HP1070, LD 1493, item 1, An Act To Revise the Laws Concerning Criminal History Record Information and Intelligence and Investigative Information

An Act To Revise the Laws Concerning Criminal History Record Information and Intelligence and Investigative Information

Be it enacted by the People of the State of Maine as follows:

PART A

Sec. A-1. 16 MRSA c. 3, sub-c. 8, as amended, is repealed.

Sec. A-2. 16 MRSA c. 7 is enacted to read:

CHAPTER 7

CRIMINAL HISTORY RECORD INFORMATION ACT

§ 701. Short title

This chapter may be known and cited as "the Criminal History Record Information Act."

§ 702. Scope; application

This chapter governs the dissemination of criminal history record information by a Maine criminal justice agency. This chapter establishes 2 distinct categories of criminal history record information and provides for the dissemination of each:

1. Public criminal history record information. Public criminal history record information, the dissemination of which is governed by section 704; and

2. Confidential criminal history record information. Confidential criminal history record information, the dissemination of which is governed by section 705.

§ 703. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Administration of criminal justice. "Administration of criminal justice" means activities relating to the apprehension or summonsing, detention, pretrial release, post-trial release, prosecution, adjudication, sentencing, correctional custody and supervision or rehabilitation of accused persons or convicted criminal offenders. "Administration of criminal justice" includes the collection, storage and dissemination of criminal history record information.

2. Confidential criminal history record information. "Confidential criminal history record information" means criminal history record information of the following types:

A. Unless the person remains a fugitive from justice, summons and arrest information without disposition if an interval of more than one year has elapsed since the date the person was summonsed or arrested and no active prosecution of a criminal charge stemming from the summons or arrest is pending;

B. Information disclosing that the responsible law enforcement agency or officer has elected not to refer a matter to a prosecutor;

C. Information disclosing that the responsible prosecutorial office or prosecutor has elected not to initiate or approve criminal proceedings;

D. Information disclosing that a grand jury has determined that there is insufficient evidence to warrant the return of a formal charge;

E. Information disclosing that a criminal proceeding has been indefinitely postponed or dismissed because the person charged is found by the court to be mentally incompetent to stand trial or to be sentenced;

F. Information disclosing that a criminal charge has been filed, if the filing period is indefinite or for more than one year;

G. Information disclosing that a criminal charge has been dismissed by a court with prejudice or dismissed with finality by a prosecutor other than as part of a plea agreement;

H. Information disclosing that a person has been acquitted of a criminal charge. A verdict or accepted plea of not criminally responsible by reason of insanity, or its equivalent, is not an acquittal of the criminal charge;

I. Information disclosing that a criminal proceeding has terminated in a mistrial with prejudice;

J. Information disclosing that a criminal proceeding has terminated based on lack of subject matter jurisdiction;

K. Information disclosing that a criminal proceeding has been terminated because the court lacked jurisdiction over the defendant; and

L. Information disclosing that a person has been granted a full and free pardon or amnesty.

3. Criminal history record information. "Criminal history record information" means information of record collected by a criminal justice agency or at the direction of a criminal justice agency or kept in the custody of a criminal justice agency that connects a specific, identifiable person, including a juvenile treated by statute as an adult for criminal prosecution purposes, with formal involvement in the criminal justice system either as an accused or as a convicted criminal offender. "Criminal history record information" includes, but is not limited to, identifiable descriptions or notations of: summonses and arrests; detention; bail; formal criminal charges such as complaints, informations and indictments; any disposition stemming from such charges; post-plea or post-adjudication sentencing; involuntary commitment; execution of and completion of any sentencing alternatives imposed; release and discharge from involuntary commitment; any related pretrial and post-trial appeals, collateral attacks and petitions; and petitions for and warrants of pardons, commutations, reprieves and amnesties. "Criminal history record information" does not include: identification information such as fingerprints, palmprints, footprints or photographic records to the extent that the information does not indicate formal involvement of the specific individual in the criminal justice system; information of record of civil proceedings, including traffic infractions and other civil violations; intelligence and investigative record information as defined in section 803; or information of record of juvenile crime proceedings or their equivalent. Specific information regarding a juvenile crime proceeding is not criminal history record information notwithstanding that a juvenile has been bound over and treated as an adult or that by statute specific information regarding a juvenile crime proceeding is usable in a subsequent adult criminal proceeding. "Formal involvement in the criminal justice system either as an accused or as a convicted criminal offender" means being within the jurisdiction of the criminal justice system commencing with arrest, summons or initiation of formal criminal charges and concluding with the completion of every sentencing alternative imposed as punishment or final discharge from an involuntary commitment based upon a finding of not criminally responsible by reason of insanity or its equivalent.

4. Criminal justice agency. "Criminal justice agency" means a federal, state or State of Maine government agency or any subunit of a government agency at any governmental level that performs the administration of criminal justice pursuant to a statute or executive order. "Criminal justice agency" includes federal courts, Maine courts, courts in any other state, the Department of the Attorney General, district attorneys' offices and the equivalent departments or offices in any federal or state jurisdiction. "Criminal justice agency" also includes any equivalent agency at any level of Canadian government and the government of any federally recognized Indian tribe.

5. Disposition. "Disposition" means information of record disclosing that a criminal proceeding has been concluded, although not necessarily finalized, and the specific nature of the concluding event. "Disposition" includes, but is not limited to: an acquittal; a dismissal, with or without prejudice; the filing of a charge by agreement of the parties or by a court; the determination that a defendant is currently a fugitive from justice; a conviction, including the acceptance by a court of a plea of guilty or nolo contendere; a deferred disposition; a proceeding indefinitely continued or dismissed due to a defendant's incompetence; a finding of not criminally responsible by reason of insanity or its equivalent; a mistrial, with or without prejudice; a new trial ordered; an arrest of judgment; a sentence imposition; a resentencing ordered; an execution of and completion of any sentence alternatives imposed, including but not limited to fines, restitution, correctional custody and supervision, and administrative release; a release or discharge from a commitment based upon a finding of not criminally responsible by reason of insanity or its equivalent; the death of the defendant; any related pretrial and post-trial appeals, collateral attacks and petitions; a pardon, commutation, reprieve or amnesty; and extradition. "Disposition" also includes information of record disclosing that the responsible law enforcement agency or officer has elected not to refer a matter to a prosecutor, that the responsible prosecutorial office or prosecutor has elected not to initiate or approve criminal proceedings or that a grand jury has determined that there is insufficient evidence to warrant the return of a formal charge.

6. Dissemination. "Dissemination" means the transmission of information by any means, including but not limited to orally, in writing or electronically, by or to anyone outside the criminal justice agency that maintains the information.

7. Executive order. "Executive order" means an order of the President of the United States or the chief executive of a state that has the force of law and that is published in a manner permitting regular public access.

8. Public criminal history record information. "Public criminal history record information" means criminal history record information that is not confidential criminal history record information, including information recorded pursuant to section 706.

9. State. "State" means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam and American Samoa. "State" also includes the federal government of Canada and any provincial government of Canada and the government of any federally recognized Indian tribe.

10. Statute. "Statute" means an Act of Congress or an act of a state legislature or a provision of the Constitution of the United States or the constitution of a state.

§ 704. Dissemination of public criminal history record information

1. Generally. Public criminal history record information is public for purposes of Title 1, chapter 13. Public criminal history record information may be disseminated by a Maine criminal justice agency to any person or public or private entity for any purpose. Public criminal history record information is public whether it relates to a crime for which a person is currently within the jurisdiction of the criminal justice system or it relates to a crime for which a person is no longer within that jurisdiction. There is no time limitation on dissemination of public criminal history record information.

2. Required inquiry to State Bureau of Identification. A Maine criminal justice agency, other than a court, shall query the Department of Public Safety, State Bureau of Identification before disseminating any public criminal history record information for a noncriminal justice purpose to ensure that the most up-to-date disposition information is being used. "Noncriminal justice purpose" means a purpose other than for the administration of criminal justice or criminal justice agency employment.

