U.S. Department of Justice

Federal Bureau of Investigation

Criminal Justice Information Services Division

Next Generation Identification Audit

Noncriminal Justice Access to Criminal History

Record Information

Policy Reference Guide

Telephone – 304–625–3020

E-mail – <NGIAudit@leo.gov>

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Table of Contents

Criminal History Record Information...................................................................................................... 1

Use of CHRI................................................................................................................................................. 2

Fingerprint-based

Coordination and Approval

Authorized Requests

Implementation

Re-use

Name-based

Coordination and Approval

Authorized Requests

Implementation

Re-use

Dissemination of CHRI............................................................................................................................... 5

Authorized Recipients

Receiving Departments

Related Agencies

Single Need/Purpose

Multiple Needs/Purposes

Other Authorized Entities

Jurisdictional Control

Public Access

Additional Considerations

General

Notifications

Subject of the Record

Residual Access

Purpose for Disclosure of CHRI.............................................................................................................. 11

Reason Fingerprinted Field

Interstate Identification Index Purpose Codes

Reason for Request

Agency Identifiers for Receipt of CHRI

Independent Application, Fingerprinting, and Adjudication Processes

Documentation of Reason for Request

Applicant Notification .............................................................................................................................. 12

FBI Privacy Act Statement

FBI Record Access and Amendment

Additional Considerations

Noncriminal Justice Agency Audits ........................................................................................................ 17

User Fee ..................................................................................................................................................... 17

Criminal Justice (No-fee)

Volunteer (Reduced-fee)

Abbreviations and Acronyms .................................................................................................................. 19

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Criminal History Record Information

The Compact, at Title 34, U.S.C., Section 40316, Article I, includes the same statutory definition

of CHRI as that established at Title 28, CFR, Section 20.3: information collected by criminal

justice agencies on individuals consisting of identifiable descriptions and notations of arrests,

detentions, indictments, or other formal criminal charges, and any disposition arising therefrom,

including acquittal, sentencing, correctional supervision, and release; the term does not include

identification information such as fingerprint records if such information does not indicate the

individual’s involvement with the criminal justice system. In addition, the CJIS Security Policy

defines CHRI as a subset of Criminal Justice Information consisting of any notations or other

written or electronic evidence of an arrest, detention, complaint, indictment, information, or

other formal criminal charge relating to an identifiable person that includes identifying

information regarding the individual as well as the disposition of any charges.

Information is considered CHRI if it is transferred or reproduced directly from CHRI received as

a result of a national FBI check and associated with the subject of the record. This includes

information such as conviction/disposition data as well as identifiers used to index records

regardless of format. Examples of formal and informal products or verbalizations include:

correspondence such as letters and e-mails; documents such as forms and hand-written notes;

conversations either in person or by telephone; and data fields such as those stored in database

tables or spreadsheets. However, information is not considered CHRI if it is obtained as a result

of using CHRI received from a national FBI check as a lead to reach out to source record owners

such as local courts or state criminal history record repositories. As a prerequisite, both the

process used to obtain the source record information and the resulting source record information

itself must not directly reference or be attributed to the national FBI check.

Information is considered CHRI if it confirms the existence or nonexistence of CHRI. This FBI

policy is derived from and mirrors the general policy on dissemination found at Title 28, CFR,

Section 20.21, directly relating to applicable state and local criminal history record information

systems. This includes applicant status information, which is either directly attributed to or

predominately based on a national FBI check, when no recognized authority or inherent need

exists for the release of such information.

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Use of CHRI

The requirements for the use of CHRI for noncriminal justice purposes are derived from various

federal statutes, regulations, policies, and interpretations thereof, to include rules and procedures

promulgated by the Compact Council. Primary references for these requirements include:

 Title 28, U.S.C., Section 534 (a)(4)

 Title 34, U.S.C., Section 40316, Article IV (c) and Article V (a) and (c)

 Title 28, CFR, Section 20.33

 Title 28, CFR, Section 50.12

 Title 28, CFR, Section 901

 III/NFF Operational and Technical Manual, Chapter 3

 CJIS Advisory Policy Board, Concept for the Exchange of Criminal History Records for

Noncriminal Justice Uses by Means of The III, Section B

 Compact Council’s Noncriminal Justice Online Policy Resources

The NGI audit assesses four categories of requirements associated with the use of CHRI for

noncriminal justice purposes: (1) Coordination and Approval, (2) Authorized Requests, (3)

Implementation, and (4) Re-use. While baseline requirements for both fingerprint-based and

name-based use of CHRI for noncriminal justice purposes essentially parallel one another, the

four categories of requirements are presented from both perspectives for clarity and reporting

purposes.

Use of CHRI (Fingerprint-based)

Unless authorized pursuant to federal statutory authority or Compact Council regulations

promulgated based upon federal statutory authority, noncriminal justice background checks of

the III System must be supported by fingerprints or other approved forms of positive

identification in order to determine that the subject of a record search is the same person as the

subject of a criminal history record indexed in the III System. This requirement is memorialized

in the Compact. The Compact Council has accepted two methods for determining positive

identification for exchanging CHRI for noncriminal justice purposes, ten-rolled fingerprints and

ten-flat fingerprints.

Coordination and Approval

Agencies must only leverage recognized/approved authorities for submission of

noncriminal justice fingerprint-based requests for CHRI. Examples of such authorities

include Public Law 92-544, the NCPA/VCA, the Adam Walsh Act, and the Serve

America Act. Prior to implementation of any federal statutory authority, a state or federal

agency must coordinate with the FBI to determine the requirements for submitting under

the specific authority (e.g., system changes, issuance of an ORI, fingerprint submission

procedures, use of specific reason fingerprinted, etc.), and when applicable, obtain formal

approval prior to use. When applicable, agencies must also obtain updated approval from

the FBI for any changes associated with a previously approved authority, such as Public

Law 92-544 state statutes. In addition, agencies must notify the FBI which authority is

the exclusive remedy when multiple approved authorities exist for a particular purpose

(applicant type). This specific requirement currently applies when states must formally

designate either an approved Public Law 92-544 state statute or the NCPA/VCA for

providers of care to vulnerable populations if state law is not clear or silent on the

NCPA/VCA.

