identical to those in our prior opinion on the subject.

The State has argued that the rules of the Florida Supreme Court requiring bar applicants to be fingerprinted are the full equivalent of a statute 

because that court has authority superior to the legislature in this area. 

However, the Florida court has held that the legislature has “ concurrent” 

power to regulate bar admissions. See, Barr v. Watts, 70 So.2d 347, 350 

(1953). It is therefore questionable as a matter of Florida law whether the 

legislature lacks power to enact a statute requiring fingerprinting. More 

importantly, the language of § 201 is explicit. Had Congress wished to permit dissemination authorized by judicial or administrative rule, it could 

easily have done so by having the section read “ by law” instead of “ by 

statute.” In the light of the Menard decision, this choice of language must 

be given effect.

M a r y C. L a w t o n

Deputy Assistant Attorney General

Office o f Legal Counsel

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