§ 705. Dissemination of confidential criminal history record information

1. Generally. A Maine criminal justice agency, whether directly or through any intermediary, may disseminate confidential criminal history record information only to:

A. Other criminal justice agencies for the purpose of the administration of criminal justice and criminal justice agency employment;

B. Any person for any purpose when expressly authorized by a statute, executive order, court rule, court decision or court order containing language specifically referring to confidential criminal history record information or one or more of the types of confidential criminal history record information;

C. Any person with a specific agreement with a criminal justice agency to provide services required for the administration of criminal justice or to conduct investigations determining the employment suitability of prospective law enforcement officers. The agreement must specifically authorize access to data, limit the use of the data to purposes for which given, ensure security and confidentiality of the data consistent with this chapter and provide sanctions for any violations;

D. Any person for the express purpose of research, evaluation or statistical purposes or under an agreement with the criminal justice agency. The agreement must specifically authorize access to confidential criminal history record information, limit the use of the information to research, evaluation or statistical purposes, ensure the confidentiality and security of the information consistent with this chapter and provide sanctions for any violations;

E. Any person who makes a specific inquiry to the criminal justice agency as to whether a named individual was summonsed, arrested or detained or had formal criminal charges initiated on a specific date;

F. The public for the purpose of announcing the fact of a specific disposition that is confidential criminal history record information, other than that described in section 703, subsection 2, paragraph A, within 30 days of the date of occurrence of that disposition or at any point in time if the person to whom the disposition relates specifically authorizes that it be made public; and

G. A public entity for purposes of international travel, such as issuing visas and granting of citizenship.

2. Confirming existence or nonexistence of information. A Maine criminal justice agency may not confirm the existence or nonexistence of confidential criminal history record information to any person or public or private entity that would not be eligible to receive the information itself.

3. Required inquiry to State Bureau of Identification. A Maine criminal justice agency, other than a court, shall query the Department of Public Safety, State Bureau of Identification before disseminating any confidential criminal history record information for a noncriminal justice purpose to ensure that the most up-to-date disposition information is being used. "Noncriminal justice purpose" means a purpose other than for the administration of criminal justice or criminal justice agency use.

§ 706. Public information about persons detained following arrest

1. Requirement of record. A Maine criminal justice agency that maintains a holding facility, as defined in Title 34-A, section 1001, subsection 9, or other facility for pretrial detention shall record the following information concerning each person delivered to it for pretrial detention for any period of time:

A. The identity of the arrested person, including the person's name, year of birth, residence and occupation, if any;

B. The statutory or customary description of the crime or crimes for which the person was arrested including the date and geographic location where the crime is alleged to have occurred;

C. The date, time and place of the arrest; and

D. The circumstances of the arrest including, when applicable, the physical force used in making the arrest, the resistance made to the arrest, what weapons were involved, the arrested person's refusal to submit and the pursuit by the arresting officers.

2. Time and method of recording. A Maine criminal justice agency shall record the information under subsection 1 immediately upon delivery of an arrested person to the criminal justice agency for detention. The criminal justice agency shall record and maintain the information in chronological order and keep the information in a suitable, permanent record. The information required by this section may be combined by a sheriff with the record required by Title 30-A, section 1505.

3. Information public. The information required to be recorded and maintained by this section is public criminal history record information.

§ 707. Unlawful dissemination of confidential criminal history record information

1. Offense. A person is guilty of unlawful dissemination of confidential criminal history record information if the person intentionally disseminates confidential criminal history record information knowing it to be in violation of any of the provisions of this chapter.

2. Classification. Unlawful dissemination of confidential criminal history record information is a Class E crime.

§ 708. Inapplicability of this chapter to criminal history record information contained in certain records

This chapter does not apply to criminal history record information contained in:

1. Posters, announcements, lists. Posters, announcements or lists used for identifying or apprehending fugitives from justice or wanted persons;

2. Records of entry. Records of entry, such as calls for service, formerly known as "police blotters," that are maintained by criminal justice agencies, that are compiled and organized chronologically and that are required by law or long-standing custom to be made public;

3. Records of public judicial proceedings. Records of public judicial proceedings:

A. Retained at and by the District Court, Superior Court or Supreme Judicial Court. Public access to and dissemination of such records for inspection and copying are as provided by rule or administrative order of the Supreme Judicial Court; and

B. From federal courts and courts of other states;

4. Published opinions. Published court or administrative opinions not impounded or otherwise declared confidential;

5. Records of public proceedings. Records of public administrative or legislative proceedings;

6. Records of traffic crimes. Records of traffic crimes maintained by the Secretary of State or by a state department of transportation or motor vehicles or the equivalent thereof for the purposes of regulating the issuance, suspension, revocation or renewal of a driver's, pilot's or other operator's license; and

7. Pardons, commutations, reprieves and amnesties. Petitions for and warrants of pardons, commutations, reprieves and amnesties.

§ 709. Right to access and review

1. Inspection. If a Maine criminal justice agency maintains criminal history record information about a person, the person or the person's attorney may inspect the criminal history record information. A criminal justice agency may prescribe reasonable hours and locations at which the right may be exercised and any additional restrictions, including satisfactory verification of identity by fingerprint comparison, as are reasonably necessary to ensure the security and confidentiality of the criminal history record information and to verify the identity of the person seeking to inspect that information. The criminal justice agency shall supply the person or the person's attorney with a copy of the criminal history record information pertaining to the person on request and payment of a reasonable fee.

2. Review. A person or the person's attorney may request amendment or correction of criminal history record information concerning the person by addressing, either in person or in writing, the request to the criminal justice agency in which the information is maintained. The request must indicate the particular record involved, the nature of the amendment or correction sought and the justification for the amendment or correction.

On receipt of a request, the criminal justice agency shall take necessary steps to determine whether the questioned criminal history record information is accurate and complete. If investigation reveals that the questioned criminal history record information is inaccurate or incomplete, the criminal justice agency shall immediately correct the error or deficiency.

Not later than 15 days, excluding Saturdays, Sundays and legal public holidays, after the receipt of a request, the criminal justice agency shall notify the requesting person in writing either that the criminal justice agency has corrected the error or deficiency or that it refuses to make the requested amendment or correction. The notice of refusal must include the reasons for the refusal, the procedure established by the criminal justice agency for requesting a review by the head of the criminal justice agency of that refusal and the name and business address of that official.

3. Administrative appeal. If there is a request for review, the head of the criminal justice agency shall, not later than 30 days from the date of the request, excluding Saturdays, Sundays and legal public holidays, complete the review and either make the requested amendment or correction or refuse to do so. If the head of the criminal justice agency refuses to make the requested amendment or correction, the head of the criminal justice agency shall permit the requesting person to file with the criminal justice agency a concise statement setting forth the reasons for the disagreement with the refusal. The head of the criminal justice agency shall also notify the person of the provisions for judicial review of the reviewing official's determination under subsection 4.

Disputed criminal history record information disseminated by the criminal justice agency with which the requesting person has filed a statement of disagreement must clearly reflect notice of the dispute after the filing of such a statement. A copy of the statement must be included, along with, if the criminal justice agency determines it appropriate, a copy of a concise statement of the criminal justice agency's reasons for not making the amendment or correction requested.

4. Judicial review. If an administrative appeal brought pursuant to subsection 3 is denied by the head of the criminal justice agency, or the requesting person believes the decision of the head of the criminal justice agency to be otherwise unsatisfactory, the person may, within 30 days of the decision rendered by the head of the criminal justice agency, appeal to the Superior Court in accordance with Title 5, chapter 375, subchapter 7 and the Maine Rules of Civil Procedure, Rule 80C.

5. Notification. When a criminal justice agency has amended or corrected a person's criminal history record information in response to a written request as provided in subsection 2 or a court order, the criminal justice agency shall, within 30 days thereof, advise all prior recipients who have received that information within the year prior to the amendment or correction that the amendment or correction has been made. The criminal justice agency shall also notify the person who is the subject of the amended or corrected criminal history record information of compliance with this subsection and the prior recipients notified.

6. Right of release. The provisions of this chapter do not limit the right of a person to disseminate criminal history record information pertaining to that person to any other person.

§ 710. Application to prior Maine criminal history record information

The provisions of this chapter apply to criminal history record information in existence before July 29, 1976, including that which has been previously expunged under any other provision of Maine law, as well as to criminal history record information in existence on July 29, 1976 and thereafter.

Sec. A-3. 16 MRSA c. 9 is enacted to read:

CHAPTER 9

INTELLIGENCE AND INVESTIGATIVE RECORD INFORMATION ACT

§ 801. Short title

This chapter may be known and cited as "the Intelligence and Investigative Record Information Act."

§ 802. Application

This chapter applies to a record that is or contains intelligence and investigative record information and that is collected by or prepared at the direction of or kept in the custody of any Maine criminal justice agency.

§ 803. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Administration of civil justice. "Administration of civil justice" means activities relating to the anticipation, prevention, detection, monitoring or investigation of known, suspected or possible civil violations and prospective and pending civil actions. It includes the collection, storage and dissemination of intelligence and investigative record information relating to the administration of civil justice. "Administration of civil justice" does not include known, suspected or possible traffic infractions.

2. Administration of criminal justice. "Administration of criminal justice" means activities relating to the anticipation, prevention, detection, monitoring or investigation of known, suspected or possible crimes. It includes the collection, storage and dissemination of intelligence and investigative record information relating to the administration of criminal justice.

3. Administration of juvenile justice. "Administration of juvenile justice" means activities relating to the anticipation, prevention, detection, monitoring or investigation of known, suspected or possible juvenile crimes. "Administration of juvenile justice" includes the collection, storage and dissemination of intelligence and investigative information relating to the administration of juvenile justice.