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Authorized Requests

Agencies must only submit noncriminal justice fingerprint-based requests for CHRI for

purposes (applicant types) covered by the authority leveraged for the request. In

addition, agencies must only submit requests for purposes that are known to exist at the

time of submission. Agencies must not submit requests for a future anticipated need,

even if the need is covered by an approved authority.

Implementation

Agencies must implement all applicable administrative and procedural provisions

associated with the authority leveraged to submit noncriminal justice fingerprint-based

requests for CHRI (e.g., signed applicant statements under NCPA/VCA and VECHS

agency user agreements).

Re-use

Agencies must only use CHRI received as a result of noncriminal justice fingerprintbased requests for the specific purpose originally requested. Agencies must not

subsequently re-use CHRI for unrelated needs, even if the new needs are covered by a

recognized/approved authority. A purpose or need for use is a request for CHRI to

adjudicate a specific application for a noncriminal justice purpose (e.g., license, position

of employment, benefit, etc.) that is known at the time the request is made, pursuant to an

approved statutory authority, and based on the positive identification via fingerprint

submission of the applicant. The basic parameters for use consists of (chronologically):

1) authority for access, 2) application and fingerprint submission, 3) receipt of CHRI, 4)

adjudication, and 5) closing or maintenance activities.

However, if a special set of circumstances exist that show an extremely close relation to

the original purpose, CHRI that was made available for the original purpose could

possibly be used again for the new purpose. Under this premise, the new purpose is so

closely related to the original purpose that both are considered singular in nature. The

primary factors when considering the circumstances that may potentially relate multiple

purposes include: the statutory authority being used; the agency or agencies involved;

the type of license/position of employment/benefit being applied for; and the

application/adjudication process. This consideration is based on standing audit practices

and legal interpretations of related agency as applied to the use of CHRI. It is important

to note that this type of acceptable re-use is quite infrequent and very dependent upon the

specific scenario involved. As such, it is highly recommended that re-use of this nature

be closely coordinated with the FBI prior to implementation. For example, a person

applies to be a substitute teacher with public School Board A. School Board A completes

the fingerprint process and submits the fingerprints pursuant to an approved state statute

that authorizes background checks for school employment purposes. Then one month

later the individual also applies to be a substitute teacher with public School Board B.

School Board B requests a copy of the CHRI from School Board A which provides it. In

this case, since School Board A and School Board B are both covered by the same statute

and using CHRI for a similar applicant type within a relatively short period of time, these

can be considered to be for the same purpose. However, if the applicant had applied one

month later for a liquor license from the ABC Board, School Board A would not be

permitted to provide the CHRI to the ABC Board. Although the background checks are

in a relatively short period of time of each other, the applicant types are significantly

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different enough, and the ABC Board would not be covered by the same statutory

authority as School Board A. In addition, CHRI may be re-used in limited circumstances

under the NCPA/VCA VECHS program.

It is important to note that FBI CHRI is considered instantly outdated as new information

may be added to the record or deleted at any time. Although re-use of CHRI in certain

situations may be acceptable, agencies that accept the risk of using outdated CHRI must

understand that the information is subject to change.

Use of CHRI (Name-Based)

Access to the III System using name-based queries and record request messages is not permitted

for noncriminal justice purposes, unless authorized pursuant to federal statutory authority or

Compact Council regulations promulgated based upon federal statutory authority.

Coordination and Approval

Agencies must only leverage recognized/approved authorities for submission of namebased noncriminal justice III System queries and record request messages. Examples of

such authorities include the Compact Council’s Fingerprint Submission Requirements

Rule (Purpose Code X), the Housing Opportunity Extension Act (Purpose Code H), and

the Security Clearance Information Act (Purpose Code S). When applicable, agencies

must coordinate with the FBI to determine specific requirements for use of a particular

authority and obtain formal approval prior to use (e.g., Purpose Code X). When

applicable, agencies must also obtain updated approval from the FBI for any changes

associated with a previously approved authority.

Authorized Requests

Agencies must only submit name-based noncriminal justice III System queries and record

request messages for authorized purposes covered by the authority leveraged for the

request (i.e., federal statutory authority or Compact Council regulations promulgated

based upon federal statutory authority). In addition, agencies must only submit requests

for purposes that are known to exist at the time of submission. Agencies must not submit

requests for a future anticipated need, even if the need is covered by an approved

authority.

Implementation

Agencies must implement applicable administrative/procedural provisions required by

the authority leveraged to submit name-based III checks for noncriminal justice purposes

(e.g., follow-up fingerprints for Purpose Code X and limits on direct access by public

housing authorities for Purpose Code H).

Re-use

Agencies must only use CHRI received as a result of noncriminal justice name-based III

System queries and record request messages for the specific purpose originally requested.

Agencies must not subsequently re-use CHRI for unrelated needs, even if the new needs

are covered by a recognized/approved authority. Congruent with requirements for CHRI

received as a result of fingerprint-based requests, re-use of CHRI received via namebased III checks may be acceptable in limited circumstances.

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Dissemination of CHRI

The requirements for the dissemination of CHRI for noncriminal justice purposes are derived

from various federal statutes, regulations, policies, and interpretations thereof, to include rules

and procedures promulgated by the Compact Council. Primary references for these requirements

include:

 Title 28, U.S.C., Section 534 (a)(4)

 Title 34, U.S.C., Section 40316, Article IV (c)

 Title 28, CFR, Section 20.33

 Title 28, CFR, Section 50.12

 Title 28, CFR, Section 906

 III/NFF Operational and Technical Manual, Chapter 3

 Compact Council’s Noncriminal Justice Online Policy Resources

The NGI audit assesses three categories of requirements for dissemination of CHRI for

noncriminal justice purposes: (1) Authorized Recipients, (2) Jurisdictional Control, and (3)

Public Access. These categories center on the baseline requirement for allowable dissemination

to receiving departments, related agencies, and other authorized entities. It should be noted that

while the requirements below are written primarily from a state perspective, they also apply to

federal and federally-regulated agencies that request, receive, and use CHRI for noncriminal

justice purposes.

