NY Exec L § 850 (2021)
2021 New York Laws EXC - Executive Article 38 - National Crime Prevention and Privacy Compact 850 - Enactment of Compact.

§ 850. Enactment of compact. The national crime prevention and privacy compact  is  hereby  enacted  into  law  and entered into with all other jurisdictions legally joining  therein  in  the  form  substantially  as follows:   The Contracting Parties agree to the following:               NATIONAL CRIME PREVENTION AND PRIVACY COMPACT ARTICLE I.    Definitions. ARTICLE II.   Purposes. ARTICLE III.  Responsibilities of compact parties. ARTICLE IV.   Authorized record disclosures. ARTICLE V.    Record request procedures. ARTICLE VI.   Establishment of compact council. ARTICLE VII.  Ratification of compact. ARTICLE VIII. Miscellaneous provisions. ARTICLE IX.   Renunciation. ARTICLE X.    Severability. ARTICLE XI.   Adjudication of disputes.                                  OVERVIEW  (a)  In  general,  this  compact  organizes  an electronic information sharing system among the federal government and the states  to  exchange criminal  history records for noncriminal justice purposes authorized by federal or  state  law,  such  as  background  checks  for  governmental licensing and employment.  (b) Under this compact, the FBI and the party states agree to maintain detailed   databases  of  their  respective  criminal  history  records, including arrests and dispositions, and to make them  available  to  the federal  government and to party states for authorized purposes. The FBI shall also manage the federal data facilities that provide a significant part of the infrastructure for the system.                           ARTICLE I--DEFINITIONS    As used in this compact:  (a) "Attorney general"  means  the  attorney  general  of  the  United States.  (b) "Compact officer" means:   1.  with  respect to the federal government, an official so designated by the director of the FBI; and   2. with respect to a party  state,  the  chief  administrator  of  the state's  criminal  history  record repository or a designee of the chief administrator who is a regular full-time employee of the repository.  (c) "Council" means the compact council established under article VI.  (d) "Criminal history records":   1.  means  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, or release; and   2. does not include identification  information  such  as  fingerprint records  if  such  information  does  not  indicate  involvement  of the individual with the criminal justice system.  (e) "Criminal  history  record  repository"  means  the  state  agency designated  by  the  governor or other appropriate executive official or the  legislature  of  a  state  to  perform  centralized   recordkeeping functions for criminal history records and services in the state.  (f)  "Criminal justice" includes activities relating to the detection, apprehension,   detention,   pretrial   release,   post-trial   release, prosecution,  adjudication,  correctional supervision, or rehabilitation of accused persons or criminal offenders. The administration of criminal justice  includes criminal identification activities and the collection, storage, and dissemination of criminal history records.  (g) "Criminal justice agency":   1. means:   a. courts; and   b. a governmental agency or any subunit thereof that:  (i) performs the administration of  criminal  justice  pursuant  to  a statute or executive order; and  (ii)  allocates  a  substantial  part  of  its  annual  budget  to the administration of criminal justice; and   2. includes federal and state inspectors general offices.  (h) "Criminal justice services" means services provided by the FBI  to criminal justice agencies in response to a request for information about a  particular  individual  or  as  an  update  to information previously provided for criminal justice purposes.  (i) "Criterion offense" means any felony or  misdemeanor  offense  not included  on  the  list of nonserious offenses published periodically by the FBI.  (j) "Direct access" means access to the national identification  index by  computer  terminal  or  other  automated  means  not  requiring  the assistance of or intervention by any other party or agency.  (k) "Executive order" means an order of the president  of  the  United States  or  the chief executive officer of a state that has the force of law and that is promulgated in accordance with applicable law.  (l) "FBI" means the Federal Bureau of Investigation.  (m) "Interstate identification index system" or "III system":   1. means the cooperative federal-state  system  for  the  exchange  of criminal history records; and   2.   includes   the   national   identification  index,  the  national fingerprint file and, to the  extent  of  their  participation  in  such system,  the  criminal history record repositories of the states and the FBI.  (n) "National fingerprint file" means a database of  fingerprints,  or other uniquely personal identifying information, relating to an arrested or  charged  individual  maintained  by  the  FBI  to  provide  positive identification of record subjects indexed in the III system.  (o) "National identification index" means an index maintained  by  the FBI  consisting  of  names,  identifying  numbers, and other descriptive information relating to record subjects about whom  there  are  criminal history records in the III system.  (p) "National indices" means the national identification index and the national fingerprint file.  (q) "Nonparty state" means a state that has not ratified this compact.  (r)  "Noncriminal  justice  purposes"  means  uses of criminal history records for purposes authorized by  federal  or  state  law  other  than purposes  relating  to criminal justice activities, including employment suitability, licensing determinations,  immigration  and  naturalization matters, and national security clearances.  (s) "Party state" means a state that has ratified this compact.  (t)  "Positive  identification"  means  a  determination, based upon a comparison  of  fingerprints  or  other   equally   reliable   biometric identification  techniques,  that  the subject of a record search is the same person as the subject of  a  criminal  history  record  or  records indexed   in  the  III  system.  Identifications  based  solely  upon  a  comparison  of  subjects'  names  or  other   nonunique   identification characteristics   or   numbers,   or  combinations  thereof,  shall  not constitute positive identification.  (u) "Sealed record information" means:   1. with respect to adults, that portion of a record that is:   a. not available for criminal justice uses;   b.  not  supported by fingerprints or other accepted means of positive identification; or   c. subject to restrictions on dissemination  for  noncriminal  justice purposes  pursuant  to  a court order related to a particular subject or pursuant to a federal or state statute that requires action on a sealing petition filed by a particular record subject; and   2. with respect to juveniles, whatever  each  state  determines  is  a sealed record under its own law and procedure.  (v)  "State"  means  any state, territory, or possession of the United States, the district of Columbia, and the commonwealth of Puerto Rico.                            ARTICLE II--PURPOSES    The purposes of this compact are to:  (a) provide a legal framework for the establishment of  a  cooperative federal-state  system  for  the interstate and federal-state exchange of criminal history records for noncriminal justice uses;  (b) require the FBI to permit use of the national identification index and the national fingerprint file by each party state, and  to  provide, in  a  timely  fashion,  federal  and  state criminal history records to requesting states, in accordance with the terms of this compact and with rules, procedures,  and  standards  established  by  the  council  under article VI;  (c)  require  party  states to provide information and records for the national identification index and the national fingerprint file  and  to provide  criminal  history  records,  in  a  timely fashion, to criminal history record repositories of other states and the  federal  government for  noncriminal  justice purposes, in accordance with the terms of this compact and with rules, procedures, and  standards  established  by  the council under article VI;  (d)  provide  for the establishment of a council to monitor III system operations  and  to  prescribe  system  rules  and  procedures  for  the effective and proper operation of the III system for noncriminal justice purposes; and  (e)  require  the  FBI  and  each  party state to adhere to III system standards concerning  record  dissemination  and  use,  response  times, system  security,  data  quality,  and other duly established standards, including those that enhance the accuracy and privacy of such records.              ARTICLE III--RESPONSIBILITIES OF COMPACT PARTIES  (a) The director of the FBI shall:   1. appoint an FBI compact officer who shall:   a. administer this compact within the department of justice and  among federal agencies and other agencies and organizations that submit search requests to the FBI pursuant to subdivision (c) of article V;   b. ensure that compact provisions and rules, procedures, and standards prescribed  by  the  council  under  article VI are complied with by the department of justice and the federal agencies and  other  agencies  and organizations  referred  to  in  subparagraph a of paragraph one of this subdivision; and    c. regulate the use of records received by means  of  the  III  system from  party states when such records are supplied by the FBI directly to other federal agencies;   2.  provide  to  federal agencies and to state criminal history record repositories, criminal history records maintained in  its  database  for the noncriminal justice purposes described in article IV, including:   a. information from nonparty states; and   b.  information  from  party  states  that  is  available from the FBI through the III system, but  is  not  available  from  the  party  state through the III system;   c.  provide  a  telecommunications  network  and  maintain centralized facilities for  the  exchange  of  criminal  history  records  for  both criminal justice purposes and the noncriminal justice purposes described in article IV, and ensure that the exchange of such records for criminal justice  purposes  has  priority  over  exchange for noncriminal justice purposes; and   d. modify or enter into user agreements with nonparty  state  criminal history  record repositories to require them to establish record request procedures conforming to those prescribed in article V.  (b) Each party state shall:   1. appoint a compact officer who shall:   a. administer this compact within that state;   b. ensure that compact provisions and rules, procedures, and standards established by the council under article VI are  complied  with  in  the state; and   c.  regulate  the in-state use of records received by means of the III system from the FBI or from other party states;   2. establish and maintain a criminal history record repository,  which shall provide:   a.  information  and records for the national identification index and the national fingerprint file; and   b.  the  state's  III  system-indexed  criminal  history  records  for noncriminal justice purposes described in article IV; and   c. participate in the national fingerprint file; and   d. provide and maintain telecommunications links and related equipment necessary to support the services set forth in this compact.  (c)  Compliance  with  III  system  standards.  In  carrying out their responsibilities under this compact, the FBI and each party state  shall comply with III system rules, procedures, and standards duly established by  the council concerning record dissemination and use, response times, data quality, system security, accuracy, privacy protection,  and  other aspects of III system operation.  (d)  1.  Use  of  the  III  system  for  noncriminal  justice purposes authorized in this compact shall be managed so as not  to  diminish  the level of services provided in support of criminal justice purposes.   2.  Administration of compact provisions shall not reduce the level of service  available  to  authorized  noncriminal  justice  users  on  the effective date of this compact.                  ARTICLE IV--AUTHORIZED RECORD DISCLOSURES  (a)   State  criminal  history  record  repositories.  To  the  extent authorized by section five hundred fifty-two-a  of  title  five  of  the United  States  code, (commonly known as the "Privacy Act of 1974"), the FBI shall provide on request criminal history records (excluding  sealed records)  to  state criminal history record repositories for noncriminal justice purposes allowed by federal statute, federal executive order, or  a state statute that has been approved by the attorney general and  that authorizes national indices checks.  (b)  The  FBI,  to  the  extent  authorized  by  section  five hundred fifty-two-a of title five of the United States code, (commonly known  as the   "Privacy   Act  of  1974"),  and  state  criminal  history  record repositories shall provide criminal history  records  (excluding  sealed records)   to  criminal  justice  agencies  and  other  governmental  or nongovernmental agencies for noncriminal  justice  purposes  allowed  by federal  statute,  federal  executive order, or a state statute that has been approved by the attorney general, that authorizes national  indices checks.  (c)  Any  record  obtained under this compact may be used only for the official purposes for which  the  record  was  requested.  Each  compact officer  shall  establish  procedures, consistent with this compact, and with rules, procedures, and standards established by the  council  under article  VI,  which procedures shall protect the accuracy and privacy of the records, and shall:   1. ensure that records obtained under this compact are  used  only  by authorized officials for authorized purposes;   2.  require  that  subsequent  record  checks  are requested to obtain current information whenever a new need arises; and   3. ensure that record entries that may  not  legally  be  used  for  a particular  noncriminal  justice  purpose  are deleted from the response and, if no information authorized for release  remains,  an  appropriate "no record" response is communicated to the requesting official.                    ARTICLE V--RECORD REQUEST PROCEDURES  (a)   Subject   fingerprints  or  other  approved  forms  of  positive identification shall be submitted with all requests for criminal history record checks for noncriminal justice purposes.  (b) Each request for a criminal history  record  check  utilizing  the national  indices  made  under  any  approved  state  statute  shall  be submitted through that state's criminal  history  record  repository.  A state  criminal  history  record  repository shall process an interstate request for noncriminal justice purposes through  the  national  indices only  if  such  request  is  transmitted  through another state criminal history record repository or the FBI.  (c) Each request for criminal  history  record  checks  utilizing  the national indices made under federal authority shall be submitted through the  FBI or, if the state criminal history record repository consents to process fingerprint submissions, through  the  criminal  history  record repository  in the state in which such request originated. Direct access to the national identification index by entities other than the FBI  and state  criminal  history records repositories shall not be permitted for noncriminal justice purposes.  (d) A state criminal history record repository or the FBI:   1. may charge a fee, in accordance with applicable law, for handling a request  involving  fingerprint  processing  for   noncriminal   justice purposes; and   2.  may  not  charge  a  fee for providing criminal history records in response to an electronic request for a record that does not  involve  a request to process fingerprints.  (e) 1. If a state criminal history record repository cannot positively identify  the  subject  of a record request made for noncriminal justice purposes, the request, together  with  fingerprints  or  other  approved identifying  information,  shall be forwarded to the FBI for a search of the national indices.    2. If, with respect to a request forwarded by a state criminal history record repository under paragraph  one  of  this  subdivision,  the  FBI positively  identifies the subject as having a III system-indexed record or records:   a.  the  FBI  shall  so  advise  the  state  criminal  history  record repository; and   b. the state criminal history record repository shall be  entitled  to obtain  the  additional criminal history record information from the FBI or other state criminal history record repositories.                ARTICLE VI--ESTABLISHMENT OF COMPACT COUNCIL  (a) 1. In general, there is established a council to be known  as  the "compact  council",  which  shall have the authority to promulgate rules and procedures governing the use  of  the  III  system  for  noncriminal justice  purposes,  not  to  conflict with FBI administration of the III system for criminal justice purposes.   2. The council shall:   a. continue in existence as long as this compact remains in effect;   b. be located, for administrative purposes, within the FBI; and   c. be organized and hold its first  meeting  as  soon  as  practicable after the effective date of this compact.  (b)  The  council  shall  be composed of fifteen members, each of whom shall be appointed by the attorney general, as follows:   1. Nine members, each of whom shall serve a two-year term,  who  shall be selected from among the compact officers of party states based on the recommendation of the compact officers of all party states, except that, in  the absence of the requisite number of compact officers available to serve,  the  chief  administrators  of  the  criminal   history   record repositories of nonparty states shall be eligible to serve on an interim basis.   2. Two at-large members, nominated by the director of the FBI, each of whom shall serve a three-year term, of whom:   a.  one  shall be a representative of the criminal justice agencies of the federal government and may not be an employee of the FBI; and   b. one shall be a representative of the noncriminal  justice  agencies of the federal government.   3.  Two  at-large  members,  nominated by the chairman of the council, once the chairman  is  elected  pursuant  to  subdivision  (c)  of  this article, each of whom shall serve a three-year term, of whom:   a.  one  shall  be a representative of state or local criminal justice agencies; and   b. one shall be a representative of state or local noncriminal justice agencies.   4. One member, who shall  serve  a  three-year  term,  and  who  shall simultaneously  be  a  member  of  the  FBI's  advisory  policy board on criminal justice information services, nominated by  the  membership  of that policy board.   5. One member, nominated by the director of the FBI, who shall serve a three-year term, and who shall be an employee of the FBI.  (c)  1.  In  general,  from  its membership, the council shall elect a chairman and a vice chairman of  the  council,  respectively.  Both  the chairman and vice chairman of the council:   a.  shall  be a compact officer, unless there is no compact officer on the council who is willing to serve, in which case the chairman  may  be an at-large member; and   b.  shall  serve  a  two-year  term  and  may be reelected to only one additional two-year term.    2. The vice chairman of the council shall serve as the chairman of the council in the absence of the chairman.  (d)  1.  In general, the council shall meet at least once each year at the call of the chairman. Each meeting of the council shall be  open  to the public. The council shall provide prior public notice in the federal register  of  each  meeting  of the council, including the matters to be addressed at such meeting.   2. A majority of the council or any committee  of  the  council  shall constitute  a  quorum of the council or of such committee, respectively, for the conduct of business. A lesser number may meet to hold  hearings, take testimony, or conduct any business not requiring a vote.  (e) The council shall make available for public inspection and copying at  the  council office within the FBI, and shall publish in the federal register,  any  rules,  procedures,  or  standards  established  by  the council.  (f)  The  council  may  request  from  the  FBI such reports, studies, statistics, or other information or materials as the council  determines to  be  necessary to enable the council to perform its duties under this compact. The FBI, to the extent authorized  by  law,  may  provide  such assistance or information upon such a request.  (g)  The  chairman  may establish committees as necessary to carry out this compact and may prescribe their membership,  responsibilities,  and duration.                    ARTICLE VII--RATIFICATION OF COMPACT    This  compact shall take effect upon being entered into by two or more states  as  between  those  states  and  the  federal  government.  Upon subsequent  entering  into  this  compact by additional states, it shall become effective among those states and the federal government and  each party state that has previously ratified it. When ratified, this compact shall  have  the  full  force  and  effect  of  law within the ratifying jurisdictions. The form of ratification shall be in accordance with  the laws of the executing state.                   ARTICLE VIII--MISCELLANEOUS PROVISIONS  (a)  Administration  of  this  compact  shall  not  interfere with the management and control of  the  director  of  the  FBI  over  the  FBI's collection  and  dissemination  of  criminal  history  records  and  the advisory function of the FBI's advisory policy board chartered under the federal advisory committee act (5 U.S.C. App.) for  all  purposes  other than noncriminal justice.  (b)  Nothing  in  this  compact  shall  require the FBI to obligate or expend funds beyond those appropriated to the FBI.  (c) Nothing in this compact shall diminish or lessen the  obligations, responsibilities, and authorities of any state, whether a party state or a  nonparty state, or of any criminal history record repository or other subdivision or  component  thereof,  under  the  departments  of  state, justice, and commerce, the judiciary, and related agencies appropriation act, 1973 (Public Law 92-544), or regulations and guidelines promulgated thereunder,  including  the  rules  and  procedures  promulgated  by the council under subdivision (a) of  article  VI,  regarding  the  use  and dissemination of criminal history records and information.                          ARTICLE IX--RENUNCIATION  (a)  In  general,  this  compact  shall  bind  each  party state until renounced by the party state.  (b) Any renunciation of this compact by a party state shall:   1.  be  effected  in the same manner by which the party state ratified this compact; and   2. become effective one hundred eighty days after  written  notice  of renunciation  is  provided  by the party state to each other party state and to the federal government.                           ARTICLE X--SEVERABILITY    The provisions of this compact shall be severable, and if any  phrase, clause,  sentence,  or  provision  of  this  compact  is  declared to be contrary to the constitution of  any  participating  state,  or  to  the constitution  of  the United States, or the applicability thereof to any government,  agency,  person,  or  circumstance  is  held  invalid,  the validity  of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby.  If  a  portion  of  this  compact  is  held  contrary  to  the constitution  of  any  party  state,  all other portions of this compact shall remain in full force and effect as to the remaining  party  states and  in  full force and effect as to the party state affected, as to all other provisions.                    ARTICLE XI--ADJUDICATION OF DISPUTES  (a) The council shall:   1. have initial authority to make determinations with respect  to  any dispute regarding:   a. interpretation of this compact;   b. any rule or standard established by the council pursuant to article VI; and   c. any dispute or controversy between any parties to this compact; and   2. hold a hearing concerning any dispute described in paragraph one of this  subdivision  at  a  regularly scheduled meeting of the council and only render a decision based upon a majority vote of the members of  the council.  Such  decision shall be published pursuant to the requirements of subdivision (e) of article VI.  (b) The FBI shall exercise immediate and necessary action to  preserve the  integrity  of the III system, maintain system policy and standards, protect the accuracy and privacy of  records,  and  to  prevent  abuses, until the council holds a hearing on such matters.  (c) The FBI or a party state may appeal any decision of the council to the  attorney  general,  and thereafter may file suit in the appropriate district  court  of  the  United  States,  which  shall  have   original jurisdiction  of  all cases or controversies arising under this compact. Any suit arising under this compact and initiated in a state court shall be removed to the appropriate district court of the United States in the manner  provided  by  section  fourteen  hundred  forty-six   of   title twenty-eight of the United States code, or other statutory authority.