4. Criminal justice agency. "Criminal justice agency" means a federal, state or State of Maine government agency or any subunit of a government agency at any governmental level that performs the administration of criminal justice pursuant to a statute or executive order. "Criminal justice agency" includes the Department of the Attorney General, district attorneys' offices and the equivalent departments or offices in any federal or state jurisdiction. "Criminal justice agency" also includes any equivalent agency at any level of Canadian government and the government of any federally recognized Indian tribe.

5. Dissemination. "Dissemination" means the transmission of information by any means, including but not limited to orally, in writing or electronically, by or to anyone outside the criminal justice agency that maintains the information.

6. Executive order. "Executive order" means an order of the President of the United States or the chief executive of a state that has the force of law and that is published in a manner permitting regular public access.

7. Intelligence and investigative record information. "Intelligence and investigative record information" means information of record collected by or prepared by or at the direction of a criminal justice agency or kept in the custody of a criminal justice agency while performing the administration of criminal justice or, exclusively for the Department of the Attorney General and district attorneys' offices, the administration of civil justice. "Intelligence and investigative record information" includes information of record concerning investigative techniques and procedures and security plans and procedures prepared or collected by a criminal justice agency or other agency. "Intelligence and investigative record information" does not include criminal history record information as defined in section 703, subsection 3 and does not include information of record collected or kept while performing the administration of juvenile justice.

8. State. "State" means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam and American Samoa. "State" also includes the federal government of Canada and any provincial government of Canada and the government of any federally recognized Indian tribe.

9. Statute. "Statute" means an Act of Congress or an act of a state legislature or a provision of the Constitution of the United States or the constitution of a state.

§ 804. Limitation on dissemination of intelligence and investigative record information

Except as provided in sections 805 and 806, a record that contains intelligence and investigative record information is confidential and may not be disseminated by a criminal justice agency to any person or public or private entity if there is a reasonable possibility that public release or inspection of the record would:

1. Interfere with criminal law enforcement proceedings. Interfere with law enforcement proceedings relating to crimes;

2. Result in dissemination of prejudicial information. Result in public dissemination of prejudicial information concerning an accused person or concerning the prosecution's evidence that will interfere with the ability of a court to impanel an impartial jury;

3. Constitute an invasion of privacy. Constitute an unwarranted invasion of personal privacy;

4. Disclose confidential source. Disclose the identity of a confidential source;

5. Disclose confidential information. Disclose confidential information furnished only by a confidential source;

6. Disclose trade secrets or other confidential commercial or financial information. Disclose trade secrets or other confidential commercial or financial information designated as such by the owner or source of the information, by the Department of the Attorney General or by a district attorney's office;

7. Disclose investigative techniques or security plans. Disclose investigative techniques and procedures or security plans and procedures not known by the general public;

8. Endanger law enforcement or others. Endanger the life or physical safety of any individual, including law enforcement personnel;

9. Disclose statutorily designated confidential information. Disclose information designated confidential by statute;

10. Interfere with civil proceedings. Interfere with proceedings relating to civil violations, civil enforcement proceedings and other civil proceedings conducted by the Department of the Attorney General or by a district attorney's office;

11. Disclose arbitration or mediation information. Disclose conduct of or statements made or documents submitted by any person in the course of any mediation or arbitration conducted under the auspices of the Department of the Attorney General; or

12. Identify source of consumer or antitrust complaints. Identify the source of a complaint made to the Department of the Attorney General regarding a violation of consumer or antitrust laws.

§ 805. Exceptions

This chapter does not preclude dissemination of intelligence and investigative record information that is confidential under section 804 by a Maine criminal justice agency to:

1. Another criminal justice agency. Another criminal justice agency;

2. A person or entity for purposes of intelligence gathering or ongoing investigation. A person or public or private entity as part of the criminal justice agency's administration of criminal justice or the administration of civil justice by the Department of the Attorney General or a district attorney's office;

3. An accused person or that person's agent or attorney. A person accused of a crime or that person's agent or attorney for trial and sentencing purposes if authorized by:

A. The responsible prosecutorial office or prosecutor; or

B. A court rule or court order of this State or of the United States.

As used in this subsection, "agent" means a licensed professional investigator, an expert witness or a parent, foster parent or guardian if the accused person has not attained 18 years of age;

4. Court. A federal court, the District Court, Superior Court or Supreme Judicial Court or an equivalent court in another state; or

5. An authorized person or entity. A person or public or private entity expressly authorized to receive the intelligence and investigative record information by statute, executive order, court rule, court decision or court order. "Express authorization" means language in the statute, executive order, court rule, court decision or court order that specifically speaks of intelligence and investigative record information or specifically refers to a type of intelligence or investigative record.

§ 806. Exceptions subject to reasonable limitations

Subject to reasonable limitations imposed by a Maine criminal justice agency to protect against the harms described in section 804, this chapter does not preclude dissemination of intelligence and investigative record information confidential under section 804 by a Maine criminal justice agency to:

1. A government agency responsible for investigating child or adult abuse, neglect or exploitation. A government agency or subunit of a government agency in this State or another state that pursuant to statute is responsible for investigating abuse, neglect or exploitation of children or incapacitated or dependent adults if the intelligence and investigative record information is used in the investigation of suspected abuse, neglect or exploitation;

2. A crime victim or that victim's agent or attorney. A crime victim or that victim's agent or attorney. As used in this subsection, "agent" means a licensed professional investigator or an immediate family member if due to death, age or physical or mental disease, disorder or defect the victim cannot realistically act on the victim's own behalf; or

3. A counselor or advocate. A sexual assault counselor, as defined in section 53-A, subsection 1, paragraph B, or an advocate, as defined in section 53-B, subsection 1, paragraph A, with a specific agreement with a criminal justice agency. An agreement between a criminal justice agency and a sexual assault counselor or an advocate must, at a minimum, include provisions that:

A. Permit the sexual assault counselor or advocate to use a report or record that contains intelligence and investigative record information if the intelligence and investigative record information is used in planning for the safety of a victim named in the report or record;

B. Prohibit the sexual assault counselor or advocate from further disseminating a report or record that contains intelligence and investigative record information;

C. Require the sexual assault counselor or advocate to ensure that a report or record that contains intelligence and investigative record information remain secure and confidential;

D. Require the sexual assault counselor or advocate to destroy a report or record that contains intelligence and investigative record information within 30 days after the sexual assault counselor's or advocate's receiving the report or record;

E. Permit the criminal justice agency to perform reasonable and appropriate audits in order to ensure that a report or record containing intelligence and investigative record information that are obtained by and that are in the custody of the sexual assault counselor or advocate are maintained in accordance with the requirements of this subsection;

F. Require the sexual assault counselor or advocate to indemnify and hold harmless the criminal justice agency with respect to any litigation that may result from the provision of reports or records that contain intelligence and investigative record information;

G. Permit a criminal justice agency to immediately and unilaterally revoke an agreement made under this subsection; and

H. Provide sanctions for any violations of this subsection.

The Commissioner of Public Safety may adopt a model agreement pursuant to this subsection for use by criminal justice agencies, sexual assault counselors and advocates.

§ 807. Confirming existence or nonexistence of confidential intelligence and investigative record information

A criminal justice agency may not confirm the existence or nonexistence of intelligence and investigative record information confidential under section 804 to any person or public or private entity that is not eligible to receive the information itself.

§ 808. No right to access or review

A person who is the subject of intelligence and investigative record information maintained by a criminal justice agency has no right to inspect or review that information for accuracy or completeness.

§ 809. Unlawful dissemination of intelligence and investigative record information

1. Offense. A person is guilty of unlawful dissemination of intelligence and investigative record information if the person intentionally disseminates intelligence and investigative record information knowing it to be in violation of any of the provisions of this chapter.

2. Classification. Unlawful dissemination of intelligence and investigative record information is a Class E crime.

PART B

Sec. B-1. 1 MRSA §402, sub-§3-A, as amended by PL 2001, c. 477, §1, is further amended to read:

3-A. Public records further defined. "Public records" also includes the following criminal justice agency records:

A. Records relating to prisoner furloughs to the extent they pertain to a prisoner's identity, conviction data public criminal history record information, as defined in Title 16, section 703, subsection 8, address of furlough and dates of furlough;

B. Records relating to out-of-state adult probationer or parolee supervision to the extent they pertain to a probationer's or parolee's identity, conviction data public criminal history record information, as defined in Title 16, section 703, subsection 8, address of residence and dates of supervision; and

C. Records to the extent they pertain to a prisoner's, adult probationer's or parolee's identity, conviction data public criminal history record information, as defined in Title 16, section 703, subsection 8, and current address or location, unless the Commissioner of Corrections determines that it would be detrimental to the welfare of a client to disclose the information.