Authorized Recipients (Receiving Departments and Related Agencies)

CHRI may only be disseminated to receiving departments and related agencies that are

authorized relative to the federal statutory authority used to obtain CHRI. States must ensure

that recipients fall within allowable parameters established by federal statutory authorities

leveraged for national criminal history checks.

As with the use of CHRI, parameters for dissemination are derived from the specific federal

statutory authority leveraged to obtain CHRI. CHRI may only be disseminated to entities that

are authorized relative to the federal statutory authority used to submit a fingerprint check. For

example:

 Dissemination is limited to officials of state and local governments for CHRI obtained

pursuant to Public Law 92-544.

 Dissemination is limited to “authorized agencies” defined as a division or office of a state

for CHRI obtained pursuant to the NCPA/VCA. However, dissemination of CHRI is

extended to nongovernmental qualified entities if a VECHS program is implemented.

 Dissemination is limited to the following entities for CHRI obtained pursuant to the

Adam Walsh Act: 1) child welfare agencies, which include states, local agencies, other

public agencies, or any other private agencies under contract with a state or local agency

responsible for licensing or approval of foster or adoptive parents; and 2) public or

private elementary or secondary schools as well as state and local educational agencies.

 Dissemination is limited to governmental agencies for CHRI obtained pursuant to the

Serve America Act.

It is important to recognize that state or local laws, ordinances, administrative rules, or

procedures may not be more permissive regarding dissemination of CHRI relative to the federal

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authority used to obtain CHRI. However, states may be more restrictive and establish additional

limitations on dissemination.

Receiving Departments

States should designate primary authorized recipients responsible for accessing or

receiving CHRI directly from the state repository for noncriminal justice purposes.

These agencies typically have statutory authority or regulatory obligations associated

with making fitness determinations and/or providing oversight of the employment or

licensing processes for particular categories of applicants. States must ensure that

primary receiving agencies fall within parameters established by the federal statutory

authorities being leveraged for national criminal history checks. CHRI may only be

disseminated to entities that are authorized relative to the federal statutory authority used

to obtain CHRI.

Depending upon the specific procedures used by a state, there may be multiple primary

agency types with access to CHRI for a particular type of national criminal history check.

For example, while one state’s procedures may only include disseminating CHRI directly

to a Department of Education for background checks of teachers, another state’s

procedures may include dissemination of CHRI directly to each local county school

board. Still another state’s procedures may include simultaneously disseminating CHRI

directly to both the Department of Education and a local county school board.

The term “agency” encompasses offices, departments, bureaus, and other subdivisions

associated with a particular agency’s organizational structure. Although baseline

dissemination requirements for CHRI are centered at the department and agency levels,

as a best business practice, states should limit access to the minimum necessary suboffices and personnel within a department or agency that are actually required for a

particular use. While authorized receiving agencies may exercise some level of

discretion and freedom of maneuver to distribute CHRI within their organizational

structure, they should be able to demonstrate a reasonable need for doing so. For

example, a local county school board may be designated as an authorized recipient of

CHRI for the purpose of conducting background checks for prospective teachers. CHRI

is stored as part of an electronic personnel records management system accessible by all

school board employees. Although the school board is an authorized recipient, it is in the

agency’s best interests to limit access to CHRI on the system to only the personnel within

the human resources department responsible for making fitness determinations. This will

limit the school board’s exposure to the inherent risks associated with unauthorized

dissemination of CHRI.

Many statutory authorities leveraged for national criminal history record checks limit

dissemination to governmental agencies. Most governmental agencies are readily

identified, such as those statutorily designated, funded, and organized as part of a state’s

executive, legislative, and judicial branches. However, governmental entities, such as

commissions and boards that may be comprised of political appointees, elected officials,

and/or officials from private industry, may also qualify as authorized recipients of CHRI.

Examples could include school boards and lottery commissions.

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Related Agencies

Two primary categories of related agency exist with respect to dissemination of CHRI.

The categories are based on the use of CHRI for a single need versus multiple needs, and

are derived from historical definitions of related agency doctrine as well as standing audit

practices and legal interpretations.

 Dissemination of CHRI to related agencies for a single need/purpose. This type

of dissemination of CHRI occurs when multiple agencies are involved in making

a single fitness determination associated with an application for a specific

authorized noncriminal justice purpose, such as a license, position of

employment, or benefit. In many instances, this type of related agency is a

secondary recipient of CHRI from a primary agency that receives CHRI directly

from the state level. The intent is to allow some level of flexibility within the

allowable parameters established by the federal statutory authority being

leveraged for the national criminal history check. For example, with the state’s

consent, the Department of Education and local county school boards are both

involved in adjudication of teacher employment applications. In addition, on an

ad-hoc basis, some of these local county school boards make CHRI available to

their local Sheriff’s Office in order to answer questions regarding specific charges

on criminal history records. Another example includes, with the state’s consent,

the Bureau of Professional Licensing and the Real Estate Commission are both

involved in adjudication of real estate license applications.