Sec. B-2. 5 MRSA §19506, sub-§1, as amended by PL 2001, c. 357, §13, is further amended to read:

1. Records. Agency personnel must be granted access to all records, reports and supporting information, other than records, reports and supporting information created in the course of an ongoing criminal investigation by the Attorney General, a district attorney's office or a law enforcement agency or records, reports and supporting information designated as confidential by Title 16, section 614 804, that:

A. Pertain to a person who is a client of the agency, if the person or the person's legal guardian or other legal representative has authorized the agency to have that access;

C. Describe incidents of abuse, exploitation, neglect or injury, and the steps taken to investigate those incidents, prepared by any staff person of any facility serving persons with disabilities or by any agency charged with investigating allegations of abuse, exploitation, neglect and injury occurring at facilities that serve persons with disabilities; or

D. Pertain to an individual who is or was a person with a disability and who is the subject of a complaint received by the agency or who, as a result of monitoring or other activities resulting from a complaint or other evidence, the agency has probable cause to believe has been or is being abused, exploited or neglected and who:

(1) By reason of a mental or physical condition is unable to authorize the agency to have access and is either under public guardianship or without a legal guardian or other representative who may authorize the agency to have access;

(2) Has a legal guardian, conservator or other legal representative who has been contacted by the agency upon receipt of the name and address of the guardian, conservator or representative, and the agency has offered assistance to that person to resolve the situation, and that person has failed or refused to act on behalf of the individual; or

(3) Is deceased or whose whereabouts are unknown.

Agency personnel must be given access to the records of a person with a disability and other records relevant to conducting an investigation within 3 business days of the agency making a written request. When the agency determines there is probable cause to believe that the health or safety of the person is in serious or immediate jeopardy or in event of the death of a person with a disability, the agency must be given access to records within 24 hours of the agency making a written request.

Sec. B-3. 9-A MRSA §13-115, sub-§1, ¶A, as enacted by PL 2009, c. 362, Pt. B, §1, is amended to read:

A. Criminal, civil and administrative information, including nonconviction data confidential criminal history record information as defined in Title 16, section 611 703, subsection 9 2;

Sec. B-4. 10 MRSA §8003-B, sub-§3, as amended by PL 1993, c. 719, §4 and affected by §12, is further amended to read:

3. Attorney General records. The provision or disclosure of investigative records of the Department of the Attorney General to a departmental employee designated by the commissioner or to a complaint officer of a board or commission does not constitute a waiver of the confidentiality of those records for any other purposes. Further disclosure of those investigative records is subject to Title 16, section 614 804 and the discretion of the Attorney General.

Sec. B-5. 15 MRSA §709, sub-§1-A, as enacted by PL 1987, c. 680, §1, is amended to read:

1-A. Administration of criminal justice. "Administration of criminal justice" has the same meaning as in Title 16, section 611 703, subsection 1.

Sec. B-6. 15 MRSA §3308, sub-§7, ¶A, as enacted by PL 1985, c. 426, is amended to read:

A. For purposes of this subsection the following terms have the following meanings.

(1) "Administration of criminal justice" has the same meaning as found in Title 16, section 611 703, subsection 1.

(2) "Administration of juvenile criminal justice" means detection, activities related to the apprehension or summonsing, detention, conditional or unconditional release, informal adjustment, initial appearance, bind over, adjudication or , disposition , custody and supervision or rehabilitation of accused juveniles or adjudicated juvenile criminal offenders. It includes juvenile crime identification activities and the collection, storage and dissemination of juvenile crime information.

(3) "Criminal justice agency" has the same meaning as found in Title 16, section 611 703, subsection 4.

(4) "Dissemination" has the same meaning as found in Title 16, section 611 703, subsection 6.

Sec. B-7. 16 MRSA §632, as enacted by PL 1993, c. 346, §1, is amended to read:

§ 632. Definitions

As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Administration of criminal justice. "Administration of criminal justice" has the same meaning as defined in section 611 703, subsection 1.

2. Conviction data. "Conviction data" has the same meaning as defined in section 611, subsection 2.

2-A. Confidential criminal history record information. "Confidential criminal history record information" has the same meaning as defined in section 703, subsection 2.

3. Criminal history record information. "Criminal history record information" has the same meaning as defined in section 611 703, subsection 3.

4. Criminal justice agency. "Criminal justice agency" has the same meaning as defined in section 611 703, subsection 4.

5. Criminal record information system. "Criminal record information system" means a system including equipment, facilities, procedures and agreements for the collection, processing, preservation and dissemination of criminal record information including criminal history record information.

6. Disposition. "Disposition" has the same meaning as defined in section 611 703, subsection 5.

7. Executive order. "Executive order" has the same meaning as defined in section 611 703, subsection 7.

8. Nonconviction data. "Nonconviction data" has the same meaning as defined in section 611, subsection 9.

9. Offender. "Offender" means an individual, juvenile or adult, accused or convicted of a criminal offense under the laws of this State or federal law.

10. Offender-based tracking information. "Offender-based tracking information" means information collected during the administration of criminal justice by criminal justice agencies related to an identifiable person who has been determined to be an offender.

11. Person. "Person" has the same meaning as defined in section 611, subsection 10.

11-A. Public criminal history record information. "Public criminal history record information" has the same meaning as defined in section 703, subsection 8.

12. State. "State" has the same meaning as defined in section 611 703, subsection 11 9.

13. Statute. "Statute" has the same meaning as defined in section 611 703, subsection 12 10.

Sec. B-8. 17 MRSA §1023, sub-§3, as enacted by PL 2001, c. 422, §13, is amended to read:

3. Cooperation between agencies. For the purposes of this section, law enforcement officers, the commissioner or the commissioner's designee, humane agents, a state veterinarian and certified animal control officers may exchange information and reports pertaining to an investigation of cruelty to animals pursuant to Title 16, chapter 3, subchapter VIII subsection 4 and Title 7, section 3909, subsection 6.

Sec. B-9. 18-A MRSA §9-304, sub-§(a-1), ¶(2), as corrected by RR 2001, c. 1, §21, is amended to read:

(2). The court shall request a background check for each prospective adoptive parent who is not the biological parent of the child. The background check must include a screening for child abuse cases in the records of the department and criminal history record information obtained from the Maine Criminal Justice Information System and the Federal Bureau of Investigation.

(i) The criminal history record information obtained from the Maine Criminal Justice Information System must include a record of Maine conviction data public criminal history record information as defined in Title 16, section 703, subsection 8.

(ii) The criminal history record information obtained from the Federal Bureau of Investigation must include other state and national criminal history record information.

(iii) Each prospective parent who is not the biological parent of the child shall submit to having fingerprints taken. The State Police, upon receipt of the fingerprint card, may charge the court for the expenses incurred in processing state and national criminal history record checks. The State Police shall take or cause to be taken the applicant's fingerprints and shall forward the fingerprints to the State Bureau of Identification so that the bureau can conduct state and national criminal history record checks. Except for the portion of the payment, if any, that constitutes the processing fee charged by the Federal Bureau of Investigation, all money received by the State Police for purposes of this paragraph must be paid over to the Treasurer of State. The money must be applied to the expenses of administration incurred by the Department of Public Safety.

(iv) The subject of a Federal Bureau of Investigation criminal history record check may obtain a copy of the criminal history record check by following the procedures outlined in 28 Code of Federal Regulations, Sections 16.32 and 16.33. The subject of a state criminal history record check may inspect and review the criminal history record information pursuant to Title 16, section 620 709.

(v) State and federal criminal history record information may be used by the court for the purpose of screening prospective adoptive parents in determining whether the adoption is in the best interests of the child.

(vi) Information obtained pursuant to this paragraph is confidential. The results of background checks received by the court are for official use only and may not be disseminated outside the court except as required under Title 22, section 4011-A.

(vii) The expense of obtaining the information required by this paragraph is incorporated in the adoption filing fee established in section 9-301. The Probate Court shall collect the total fee and transfer the appropriate funds to the Department of Public Safety and the department.

Sec. B-10. 18-A MRSA §9-304, sub-§(a-2), ¶(1), as enacted by PL 2003, c. 575, §2, is amended to read:

(1). The department may request a background check for each prospective adoptive parent who is not the biological parent of the child. The background check must include criminal history record information obtained from the Maine Criminal Justice Information System and the Federal Bureau of Investigation.

(ii) The criminal history record information obtained from the Federal Bureau of Investigation must include other state and national criminal history record information.

(iii) Each prospective parent who is not the biological parent of the child shall submit to having fingerprints taken. The State Police, upon receipt of the fingerprint card, may charge the department for the expenses incurred in processing state and national criminal history record checks. The State Police shall take or cause to be taken the applicant's fingerprints and shall forward the fingerprints to the State Bureau of Identification so that the bureau can conduct state and national criminal history record checks. Except for the portion of the payment, if any, that constitutes the processing fee charged by the Federal Bureau of Investigation, all money received by the State Police for purposes of this paragraph must be paid over to the Treasurer of State. The money must be applied to the expenses of administration incurred by the Department of Public Safety.

(v) State and federal criminal history record information may be used by the department for the purpose of screening prospective adoptive parents in determining whether the adoption is in the best interests of the child.

(vi) Information obtained pursuant to this paragraph is confidential. The results of background checks received by the department are for official use only and may not be disseminated outside the department except to a court considering an adoption petition under subsection (a-1).

Sec. B-11. 20-A MRSA §6103, sub-§1, as amended by PL 1997, c. 452, §3, is further amended to read:

1. Criminal history record information obtained; reliance. The commissioner shall obtain criminal history record information containing a record of conviction data confidential criminal history record information as defined in Title 16, section 703, subsection 2 from the Maine Criminal Justice Information System for any person applying for certification, authorization, approval or renewal. The commissioner may rely on information provided by the Maine Criminal Justice Information System within 24 months prior to the issuance of a certificate, authorization, approval or renewal.

Sec. B-12. 20-A MRSA §6103, sub-§8, as enacted by PL 1997, c. 452, §3, is amended to read:

8. Applicant's access to criminal history record check. The subject of a Federal Bureau of Investigation criminal history record check may obtain a copy of a criminal history record check by following the procedures outlined in 28 Code of Federal Regulations, Sections 16.32 and 16.33. The subject of a state criminal record check may inspect and review criminal record information pursuant to Title 16, section 620 709.

Sec. B-13. 22 MRSA §3022, sub-§14, as enacted by PL 2001, c. 221, §5, is amended to read:

14. Access to report documents. Report documents, as defined in section 3035, subsection 2, in the possession or custody of a medical examiner or the Office of the Chief Medical Examiner constitute investigative information. Release and inspection are governed by Title 16, section 614 804. Release and inspection are also contingent upon the person's request specifying a specific decedent or decedents and the payment of any required fee under section 3035.

Sec. B-14. 22 MRSA §3480, sub-§1, ¶B, as corrected by RR 2009, c. 2, §56, is amended to read:

B. Obtain nonconviction data confidential criminal history record information and other criminal history record information under Title 16, section 611 703, which the commissioner, the commissioner's delegate or the legal counsel for the department deems considers relevant to a case of alleged abuse, neglect or exploitation.

Sec. B-15. 22 MRSA §4007, sub-§1-A, ¶D, as enacted by PL 2007, c. 351, §2, is amended to read:

D. Records that are required to be maintained by the court as confidential under this subsection may be disclosed to:

(1) A state agency if necessary to carry out the statutory function of that agency;

(2) A guardian ad litem appointed to the case; or

(3) A criminal justice agency, as defined by Title 16, section 611 703, subsection 4, if necessary to carry out the administration of criminal justice or the administration of juvenile justice, and such disclosure is otherwise permitted pursuant to section 4008.

In making such disclosure, the court shall order the party receiving the information to maintain the information as confidential.

Sec. B-16. 22 MRSA §4021, sub-§1, ¶B, as amended by PL 2007, c. 586, §15, is further amended to read:

B. Obtain nonconviction data confidential criminal history record information and other criminal history record information under Title 16, chapter 3, subchapter 8 7 that the commissioner, the commissioner's delegate or the legal counsel for the department considers relevant to an abuse or neglect case or the investigation of a suspicious child death.

Sec. B-17. 22 MRSA §4038-E, sub-§7, ¶A, as enacted by PL 2011, c. 402, §15, is amended to read:

A. The department may, pursuant to rules adopted pursuant to Title 18-A, section 9-304, subsection (a-2), request a background check for each permanency guardian. The background check must include criminal history record information obtained from the Maine Criminal Justice Information System and the Federal Bureau of Investigation.

(1) The criminal history record information obtained from the Maine Criminal Justice Information System must include a record of Maine conviction data public criminal history record information as defined in Title 16, section 703, subsection 8.

(2) The criminal history record information obtained from the Federal Bureau of Investigation must include other state and national criminal history record information.

(3) Each permanency guardian of the child shall submit to having fingerprints taken. The State Police, upon receipt of the fingerprint card, may charge the department for the expenses incurred in processing state and national criminal history record checks. The State Police shall take or cause to be taken the applicant's fingerprints and shall forward the fingerprints to the State Bureau of Identification so that the bureau can conduct state and national criminal history record checks. Except for the portion of the payment, if any, that constitutes the processing fee charged by the Federal Bureau of Investigation, all money received by the State Police for purposes of this paragraph must be paid over to the Treasurer of State. The money must be applied to the expenses of administration incurred by the Department of Public Safety.

(4) The subject of a Federal Bureau of Investigation criminal history record check may obtain a copy of the criminal history record check by following the procedures outlined in 28 Code of Federal Regulations, Sections 16.32 and 16.33. The subject of a state criminal history record check may inspect and review the criminal history record information pursuant to Title 16, section 620 709.

(5) State and federal criminal history record information may be used by the department for the purpose of screening each permanency guardian in determining whether the adoption is in the best interests of the child.

(6) Information obtained pursuant to this paragraph is confidential. The results of background checks received by the department are for official use only and may not be disseminated outside the department except to a court considering an adoption petition under this section.

Sec. B-18. 25 MRSA §1541, sub-§3, ¶B, as enacted by PL 2001, c. 372, §1, is amended to read:

B. Notwithstanding chapter 199, the fingerprints and descriptive information of any person that have been submitted to the Federal Bureau of Investigation for the purpose of conducting a criminal history record check for noncriminal justice purposes through the interstate identification index system, as defined in section 1703, subsection 12, are not a criminal history record, as defined by section 1703, subsection 5, or criminal history record information, as defined by Title 16, section 611 703, subsection 3, and such submittal is not an activity related to criminal justice, as defined by section 1703, subsection 6, or the administration of criminal justice, as defined by Title 16, section 611 703, subsection 1.

Sec. B-19. 25 MRSA §1541, sub-§6, as amended by PL 2007, c. 539, Pt. PPP, §1, is further amended to read:

6. Establishment of fees. The State Bureau of Identification may charge a fee to individuals, nongovernmental organizations, governmental organizations that are engaged in licensing and governmental organizations that are not a governmental entity of the State, a county of the State or a municipality of the State for each criminal history record check requested for noncriminal justice purposes pursuant to Title 16, chapter 3, subchapter 8 7. The requestor shall provide a name and date of birth for each record being requested. A request made pursuant to 5 United States Code, Section 9101 must be accompanied by fingerprints. A governmental organization that is engaged in licensing may charge an applicant for the cost of the criminal history record check. The commissioner shall establish a schedule of fees that covers the cost of providing these services. One dollar of each fee generated under this subsection must be deposited to the Other Special Revenue account within the Bureau of State Police to offset the cost of maintenance and replacement of both hardware and software associated with the criminal history record check system. The remaining revenues generated from these fees must be credited to the General Fund.

Sec. B-20. 29-A MRSA §2117-A, sub-§5, as enacted by PL 2009, c. 605, §1, is amended to read:

5. Data retention. Data collected or retained through the use of an automated license plate recognition system in accordance with subsection 3 that are not considered intelligence and investigative record information as defined by Title 16, section 611 803, subsection 8 7, or data collected for the purposes of commercial motor vehicle screening, may not be stored for more than 21 days.

Sec. B-21. 32 MRSA §85, sub-§3, as amended by PL 2011, c. 271, §8, is further amended to read:

3. Minimum requirements for licensing. In setting rules for the licensure of emergency medical services persons, the board shall ensure that a person is not licensed to care for patients unless that person's qualifications are at least those specified in this subsection. Any person who meets these conditions is considered to have the credentials and skill demonstrations necessary for licensure to provide emergency medical treatment.

A. The person must have completed successfully the training specified in rules adopted by the board pursuant to the Maine Administrative Procedure Act.

C. The person must have successfully completed a state cognitive test for basic emergency medical treatment and a board-approved practical evaluation of emergency medical treatment skills.

The board shall obtain criminal history record information containing a record of conviction data public criminal history record information as defined in Title 16, section 703, subsection 9 for an applicant seeking licensure under this subsection. Information obtained pursuant to this subsection is confidential and may be used only to determine suitability for issuance of a license to provide emergency medical services. The results of criminal history record checks received by the board are for official use only and may not be disseminated outside the board. The applicant for licensure shall pay the expense of obtaining the information required by this subsection.

Sec. B-22. 34-A MRSA §1001, sub-§§19 and 20, as enacted by PL 1987, c. 633, §1, are amended to read:

19. Administration of criminal justice. "Administration of criminal justice" has the same meaning as in Title 16, section 611 703, subsection 1.