 Dissemination of CHRI to related agencies for multiple needs/purposes. This

type of dissemination of CHRI occurs when multiple agencies are involved in

making fitness determinations for separate but related needs associated with

multiple applications for specific authorized noncriminal justice purposes, such as

a license, position of employment, or benefit. This type of dissemination directly

correlates to the re-use of CHRI for related needs as described in the Compact

Council’s online policy resource, Use of FBI CHRI for Noncriminal Justice

Purposes. For example, if established requirements are met, there are limited

instances when CHRI may be disseminated between agencies pursuant to the

Public Law 92-544 Article IV sharing initiative or the NCPA/VCA VECHS

program. However, just as CHRI must not be re-used for subsequent unrelated

needs by the original requestor/recipient, it is imperative to recognize that CHRI

must also not be disseminated to another recipient for subsequent unrelated reuse. In addition, CHRI may not be disseminated to another recipient for future

anticipated uses, regardless of whether or not the needs are formally related.

Just as with the primary receiving agency, any related secondary recipient must also be

authorized relative to the federal statutory authority used to obtain CHRI. For example,

agencies related for the purpose of adjudicating an employment application for child day

care pursuant to Public Law 92-544 must be governmental. Note that even though a

private employer, such as a day care center, may be perceived as having a commonality

of purpose, CHRI may not be disseminated to them by the governmental agency. States

should be able to demonstrate a reasonable need for which they have designated agencies

as related for the purpose of adjudicating a particular type of applicant.

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It is important to recognize the distinction between authorized recipients, related agencies, and

contractors. A related agency is essentially a specially designated authorized recipient with an

inherent authority to access CHRI, and therefore does not require formal implementation of the

Compact Council’s Security and Management Control Outsourcing Standard for

Non-Channelers. However, a governmental or private contractor has no such inherent authority,

and therefore does require formal outsourcing implementation. Authorized recipients may not

leverage outsourcing to create an authority for the intended purpose of designating an entity as a

related agency. For example, pursuant to Public Law 92-544, local county school boards are

typically considered to be related to the Department of Education; however, private schools

would not be considered related agencies, because they are nongovernmental. As such, the

Department of Education could not implement outsourcing to designate a private school as a

“contractor” to allow the private school access to CHRI for the purpose of making fitness

determinations on the private school’s applicants. As an alternative, the state could consider

leveraging the Adam Walsh Act or the NCPA/VCA VECHS program, both of which authorize

dissemination to nongovernmental entities, thus designating such entities as authorized

recipients.

Other Authorized Entities

For NGI audit purposes, other authorized entities represent assessments of specific requirements

not directly assessed or reported as part of the Authorized Recipients category.

Jurisdictional Control

Agencies outside of a state’s jurisdiction cannot be designated as related agencies, even

when a congruent related need appears to exist for the use of CHRI. The dissemination

restriction primarily centers on each state’s individual authority and obligation to

administer access to CHRI. Each state has the authority to determine whether or not to

conduct particular types of noncriminal justice background checks, and each state is

responsible for establishing the mechanisms and procedures for those checks within its

jurisdiction. In addition, each state possess limited authority to meet obligations for

maintaining appropriate controls, such as user agreements and audits, outside of its

jurisdiction, especially with respect to another state’s governmental agencies. In

conjunction with the more obvious jurisdictional concerns associated with one state’s

governmental agency leveraging another state’s statutes under Public Law 92-544,

similar jurisdictional concerns also exist with the use of other statutory authorities such as

the Adam Walsh Act or the NCPA/VCA. Examples of unauthorized dissemination

include:

 One state governmental agency sharing CHRI with another state’s governmental

agency for adoption purposes when the child and prospective parents reside in

different states, even if both states have approved Public Law 92-544 state

statutes.

 Criminal history sharing initiatives involving participation in national compacts,

associations, or databases such as those for child placement or

employment/licensing in the health care industry.

This dissemination restriction is not intended to limit a state from making CHRI available

in very limited situations to certain nongovernmental entities outside of the state’s

geographical boundaries when such dissemination is specifically authorized and formal

jurisdictional authority is established to maintain adequate controls. It is very important

to recognize that in order for dissemination to occur beyond a state’s geographical

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boundaries, there must first be an approved statutory authority which allows

nongovernmental entities access to CHRI within the state’s geographical boundaries.

There must also be a recognized authority and obligation to formally establish security

controls over the nongovernmental entities. For example, it is acceptable for a state to

leverage an out-of-state private contractor for record archiving and destruction, since

access to CHRI by private contractors is authorized pursuant to Title 28, CFR, Section

906, and jurisdictional authority for controls such as audits would be formally established

through implementation of the Security and Management Control Outsourcing Standard

for Non-Channelers.

Public Access

CHRI must not be disseminated to the general public. This includes maintaining CHRI

in formats that are accessible by the public or within records that are subject to release

through public record requests. However, CHRI may be disclosed as part of the

adjudication process during a hearing that is open to the public if the agency

demonstrates: 1) the hearing is based on a formally established requirement; 2) the

applicant is aware prior to the hearing that CHRI may be disclosed; 3) the applicant is not

prohibited from being present at the hearing; and 4) CHRI is not disclosed during the

hearing if the applicant withdraws from the application process. For example, a board or

commission may be authorized to access CHRI, and as part of regularly scheduled

meetings, applicant appeals are discussed as standard agenda items. Even when the

specific conditions are met to allow disclosure during a public hearing, the most

preferable method for introducing CHRI is to enter into a closed session which limits

participation by the public at large. States and local agencies should be able to

reasonably demonstrate how the prerequisite criteria are being met for audit purposes.

Additional Considerations

Although not formal categories of assessment, the following considerations are applied to the

assessment of requirements for dissemination of CHRI.

General

States need to maintain visibility on the full spectrum of primary agencies to which they

disseminate CHRI, as well as the specific purposes/authorities for which those primary

agencies receive CHRI. This is especially significant given the requirements for states to

execute agency user agreements and establish formal noncriminal justice audit programs

in accordance with the CJIS Security Policy.

Dissemination of CHRI is broader in concept than the simple act of physically or

electronically sending CHRI to a recipient. The concept of dissemination also applies to

making CHRI available to recipients through physical or electronic access. The

overarching requirements associated with dissemination of CHRI apply regardless of

whether CHRI is “pushed” to recipients or “pulled” by recipients since the end result is

the same.