20. Criminal justice agency. "Criminal justice agency" has the same meaning as in Title 16, section 611 703, subsection 4.

Sec. B-23. 34-A MRSA §1216, sub-§1, as amended by PL 2011, c. 515, §2 and c. 662, §22, is repealed and the following enacted in its place:

1. Limited disclosure. All orders of commitment, medical and administrative records, applications and reports, and facts contained in them, pertaining to any person receiving services from the department must be kept confidential and may not be disclosed by any person, except that public records must be disclosed in accordance with Title 1, section 408-A; criminal history record information may be disseminated in accordance with Title 16, chapter 7; and documents other than those documents pertaining to information obtained by the department for the purpose of evaluating a client's ability to participate in a community-based program or from informants in a correctional or detention facility for the purpose of determining whether facility rules have been violated or pertaining to a victim's request for notice of release may, and must upon request, be disclosed:

A. To any person if the person receiving services, that person's legal guardian, if any, and, if that person is a minor, that person's parent or legal guardian give informed written consent to the disclosure of the documents referred to in this subsection after being given the opportunity to review the documents sought to be disclosed;

B. To any state agency if necessary to carry out the statutory functions of that agency;

C. If ordered by a court of record, subject to any limitation in the Maine Rules of Evidence, Rule 503;

D. To any criminal justice agency if necessary to carry out the administration of criminal justice or the administration of juvenile criminal justice or for criminal justice agency employment;

E. To persons engaged in research if:

(1) The research plan is first submitted to and approved by the commissioner;

(2) The disclosure is approved by the commissioner; and

(3) Neither original records nor identifying data are removed from the facility or office that prepared the records.

The commissioner and the person doing the research shall preserve the anonymity of the person receiving services from the department and may not disseminate data that refer to that person by name or number or in any other way that might lead to the person's identification;

F. To persons who directly supervise or report on the health, behavior or progress of a juvenile, to the superintendent of a juvenile's school and the superintendent's designees and to agencies that are or might become responsible for the health or welfare of a juvenile if the information is relevant to and disseminated for the purpose of creating or maintaining an individualized plan for the juvenile's rehabilitation, including reintegration into the school; or

G. To any state agency engaged in statistical analysis for the purpose of improving the delivery of services to persons who are or might become mutual clients if:

(1) The plan for the statistical analysis is first submitted to and approved by the commissioner; and

(2) The disclosure is approved by the commissioner.

The commissioner and the state agency requesting the information shall preserve the anonymity of the persons receiving services from the department and may not disseminate data that refer to any person by name or number or that in any other way might lead to a person's identification.

Notwithstanding any other provision of law, the department may release the names, dates of birth and social security numbers of persons receiving services from the department and, if applicable, eligibility numbers and the dates on which those persons received services to any state or federal agency for the sole purpose of determining eligibility and billing for services and payments under federally funded programs administered by the agency. The department may also release to the agency information required for and to be used solely for audit or research purposes, consistent with federal law, for those services provided by or through the department. Agency personnel shall treat this information as confidential in accordance with federal and state law and shall return the records when their purpose has been served.

Sec. B-24. 34-A MRSA §11221, sub-§8, as enacted by PL 2003, c. 371, §7, is amended to read:

8. Criminal justice agency access to information. The bureau shall provide access to the information described in subsection 1 to criminal justice agencies. For purposes of this subsection, "criminal justice agency" has the same meaning as in Title 16, section 611 703, subsection 4.

Sec. B-25. 34-A MRSA §11221, sub-§10, as amended by PL 2011, c. 299, §2, is further amended to read:

10. Registrant access to information. The bureau shall provide all information described in subsection 1, paragraphs A to F to a registrant who requests that person's own information. The process for access and review of that information is governed by Title 16, section 620 709.

Sec. B-26. 34-A MRSA §11281, sub-§6, as enacted by PL 2011, c. 663, §3, is amended to read:

6. Criminal justice agency access to information. The bureau shall provide access to the information described in subsection 1 to criminal justice agencies. For purposes of this subsection, "criminal justice agency" has the same meaning as in Title 16, section 611 703, subsection 4.

PART C

Sec. C-1. 7 MRSA §3909, sub-§6 is enacted to read:

6. Confidential information. The names of and other identifying information about persons providing information pertaining to criminal or civil cruelty to animals to the department are confidential information and may not be released.

Sec. C-2. 17 MRSA §1023, sub-§4 is enacted to read:

4. Confidential information. The names of and other identifying information about persons providing information pertaining to criminal or civil cruelty to animals to the Department of Agriculture, Conservation and Forestry are confidential information and may not be released.

PART D

Sec. D-1. 15 MRSA §3308-A is enacted to read:

§ 3308-A. Dissemination of juvenile intelligence and investigative record information by a Maine criminal justice agency

The following provisions apply to the dissemination of juvenile intelligence and investigative record information collected by or at the direction of or kept in the custody of any Maine criminal justice agency.

1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.

A. "Administration of juvenile justice" means activities relating to the anticipation, prevention, detection, monitoring or investigation of known, suspected or possible juvenile crimes. "Administration of juvenile justice" includes the collection, storage and dissemination of juvenile intelligence and investigative record information relating to the administration of juvenile justice.

B. "Criminal justice agency" has the same meaning as in Title 16, section 803, subsection 4.

C. "Dissemination" has the same meaning as in Title 16, section 803, subsection 5.

D. "Executive order" has the same meaning as in Title 16, section 803, subsection 6.

E. "Juvenile intelligence and investigative record information" means information of record collected by a criminal justice agency or at the direction of a criminal justice agency or kept in the custody of a criminal justice agency while performing the administration of juvenile justice. "Juvenile intelligence and investigative record information" includes information of record concerning investigative techniques and procedures and security plans and procedures prepared or collected by a criminal justice agency or another agency. "Juvenile intelligence and investigative record information" does not include criminal history record information as defined in Title 16, section 703, subsection 3 or intelligence and investigative record information as defined in Title 16, section 803, subsection 7.

F. "State" has the same meaning as in Title 16, section 803, subsection 8.

G. "Statute" has the same meaning as in Title 16, section 803, subsection 9.

2. Information part of proceeding. To the extent the juvenile intelligence and investigative record information has been made part of the court records of a juvenile proceeding, dissemination of that juvenile intelligence and investigative record information by a Maine criminal justice agency must be as provided by section 3307 and section 3308.

3. Limited dissemination. Except as otherwise provided in subsection 2, juvenile intelligence and investigative record information is confidential and may be disseminated by a Maine criminal justice agency only to:

A. Another criminal justice agency;

B. A person or public or private entity as part of performing the administration of juvenile justice;

C. A juvenile accused of a juvenile crime or that juvenile's agent or attorney for adjudicatory or dispositional purposes if authorized by:

(1) The responsible prosecutorial office or prosecutor; or

(2) A court rule or court order of this State or of the United States.

As used in this paragraph, "agent" means a licensed professional investigator, an expert witness or the juvenile's parents, guardian or legal custodian;

D. A juvenile crime victim or that victim's agent or attorney if authorized by:

(1) Statute; or

(2) A court order.

As used in this paragraph, "agent" means a licensed professional investigator or an immediate family member if, due to death, age, physical or mental disease, disorder or intellectual disability or autism, the victim cannot realistically act on the victim's own behalf;

E. A federal court, the District Court, including when it is exercising the jurisdiction conferred by section 3101, the Superior Court or the Supreme Judicial Court and an equivalent court in another state; and

F. A person or public or private entity expressly authorized to receive the juvenile intelligence and investigative record information by statute, executive order, court rule, court decision or court order. "Express authorization" means language in the statute, executive order, court rule, court decision or court order that specifically speaks to intelligence or investigative record information or specifically refers to a type of intelligence or investigative record.

summary

This bill implements the recommendations of the Criminal Law Advisory Commission to revise the criminal history record information laws, currently allocated to the Maine Revised Statutes, Title 16, chapter 3, subchapter 8.

Part A of the bill repeals chapter 3, subchapter 8, which includes sections 611 to 623, and enacts 2 new chapters within Title 16. The creation of 2 chapters allows for the separate treatment of the 2 mutually exclusive information-of-record categories of criminal history record information and intelligence and investigative record information. Their consolidated treatment in chapter 3, subchapter 8 resulted in significant confusion as to their differing meanings and applications.

1. This bill enacts Title 16, chapter 7, which:

A. Designates, in section 701, the new chapter as the Criminal History Record Information Act;

B. Outlines, in section 702, the chapter's scope and application, which had no counterpart in former subchapter 8. It makes clear that when criminal history record information is public information, the term "public criminal history record information" is used. Similarly, when criminal history record information is confidential, it is labeled as "confidential criminal history record information";

C. Defines, in section 703, like in former section 611, technical terms used throughout the subchapter, including:

(1) A definition of "administration of criminal justice," which mirrors former section 611, subsection 1, except that the word "detection" has been eliminated from the first sentence and "criminal identification activities" has been eliminated from the 2nd sentence because such activities are now addressed in the new chapter 9 regarding intelligence and investigative record information;

(2) A definition of "confidential criminal history record information," which replaces former section 611, subsection 9. What was formerly identified as "nonconviction data" is now identified as "confidential criminal history record information." The types of criminal history record information described in former section 611, subsection 9 are included in section 703, subsection 2 and have been modified for purposes of clarity and completeness. Section 703, subsection 2, paragraphs D, I, J and K have no counterpart in former section 611, subsection 9;

(3) A definition of "criminal history record information," which replaces former section 611, subsection 3 with a new section 703, subsection 3 and expands on the former definition. The new subsection 3 employs and refers to formal involvement in the criminal justice system either as an accused or as a convicted criminal defendant and defines the term to specifically include "a juvenile treated by statute as an adult for criminal prosecution purposes" and expands on examples of criminal history record information. The new definition expressly excludes civil proceedings of any kind, intelligence and investigative record information and any information of record of juvenile crime proceedings;

(4) A definition of "criminal justice agency," which replaces former section 611, subsection 4 with a new section 703, subsection 4 and differs in 4 substantive respects. First, the definition now specifies that the only jurisdictions to which it applies are the Federal Government, a state as defined in the new section 703, subsection 9 and the State of Maine. Foreign countries, other than Canada, are not included. Second, as to the included jurisdictions, the applicable government agencies or subunits are at all governmental levels. The former references to state, district, county or local have been replaced by "at any governmental level" because although these governmental divisions are appropriate insofar as Maine is concerned, they are not necessarily correct in describing the governmental divisions in the other named jurisdictions. Third, the definition no longer conditions government agency or subunit qualification on whether the criminal justice agency allocates a substantial part of its annual budget to the administration of criminal justice. It also adds an equivalent agency of any federally recognized Indian tribe. Fourth, it replaces the word "courts" with "federal courts, Maine courts, courts in any other state";

(5) A definition of "disposition," which replaces former section 611, subsection 5;

(6) A definition of "dissemination," which parallels former section 611, subsection 6, but expands the listed means of transmission by adding the phrase "by any means";

(7) A definition of "executive order," which parallels former section 611, subsection 7 but makes 3 nonsubstantive changes;

(8) A definition of "public criminal history record information," which replaces former section 611, subsection 9. What was formerly identified as "conviction data" is now identified as "public criminal history record information." It defines "public criminal history record information" to mean "criminal history record information that is not confidential criminal history record information";

(9) A definition of "state," which parallels former section 611, subsection 11, but specifically identifies what formerly was described as "any territory or possession of the United States." It includes in the definition of "state" the federal and any provincial government of Canada and any federally recognized Indian tribe, both of which are a "criminal justice agency"; and

(10) A definition of "statute," which mirrors the content of the former definition in section 611, subsection 12;

D. Collects in section 704 in a single comprehensive section addressing the dissemination of public criminal history record information by a Maine criminal justice agency what formerly was contained in former sections 612, subsection 3, section 615 and section 616. It is made up of 2 subsections. The first subsection elaborates on former section 612, subsection 3 and former section 615. It makes clear that public criminal history record information is public for purposes of the Freedom of Access Act; that no time limitation exists for the dissemination of it; and that "no time limitation" means that dissemination is authorized whether the information relates to a crime for which a person is currently within the jurisdiction of the criminal justice system or instead, is no longer within that jurisdiction. The 2nd subsection parallels former section 616, but differs in 3 respects. First, a Maine court is exempted from making inquiry of the State Bureau of Identification before dissemination because a court's own records already contain the most up-to-date disposition information. Second, only dissemination of public criminal history record information for a noncriminal justice purpose is addressed. Confidential criminal history record information in this context is now addressed in section 705, subsection 3. Third, the term "noncriminal justice purpose" is now defined to mean "a purpose other than the administration of criminal justice or criminal justice agency employment";

E. Collects in section 705 in a single comprehensive section addressing the dissemination of confidential criminal history record information by a Maine criminal justice agency what formerly was contained in former section 612, subsection 3 and sections 613, 616 and 618. Subsection 1 establishes the general rule that dissemination of such information directly or through an intermediary by a Maine criminal justice agency is only to authorized persons or entities and lists the authorized persons and entities. Paragraphs A to D mirror former section 613, subsections 1 to 4. Paragraph E parallels former section 612, subsection 3, paragraph B, but does not require that the information disseminated be based upon data excluded by section 708, former section 612, subsection 2, as unnecessary. The remaining issue contained in the final sentence of former paragraph B is controlled by new paragraph F. Paragraph F expands and clarifies former section 612, subsection 3, paragraph A. It expressly allows dissemination by a Maine criminal justice agency to the public for the purpose of announcing the fact of a specific disposition that is confidential criminal history record information, other than that contained in section 703, subsection 2, paragraph A, within 30 days of the date of occurrence of that disposition. Further, it also allows for public dissemination at any point in time if the person to whom the disposition relates specifically authorizes that it be made public. Paragraph G replaces former section 612, subsection 3, paragraph C and parallels its content. Section 705, subsection 2 replaces former section 618 and parallels its content. Section 705, subsection 3 replaces former section 616. It mirrors the content of section 704, subsection 2 except that it addresses only the dissemination of confidential criminal history information. Public criminal history record information in this context is addressed in section 704, subsection 2;

F. Enacts section 706 to replace former section 612-A. Like its predecessor, it serves the dual purpose of helping to guard against secret arrests and to provide public access to information concerning the crime or crimes for which a person is arrested and the time, place and circumstances of the arrest itself. Although section 706 parallels former section 612-A, changes have been made in subsection 1 to enhance clarity and completeness. The former requirement in section 612-A, subsection 2 that the permanent record be in a bound volume has been removed in light of current electronic recording methods, and the former exception respecting juveniles in section 612-A, subsection 3 has been deleted as unnecessary in light of section 703, subsection 3;

G. Enacts section 707 to replace former section 619. Although it parallels former section 619, it limits the crime to the unlawful dissemination of confidential criminal history record information and conditions criminality upon the person intentionally disseminating and knowing it to be in violation of any of the provisions of chapter 7;

H. Enacts section 708 to replace former section 612, subsection 2. It retains each of the former exceptions to which the subchapter does not apply. Except for subsection 3, changes were made to the former law only to enhance clarity and completeness. Subsection 3 has been redrafted to clarify that access to and dissemination of Maine trial and appellate court records of public judicial proceedings is as the Supreme Judicial Court provides by rule or administrative order;

I. Enacts section 709 to replace former section 620, makes the language gender neutral and removes language addressing intelligence and investigative record information because chapter 9 now addresses that information. In addition, language addressing judicial review has been updated to rely upon the Maine Administrative Procedure Act and Rule 80C of the Maine Rules of Civil Procedure; and

J. Enacts section 710, which replaces former section 622 and mirrors its content.

2. The bill enacts Title 16, chapter 9, which:

A. Enacts section 801, which designates chapter 9 as the Intelligence and Investigative Record Information Act;

B. Enacts section 802, which replaces that portion of former section 614, subsection 1 that applied the section 614 limitations on dissemination of intelligence and investigative information of record to specifically identified Maine criminal justice agencies, rather than to all Maine criminal justice agencies. Section 802 applies the chapter to all Maine criminal justice agencies;

C. Defines in section 803, like in former section 611, technical terms used throughout the chapter, including:

(1) A definition of "administration of civil justice," which had no counterpart in former subchapter 8. It addresses the same types of criminal justice agency activities described in the new subsection 2 but in the context of "civil violations" and "civil actions" rather than in the context of crimes. It does not include known, suspected or possible traffic infractions;

(2) A definition of "administration of criminal justice," which is wholly different from former section 611, subsection 1 except to the extent former subsection 1 included the activities of "detection" and "criminal identification." It includes criminal justice agency activities "relating to the anticipation, prevention, detection, monitoring or investigation of known, suspected or possible crimes," activities that generally predate the activities addressed in former section 611, subsection 1. However, particularly in the context of "known" crimes, investigation can continue well after a specific, identifiable person is formally involved with the criminal justice system as an accused in anticipation of trial and sentencing;

(3) A definition of "administration of juvenile justice," which had no counterpart in former subchapter 8. It addresses the same types of criminal justice agency activities described in the new subsections 1 and 2 but in the context of juvenile crimes. The administration of juvenile justice is distinct from the administration of criminal justice and the administration of civil justice because a juvenile crime is, strictly speaking, neither a crime nor is it civil. It is a hybrid of both. As a consequence, the administration of juvenile justice is expressly excluded from the definition of "intelligence and investigative record information" and is instead addressed in a new section 3308-A of the Maine Juvenile Code;