Notifications

The definition of CHRI includes information that confirms the existence or nonexistence

of CHRI. This includes applicant status information, which is either directly attributed to

or predominately based on a national FBI check, when no authority or inherent need

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exists for the release of such information. However, if an inherent need does exists to

advise a particular entity not otherwise authorized relevant to the federal statutory

authority being leveraged for the national criminal history check, then it is acceptable to

notify the entity of the outcome of applicant fitness determinations. Entities to which an

applicant is seeking employment or licensing may receive status notifications which

indicate the positive or negative outcome of fitness determinations. For example, a

private day care center is not an authorized recipient of CHRI received pursuant to Public

Law 92-544, but may be eligible to receive a status notification regarding an applicant

who is seeking employment at the day care center (this assumes of course the approved

state statue covers the employment type). States should be able to demonstrate the

inherent need for which a particular entity is designated to receive status notifications.

Status notifications must not contain CHRI to include confirming the existence or nonexistence of CHRI. Generic “pass/fail” language must be used to the greatest extent

possible, with the understanding that a reasonable balance must exist between the need to

notify a potential employer and not indirectly confirming the existence or non-existence

of CHRI. In addition, notification language should not directly reference that a national

FBI check was conducted.

Subject of the Record.

Agencies may disseminate fingerprint-based CHRI obtained for noncriminal justice

purposes to the subject of the record. It is important to note that agencies are under no

direct obligation to provide CHRI to the subject, and dissemination of CHRI by local

agencies to the subject may be limited at the state’s discretion. As a best business

practice, agencies that disseminate CHRI to the subject of the record should verify the

subject’s identity prior to dissemination and document each occurrence. Also, in order to

limit potential risks associated with a subject’s subsequent use of a criminal history

record, agencies may wish to consider marking the record in some manner to distinguish

it as not an original copy.

CHRI may not be disseminated to spouses or other household or family members, even at

the subject’s request. Further, CHRI may not be disseminated to other parties such as

potential employers on behalf of the subject. However, although the preference is to

disseminate directly to the subject of the record, a subject may request that their record be

accessed by an attorney acting on the subject’s behalf. This scenario could potentially be

encountered when an applicant challenges the outcome of an agency’s fitness

determination as part of a formal appeal process.

Residual Access

Other authorized entities also include agencies which require residual access based on

oversight authority and responsibility, such as the review of case files by an inspector

general’s office or regulatory auditors from outside the receiving organization. Such

access should be limited to only the minimum level necessary to accomplish oversight

responsibilities, and controls should be established to reasonably prevent unauthorized

disclosure of CHRI.

In limited circumstances, government agencies may also be related for the purpose of

simply serving as a pass-through for fingerprints and receipt of CHRI. This typically

occurs in situations when a criminal justice agency, such as a police department,

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performs this specific function on behalf of an authorized recipient. The premise is that

“access” to CHRI (view or make use of) is limited to such an extent to essentially

consider it negligible for the purposes of formally categorizing it as access.

Purpose for Disclosure of CHRI

The Privacy Act of 1974 requires that the FBI’s CJIS Division keep an accurate accounting of

the purpose of each disclosure of a criminal history record and the recipient of that record. (Title

5, U.S.C., Section 552a (c)(1)(A); III/NFF Operational and Technical Manual, Chapter 3,

Section 2.1)

The NGI audit assesses three categories of requirements for the purpose for disclosure of CHRI:

(1) Reason Fingerprinted Field, (2) III Purpose Codes, and (3) Reason for Request.

Reason Fingerprinted Field

All fingerprint-based applicant submissions must include in the reason fingerprinted field an

accurate representation of the purpose and/or authority for which the CHRI is to be used.

III Purpose Codes

All name-based III inquiry and record request messages must include the correct purpose code

for which the CHRI is to be used.

Reason for Request

All users are required to provide the reason for all name-based and fingerprint-based III

transactions upon request by CJIS systems managers, administrators, and representatives. While

the purpose code and reason fingerprinted field provide some lead information, they only provide

a minimal audit trail. Requiring the specific reason for all III inquiries assists the FBI in

ensuring III transactions are conducted for authorized purposes and purpose codes and RFPs are

being correctly used. There is also an obligation to ensure requests for CHRI are being

conducted for only authorized purposes prior to the submission of the request to the FBI.

Submitting entities (e.g., state repositories) are ultimately responsible for ensuring these

requirements are met throughout their applicable jurisdictions and should develop the policies,

procedures, training, and controls necessary to ensure compliance. While submitting entities

should be in a position to indirectly provide or otherwise facilitate providing specific reasons for

requests for CHRI during FBI audits, typically local agencies and/or organizational

subcomponents that receive and directly use CHRI to adjudicate applications are in the best

position to provide specific validating information regarding individual applicants.

Agency identifiers for receipt of CHRI

The inability of an agency to provide a specific reason may be the indirect result of other

compliance issues. If an agency receives CHRI for an individual that it has no

knowledge of, then there may actually be a dissemination issue. For example, if a state

uses a livescan vendor who makes an inaccurate selection of an agency’s Originating

Agency Identifier (ORI) or other similar identifier, then the state may send the results to

the wrong agency. Unlike the agency that is legitimately waiting for the CHRI, the

receiving agency has no knowledge of the applicant and is not able to provide a reason

for the submission when asked to do so. As a best business practice, when an agency

receives CHRI on an individual that is unknown to the agency, it should inform the state

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repository. This practice allows the state repository the opportunity to find out what went

wrong with the submission and to ensure that the correct agency is not waiting any longer

than necessary for the results of the submission. Submitting entities should also establish

effective policies, procedures, and other controls necessary to minimize the risk of

inaccuracies with fingerprint submissions that result in the wrong agency receiving

CHRI.