(4) A definition of "criminal justice agency," which replaces former section 611, subsection 4 and mirrors new section 703, subsection 4, except it does not include courts. Courts are now addressed in section 805, subsection 4;

(5) A definition of "dissemination," which replaces former section 611, subsection 6 and mirrors new section 703, subsection 6;

(6) A definition of "executive order," which replaces former section 611, subsection 7 and mirrors new section 703, subsection 7;

(7) A definition of "intelligence and investigative record information," which replaces former section 611, subsection 8 and modifies the former definition to better clarify the scope of the definition. It speaks both in terms of information of record collected or kept by any Maine criminal justice agency while performing the "administration of criminal justice," which is included as subsection 1, and in terms of information of record collected or kept by the Department of the Attorney General or by district attorneys' offices when they are performing the administration of civil justice, included as subsection 2. The definition of "intelligence and investigative record information" includes the Department of the Attorney General's records relating to the administration of civil justice in order to perpetuate Public Law 1993, chapter 719, "An Act to Bring the Department of the Attorney General into Conformity with the Criminal History Record Information Laws." District attorneys' offices have been added because they too have records relating to the administration of civil justice that merit similar treatment. Further, it expands the former reference to operation plans to reflect new section 804, subsection 7 and former section 614, subsection 1, paragraph G. See also Title 1, section 402, subsection 3, paragraph L. Subsection 7, like former section 611, subsection 8, expressly excludes criminal history record information as defined in section 703. It expressly addresses the "administration of juvenile justice" and makes clear that information of record collected or kept while a criminal justice agency is performing the administration of juvenile justice is not included and thus is not addressed further in this chapter;

(8) A definition of "state," which replaces former section 611, subsection 11 and mirrors new section 703, subsection 9; and

(9) A definition of "statute," which replaces former section 611, subsection 12 and mirrors new section 703, subsection 10;

D. Enacts section 804, which contains that portion of former section 614, subsection 1 that prohibits a criminal justice agency from disseminating intelligence and investigative record information to the public if there is a reasonable possibility that public release or inspection of the information would result in one or more enumerated harms in section 614, subsection 1. Section 804 lists 12 harms, 9 of which mirror the content of the formerly listed harms in section 614, subsection 1. Two of the remaining 12 were formerly listed harms, but with slightly changed content. Subsection 1 parallels former section 614, subsection 1, paragraph A, but the clarifying phrase "relating to crimes" has been added to draw the necessary distinction between the subsection 1 harm of interference with criminal proceedings and the new subsection 10 harm of interference with civil proceedings conducted by the Department of the Attorney General or by a district attorney. Section 804, subsection 6 parallels former section 614, subsection 1, paragraph F but the phrase "or by a district attorney's office" has been added to make clear that such offices, in carrying out their prosecutorial responsibilities, must also have the same authority as the Department of the Attorney General to designate information as a trade secret or as confidential commercial or financial information. Lastly, section 804, subsection 10 has been added and has no counterpart in former section 614, subsection 1. The specific harm identified is interfering with proceedings relating to civil violations, civil enforcement proceedings and other civil proceedings conducted by the Department of the Attorney General or by a district attorney's office. Subsections 11 and 12 apply solely to the Department of the Attorney General because these harms are unique to that department. Section 804 does not contain the content of former section 614, subsection 1-A relating to information about reports of cruelty to animals; instead its substance has been relocated to both Title 7, section 3909, subsection 6 and Title 17, section 1023, subsection 4;

E. Enacts section 805, which, along with section 806, replaces former section 614, subsection 3. Section 805 lists certain disseminations of confidential intelligence and investigative record information by a Maine criminal justice agency that are excepted from section 804. These exceptions, unlike those listed in section 806, are not subject to reasonable limitations to protect against the harms described in section 804. The first unconditional exception in subsection 1 mirrors former section 614, subsection 3, paragraph A. The 2nd unconditional exception in subsection 2 has no counterpart in former section 614, subsection 3. It has been added to make clear that criminal justice agencies, when carrying out the administration of criminal justice, often disseminate intelligence and investigative record information to persons and public or private entities for intelligence gathering purposes and for ongoing investigative purposes and that such disseminations are authorized under chapter 9. Additionally, subsection 2 has been added to make clear that the Department of the Attorney General and district attorneys' offices are authorized under chapter 9 to make similar disseminations to carry out the administration of civil justice. The 3rd unconditional exception in subsection 3 parallels former section 614, subsection 3, but with 4 modifications. First, the phrase "an accused person" is replaced by a "person accused of a crime" for trial and sentencing purposes. Second, the person's "agent" is defined. Third, the required authorization contained in subsection 3, paragraph A merges former subsection 3, paragraph C, subparagraphs (1) and (3). Fourth, the required authorization contained in subsection 3, paragraph B slightly modifies the wording of subsection 3, paragraph A, subparagraph (2). The 4th unconditional exception in subsection 4 has no counterpart in former section 614, subsection 3. It has been added to make clear that criminal justice agencies may disseminate confidential intelligence and investigative record information to a federal court, the District Court, Superior Court or Supreme Judicial Court, and the equivalent courts in another state. The 5th and final unconditional exception in subsection 5 has no counterpart in former section 614, subsection 3. It is modeled after section 705, subsection 1, paragraph B but redrafted to address intelligence and investigative record information rather than confidential criminal history record information. It allows dissemination of confidential intelligence and investigative record information by a Maine criminal justice agency to a person or public entity expressly authorized to receive the information by statute, executive order, court rule, court decision or court order. "Express authorization" is defined;

F. Enacts section 806, which replaces that portion of former section 614, subsection 3 that listed certain disseminations of confidential intelligence or investigative record information by a Maine criminal justice agency that were excepted from former section 614, subsection 1, but nonetheless were subject to reasonable limitations to protect the interests against the harms described in subsection 1. The first conditional exception in section 806, subsection 1 parallels former subsection 3, paragraph B but broadens its scope to include a "government agency or subunit of a government agency in this State or another state that pursuant to statute is responsible for investigating abuse, neglect or exploitation of children or incapacitated or dependent adults" for use in the investigation of suspected abuse, neglect or exploitation. The 2nd conditional exception in section 806, subsection 2 mirrors former subsection 3, paragraph D except the victim's "agent," previously undefined, is now defined to mean "a licensed professional investigator or an immediate family member if due to death, age or physical or mental disease, disorder or defect the victim cannot realistically act on the victim's own behalf." The 3rd and final conditional exception in section 806, subsection 1 mirrors former subsection 3, paragraph E;

G. Enacts section 807, which has no former counterpart in subchapter 8, but it parallels section 705, subsection 2 respecting a criminal justice agency confirming the existence or nonexistence of confidential criminal history record information to any person or public or private entity that would not be eligible to receive the information itself;

H. Enacts section 808, which carries forward that portion of former section 620, subsection 1 that denied to a person who is the subject of intelligence and investigative record information the right to inspect or review that information; and

I. Enacts section 809 to replace former section 614, subsection 4 establishing the Class E crime of unlawful dissemination of intelligence and investigative record information. In addition to restructuring the crime, section 809 adds the additional element of knowing it to be in violation. These changes make the crime parallel with section 707 addressing the unlawful dissemination of confidential criminal history record information.

Part B corrects cross-references in existing law to reflect the new Criminal History Record Information Act and the new Intelligence and Investigative Record Information Act.

Part C moves the confidentiality protection for reports of animal cruelty from the former section governing intelligence and investigative record information to the animal welfare laws in Titles 7 and 17.

Part D adds a new section 3308-A to the Maine Juvenile Code, addressing dissemination of juvenile intelligence and investigative record information by a Maine criminal justice agency.

Title 15, section 3308-A, subsection 1 contains technical terms used in that section. The terms "administration of juvenile justice," "criminal justice agency," "dissemination," "executive order," "state" and "statute" mirror the meanings found in the new Title 16, section 803, subsections 3 to 6, 8 and 9, respectively. The term "juvenile intelligence and investigative record information" has no counterpart in Title 16, section 803 because the "administration of juvenile justice" is expressly excluded from the definition of "intelligence and investigative record information" in section 803, subsection 7.

Title 15, section 3308-A, subsection 2 clarifies that, to the extent a criminal justice agency has juvenile intelligence and investigative record information that has been made part of the court records of a juvenile proceeding, dissemination of that information by the criminal justice agency must be as provided by section 3307 and section 3308.

Title 15, section 3308-A, subsection 3 clarifies that juvenile intelligence and investigative record information is confidential other than as provided in subsection 2. Additionally, subsection 3 lists certain disseminations of confidential juvenile intelligence and investigative record information that are expressly authorized. These parallel those contained in Title 16, section 805.

HP1070 LD 1493	Session - 126th Maine Legislature		LR 88 Item 1
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