Independent application, fingerprinting, and adjudication processes

In a traditional process model, a single agency might be responsible for receiving an

individual’s application, fingerprinting the applicant, and adjudicating the results of the

background check. However, variations on this model have been implemented by

agencies, whereby processes associated with receiving an application, obtaining

fingerprints, and adjudicating results are independent or “split” from one another and/or

performed by a separate entity. These variations may result in applicants being

fingerprinted prior to submitting an application. The receipt of fingerprints prior to the

application may cause an agency’s inability to reasonably assure that the CHRI was for a

legitimate purposes and/or the agency may have no knowledge of the applicant. Separate

application, fingerprinting, and adjudication processes do not necessarily cause a

compliance issue, but oversight agencies must provide sufficient management control to

ensure agencies within their jurisdictions that implement such processes have adequate

visibility and controls in place to reasonably reduce the risk of unauthorized requests for

CHRI and to be able to provide a specific reason for the CHRI request.

Documentation of reason for request

Although agencies must be able to provide CJIS Systems managers, administrators, and

representatives some level of specificity about the requests for CHRI in order for them to

be “known,” there is no direct requirement for an agency to maintain “case files” or other

documents in order to support requests for CHRI. In order to meet the requirements for

providing a specific reason for requests for CHRI, agencies must have a reasonable level

of knowledge of the subject and the specific reason for requesting CHRI for that subject

and be able to provide sufficient supporting information, regardless of format. While this

is typically accomplished by providing a copy of an application corresponding to a

request for CHRI, there are other means by which agencies are able to meet this

requirement. A few examples of items that may be used to provide supporting

information include: information contained in a personnel database or other information

system; copies of online registrations; e-mails showing the purpose or the applicant’s

position; and supporting statements from applicable officials.

Applicant Notification

Authorized governmental and non-governmental agencies/officials that conduct a national

fingerprint-based criminal history record check on an applicant for a noncriminal justice purpose

(such as employment or a license, immigration or naturalization matter, security clearance, or

adoption) are obligated to ensure the applicant is provided certain notices and other information

and that the results of the check are handled in a manner that protects the applicant’s privacy.

All notices must be provided in writing. These obligations are pursuant to the Privacy Act of

1974, Title 5, U.S.C., Section 552a, and Title 28, CFR, Section 50.12, among other authorities.

Primary references for these requirements include:

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 Title 5, U.S.C., Section 552a (e)(3)

 Title 28, CFR, Section 50.12

 Compact Council Meeting, November 2019, Topic 4, Privacy Notice Fundamentals

 Compact Council Brochure, Agency Privacy Requirements for Noncriminal Justice

Applicants

The NGI audit assesses two categories of requirements for applicant notification: (1) FBI

Privacy Act Statement and (2) FBI Record Access and Amendment.

FBI Privacy Act Statement

The Privacy Act of 1974 (Title 5, U.S.C., Section 552a) was enacted to balance the government’s

need to maintain information about individuals with the right of individuals to be protected from

unwarranted invasions of privacy. The Privacy Act regulates the government’s collection,

maintenance, use, and disclosure of records about individuals. It applies to all federal agencies,

including the FBI, and it applies to all systems of records maintained by those agencies,

including the NGI system.

Certain parts of the Privacy Act are especially relevant to the NGI system, the National Crime

Prevention and Privacy Compact Council (Council), and noncriminal justice background checks.

Subsection (e)(3) of the Privacy Act provides the basis for the notice requirement when

noncriminal justice fingerprints are collected for submission to the NGI system. The text of

(e)(3) is as follows:

(e) Each agency that maintains a system of records shall-

(3) inform each individual whom it asks to supply information, on the form which it uses to

collect the information or on a separate form that can be retained by the individual-

(A) the authority (whether granted by statute, or by executive order of the President) which

authorizes the solicitation of the information and whether disclosure of such information is

mandatory or voluntary;

(B) the principal purpose or purposes for which the information is intended to be used;

(C) the routine uses which may be made of the information, as published pursuant to paragraph

(4)(D) of this subsection; and

(D) the effects on him, if any, of not providing all or any part of the requested information.

In order to comply with this section of the Privacy Act, the FBI requires that agencies must use

the Privacy Act statement presented to, and approved by, the Council in 2013. This statement

has been approved by the Office of Management and Budget (OMB) and is printed on the

FD-258 fingerprint cards. This notice includes all of the required information, such as the

authority, the principle purpose, and the routine uses. The Privacy Act statement is as follows:

Authority: The FBI’s acquisition, preservation, and exchange of fingerprints and associated

information is generally authorized under 28 U.S.C. 534. Depending on the nature of your

application, supplemental authorities include Federal statutes, State statutes pursuant to Pub. L.

92-544, Presidential Executive Orders, and federal regulations. Providing your fingerprints and

associated information is voluntary; however, failure to do so may affect completion or approval

of your application.

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Principal Purpose: Certain determinations, such as employment, licensing, and security

clearances, may be predicated on fingerprint-based background checks. Your fingerprints and

associated information/biometrics may be provided to the employing, investigating, or otherwise

responsible agency, and/or the FBI for the purpose of comparing your fingerprints to other

fingerprints in the FBI’s Next Generation Identification (NGI) system or its successor systems

(including civil, criminal, and latent fingerprint repositories) or other available records of the

employing, investigating, or otherwise responsible agency. The FBI may retain your fingerprints

and associated information/biometrics in NGI after the completion of this application and, while

retained, your fingerprints may continue to be compared against other fingerprints submitted to

or retained by NGI.

Routine Uses: During the processing of this application and for as long thereafter as your

fingerprints and associated information/biometrics are retained in NGI, your information may be

disclosed pursuant to your consent, and may be disclosed without your consent as permitted by

the Privacy Act of 1974 and all applicable Routine Uses as may be published at any time in the

Federal Register, including the Routine Uses for the NGI system and the FBI’s Blanket Routine

Uses. Routine Uses include, but are not limited to, disclosures to: employing, governmental or

authorized non-governmental agencies responsible for employment, contracting, licensing,

security clearances, and other suitability determinations; local, state, tribal or federal law

enforcement agencies; criminal justice agencies; and agencies responsible for national security

or public safety.

The requirement for a Privacy Act statement for the submission of noncriminal justice

fingerprints is not new; however, it has become of greater importance due to the retention of

such fingerprints in the NGI system and the Rap Back service. Because a right, benefit, or

privilege is being granted based on the information collected, it is essential that the individual

knows that the submission of his or her information is voluntary and knows what will happen

with the information once it is submitted. The OMB, the agency that promulgates Privacy Act

guidance and directives for the federal government, has opined that implicit in subsection (e)(3)

is the idea of “informed consent”, meaning that the individual should be provided with sufficient

information to make an informed decision on whether to provide his information to the

government.

Contributors of noncriminal justice fingerprints to the NGI system have inquired as to what

constitutes a sufficient or adequate Privacy Act statement. The FBI requires that agencies use

the current (i.e., 2013 or later) FBI Privacy Act statement, with additional language as necessary

for state or federal agency purposes. If the agency does not use the exact language of the FBI

Privacy Act statement, it must use language that is substantively similar to the FBI language. At

a minimum, the language must address the submission of the fingerprints and associated

information to the NGI system; the searching of the fingerprints against the civil, criminal, and

latent repositories; and the continual comparison of the fingerprints to other fingerprints

submitted to or retained by the NGI system.

Contributors of noncriminal justice fingerprints to the NGI system have requested clarification

on best practices for providing the Privacy Act statement and how to effectively document those

practices for auditing purposes. Since the Privacy Act was passed decades before our current

electronic systems, it is important to comply with the statute but to also accommodate modern

technology. In its Circular A-108, “Federal Agency Responsibilities for Review, Reporting, and

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Publication Under the Privacy Act”, OMB stated that a Privacy Act statement is necessary

“regardless of whether information is collected on a paper or electronic form, on a website, on a

mobile application, over the telephone, or through some other medium”.

In past guidance to the Council, the FBI has advised that the Privacy Act statement must be

provided in writing in order to comply with the statute, and that the notice may be provided in

hard copy or in electronic format. For example, the notice may be provided on the hard-copy

fingerprint card, on a form included with an application package, via an electronic notice on a

live scan machine, or an electronic notice that must be viewed by the applicant before proceeding

with the application. The agency must demonstrate that each individual received the Privacy Act

statement. The FBI requires that the contributors have a verifiable process in place to ensure that

all individuals have received the requisite Privacy Act statement. Simply providing a general

notice, such as a poster on a wall or a notice on a website, will not be sufficient. The Privacy Act

statement should be provided before or at the time of collection of the fingerprints in order to

ensure informed consent and a copy should be provided to the individual if he or she requests it.

Contributors also have inquired as to how long they should maintain proof of having provided

the Privacy Act statement to individuals. The FBI recommends that each agency follow its own

record retention rules; however, the contributor will need to document the verifiable process to

the CJIS Audit Unit when requested and for participation in Rap Back.

In the Spring of 2017, the “Noncriminal Justice Applicant’s Privacy Rights” and “Agency

Requirements for Noncriminal Justice Applicants” brochures were modified to include an

“acknowledgement” on the part of the individual receiving the Privacy Act statement. Although

it would be a good practice for the individual to acknowledge receipt of the Privacy Act

statement (e.g., the applicant checks a box on the live scan screen to confirm receipt of the

notice), there is no requirement for the relevant agency to require or maintain such

acknowledgements. Individual acknowledgments would certainly assist with documenting

Privacy Act compliance and informed consent, but the statute requires that agencies provide the

individual notice, not that the individual acknowledges receipt of that notice.

FBI Record Access and Amendment (28 CFR 50.12)

Subsection (d) of the Privacy Act contains the access and amendment provisions that require

each federal agency that maintains a system of records to, upon request, permit the individual to

gain access to his record or any information pertaining to him in the system and review the

record and have a copy made. The Privacy Act also has procedures for an individual to request

correction of his record if he believes it is not accurate, timely, relevant, or complete, and

provides procedures if his request for correction is denied.

For access and amendment of criminal history records, the Department of Justice issued specific

regulations found at 28 CFR 16.30-16.34 that require the individual to submit fingerprints, an

application with certain biographic information, and a fee. If seeking a change, update, or

correction to his or her record, the individual is generally directed to the agency that contributed

the information to the FBI. This process is known as the “Departmental Order” process and has

been briefed to the Council for many years. The “Departmental Order” process whereby an

individual requests a copy of his or her criminal history record is simply the specific means by

which the Privacy Act rights of access and amendment are implemented for criminal history

records.

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Another federal regulation, 28 CFR 50.12, requires that applicants receive notice that their

fingerprints will be searched in the FBI’s system and must be advised of their rights to seek a

change, correction, or updating of their records pursuant to 28 CFR 16.34. The relevant text of

28 C.F.R. 50.12 is as follows:

Officials at the governmental institutions and other entities authorized to submit fingerprints and

receive FBI identification records under this authority must notify the individuals fingerprinted

that the fingerprints will be used to check the criminal history records of the FBI. The officials

making the determination of suitability for licensing or employment shall provide the applicants

the opportunity to complete, or challenge the accuracy of the information contained in the FBI

identification record. These officials also must advise the applicants that procedures for

obtaining a change, correction, or updating of an FBI identification record are set forth in 28

CFR 16.34. Officials making such determinations should not deny the license or employment

based on information in the record until the applicant has been afforded a reasonable time to

correct or complete the record, or has declined to do so. A statement incorporating these useand-challenge requirements will be placed on all records disseminated under this program. This

policy is intended to ensure that all relevant criminal record information is made available to

provide for the public safety and, further, to protect the interests of the prospective

employee/licensee who may be affected by the information or lack of information in an

identification record.

If the applicant receives the current Privacy Act statement, the notice requirement of 28 CFR

50.12 regarding searching of the fingerprints to check the criminal history records of the FBI has

been met. However, the agency also must be certain to provide written notice to the applicant

regarding the procedures for accessing and amending his or her criminal history record. All

applicants must be provided with such notice, regardless of whether the applicant, in fact, has

any criminal history record information in NGI. The FBI recommends that agencies provide

both the Privacy Act statement and the 28 CFR 50.12 notice at the same time and/or on the same

document if possible, to ensure that the applicant receives all required notices.

In addition to the notice requirements of 28 CFR 50.12, the regulation requires that applicants

must be afforded the opportunity to correct or complete criminal history records. This

opportunity must be afforded whether the criminal history is actually used to disqualify the

applicant or not. The CJIS Audit Unit ensures that agencies have a verifiable process in place to

comply with this requirement.

28 CFR 50.12 states that applicants should not be denied employment or licensing based on

information in the criminal history record until they have been afforded a reasonable time to

correct or complete the record, or declined to do so. At Council meetings in 2011, the question

of what constituted a “reasonable” time was discussed and the Council declined to define the

term. The FBI does not consider this part of 28 CFR 50.12 to be a requirement because it states

that officials “should” (rather than “must” or “shall”) not deny employment or licensing. While

it would be a best practice to have up-to-date and accurate criminal history information before

making employment decisions, the FBI recognizes that many other considerations and

limitations affect the hiring/licensing decisions.

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Additional Considerations

The FBI recommends that agencies consult the “Noncriminal Justice Applicant’s Privacy

Rights” and “Agency Requirements for Noncriminal Justice Applicants” brochures to ensure that

all of the requirements pursuant to the Privacy Act and 28 CFR 50.12 are being met.

The FBI has no objection to officials providing a copy of the applicant’s FBI criminal history

record to the applicant for review and possible challenge when the record was obtained based on

positive fingerprint identification. If agency policy permits, this courtesy will save the applicant

the time and additional FBI fee to obtain his/her record directly from the FBI by following the

procedures found at 28 CFR 16.30 through 16.34. It will also allow the officials to make a more

timely determination of the applicant’s suitability.

Each agency should establish and document the process/procedures it utilizes for how/when it

gives the applicant the FBI Privacy Act statement, the 28 CFR 50.12 notice, and the opportunity

to correct his/her record. Such documentation will assist State and/or FBI auditors during

periodic compliance reviews on use of FBI criminal history records for noncriminal justice

purposes.

Noncriminal Justice Agency Audits

Each CJIS Systems Agency, in coordination with the State Identification Bureau, shall establish

a process to periodically audit all noncriminal justice agencies, with access to Criminal Justice

Information, in order to ensure compliance with applicable statutes, regulations and policies.

(CJIS Security Policy, Section 5.11.2)

User Fee

Agencies must ensure fingerprint-based requests for CHRI are properly submitted in order to

ensure the appropriate application of user fees. Pursuant to Public Law 101-515, the FBI may

establish and collect fees to process fingerprint identification records and name checks for

noncriminal justice, non-law enforcement employment and licensing purposes.

The NGI audit assesses two categories of requirements for user fee: (1) Criminal Justice and (2)

Volunteer.

Criminal Justice (No-fee)

Processing of fingerprint submissions for screening criminal justice agency employees or

applicants for employment (sworn and non-sworn) are at no cost inasmuch as criminal justice

employment is considered an administration of criminal justice function.

(Title 28, CFR, Section 20.33 (a)(1))

In addition, processing of fingerprint submissions for screening those under contract with

criminal justice agencies are at no cost under the following circumstances:

 The contractor is providing services for the administration of criminal justice.

 The contractor is performing services unrelated to the administration of criminal justice,

but has unsupervised access to the facility (criminal justice agency site security).

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However, fingerprint submissions for screening employees of contractors to whom the entire

administration of criminal justice functions have been outsourced, such as private prisons and

emergency dispatch centers, are subject to the user fee.

(Criminal Justice Contract Employee Fingerprint Submission Summary Sheet, September 2,

2003 and CJIS Information Letter 07-1, January 8, 2007)

It should be noted that the definition of “administration of criminal justice” appearing at Title 28,

CFR, Section 20.3 (b) includes “Detection, apprehension, detention, pretrial release, post-trail

release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons

or criminal offenders.” However, it is recognized that there are other services which must be

performed in support of these nine identified functions and hence, would also be considered an

administration of criminal justice function. For example, personnel who transport, feed, provide

medical (including psychiatric) care, teach and otherwise engage in the rehabilitative process

also perform an administration of criminal justice function, although their functions are only

implicitly contained within the regulatory definition.

Volunteer (Reduced-fee)

In the case of a background check conducted with fingerprints on a person who volunteers with a

qualified entity, the fees collected by the FBI may not exceed eighteen dollars, or the actual cost,

whichever is less. The Type of Search Requested field for applicable fingerprint submission

transaction types must be set to a value of “V” to ensure proper processing.

(Title 34, U.S.C., Section 40102 (e); Electronic Biometric Transmission Specification, version

10.0.9, Appendix C, page C-40)

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Abbreviation or

Acronym Term

Adam Walsh Act Adam Walsh Child Protection and Safety Act

CFR Code of Federal Regulations

CHRI Criminal History Record Information

CJIS Criminal Justice Information Services

Compact National Crime Prevention and Privacy Compact

Serve America Act Edward M. Kennedy Serve America Act

FBI Federal Bureau of Investigation

III Interstate Identification Index

NCPA/VCA National Child Protection Act/Volunteers for Children Act

NFF National Fingerprint File

NGI Next Generation Identification

ORI Originating Agency Identifier

U.S.C. United States Code

VECHS Volunteer and Employee Criminal History System

WAN Wide Area Network

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