Final Text
[ Part I
General ]
6VAC20-120-10. Purpose. (Repealed.)
Pursuant to the provisions of §§ 9-170 1, 9-170 15, 9-170
16, 9-170 17, 9-170 21 and §§ 9-184 through 9-196 of the Code of Virginia, the
Criminal Justice Services Board hereby promulgates the following regulations
relating to Criminal History Record Information Use and Security.
The purpose of these regulations is to assure that state
and local criminal justice agencies maintaining criminal history record
information establish required record keeping procedures to ensure that
criminal history record information is accurate, complete, timely,
electronically and physically secure, and disseminated only in accordance with
federal and state legislation and regulations. Agencies may implement specific
procedures appropriate to their particular systems, but at a minimum shall
abide by the requirements outlined herein.
[ Part I ]
General
6VAC20-120-20. Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
"Access" means the ability to obtain, directly or through an intermediary, criminal history record information contained in manual or automated files.
"Board" means the Criminal Justice Services Board,
as defined in § 9-168 9.1-108 of the Code of Virginia.
"Central Criminal Records Exchange (CCRE)"
[ or "CCRE" ] means the repository in this
Commonwealth which that receives, identifies, maintains, and
disseminates individual criminal history records, in accordance with § 9-170
22 Chapter 23 (§ 19.2-387 et seq.) of Title 19.2 of the Code of
Virginia.
"Challenge" means an individual's objection to his criminal history record information.
"Conviction data" means information in the custody
of any criminal justice agency relating to a judgement judgment
of conviction, and the consequences arising therefrom, in any court.
"Correctional status information" means records and data concerning each condition of a convicted person's custodial status, including probation, confinement, work release, study release, escape, or termination of custody through expiration of sentence, parole, pardon, or court decision.
"Criminal history record information" means records
and data collected by criminal justice agencies on adult individuals consisting
of identifiable descriptions and notations of arrests, detentions, indictments,
informations information, or other formal charges and any
disposition arising therefrom. The term shall not include juvenile record
information which is controlled by Chapter 11 (§ 16.1-226 et seq.), of Title
16.1 §§ 16.1-299 and 19.2-389.1 of the Code of Virginia,
criminal justice investigative information, or correctional status information.
"Criminal history record information area" means any
office, room, or space in which criminal history record information is
regularly collected, processed, stored, or disseminated to an authorized user.
This area includes computer rooms, computer terminal workstations, file rooms,
and any other rooms or space in which the above those activities
are carried out.
"Criminal intelligence information" means information
on identifiable individuals compiled in an effort to anticipate, prevent or
monitor possible data that has been evaluated and determined to be
relevant to the identification and criminal activity of individuals or
organizations that are reasonably suspected of involvement in criminal
activity. Criminal intelligence information shall not include criminal
investigative files.
"Criminal investigative information" means information on identifiable individuals compiled in the course of the investigation of specific criminal acts.
"Criminal justice agency" means a court or any other
governmental agency or subunit thereof which that as its
principal function performs the administration of criminal justice and any
other agency or subunit thereof which that performs criminal
justice activities.
"Criminal justice information system" means a system,
including the equipment, facilities, procedures, agreements, and organizations
thereof, which that is used for the collection, processing,
preservation, or dissemination of criminal history record information.
The operations of the system may be performed manually or by using electronic
computers or other automated data processing equipment.
"Department" means the Department of Criminal Justice Services.
"Destroy" means to totally eliminate and eradicate by various methods, including, but not limited to, shredding, incinerating, or pulping.
"Director" means the chief administrative officer of the department.
"Dissemination" means any transfer of information, whether orally, in writing, or by electronic means. The term does not include access to the information by officers or employees of a criminal justice agency maintaining the information who have both a need and a right to know the information.
"Expunge" means to remove, in accordance with a
court order, a criminal history record, or a portion of a record,
from public inspection or normal access.
"Modify" means to add or delete information from a
record to accurately reflect the reported facts of an individual's criminal
history record. (See § 9-192(C) 9.1-132 of the Code of Virginia.)
This includes eradicating, supplementing, updating, and correcting inaccurate
and erroneous information.
"Noncriminal justice agencies or individuals" means those agencies or individuals authorized to receive limited criminal history record information pursuant to a specific agreement with a criminal justice agency under the provisions of subsection A of § 19.2-389 of the Code of Virginia.
"Originating agency identifier" or "ORI" means a unique nine-character designation used to identify the agency that places records in the Virginia Criminal Information Network (VCIN).
"Seal" means to physically prevent access to a
criminal history record, or portion of a criminal history record.
"Superintendent" means the chief administrative officer of the Virginia Department of State Police.
Part II
Criminal History Record Information Use
6VAC20-120-30. Applicability.
These regulations govern A. This chapter governs
originals and copies of manual or automated criminal history record information
which that are used, collected, stored, or disseminated by
a state or local criminal justice agencies or other agencies receiving
criminal history record information in the Commonwealth. The regulations
This chapter also set sets forth the required procedures
that ensure the proper processing of the expungement of criminal history record
information. The provisions of this chapter apply to the following groups,
agencies, and individuals:
1. State and local criminal justice agencies and subunits of these agencies in the Commonwealth; and
2. The United States Government or the government of another
state or its political subdivisions which that exchange such
information with criminal justice agencies in the Commonwealth, but only to the
extent of that exchange;.
3. Noncriminal justice agencies or individuals who are
eligible under the provisions of § 19.2-389 of the Code of Virginia to receive
limited criminal history record information.
B. The provisions of this chapter do not apply to:
(i) original or copied records of entry, such as police blotters maintained by
a criminal justice agency on a chronological basis and permitted to be made
public, but only if such records are not indexed or accessible by name; (ii)
offense and dispatch records maintained by a criminal justice agency on a
chronological basis and permitted to be made public, if such records are not
indexed or accessible by name or do not contain criminal history record
information; (iii) court records of public criminal proceedings, including
opinions and published compilations thereof; (iv) records of traffic offenses
disseminated to or maintained by the Department of Motor Vehicles for the
purpose of regulating the issuance, suspension, revocation, or renewal of
drivers' or other operators' licenses; (v) statistical or analytical records or
reports in which individuals are not identified and from which their identities
are not ascertainable; (vi) announcements of executive clemency; (vii) posters,
announcements, or lists for identifying or apprehending fugitives or wanted
persons; and (viii) criminal justice intelligence information; or
criminal justice investigative information.
C. Nothing in this chapter shall be construed as
prohibiting a criminal justice agency from disclosing to the public factual
information concerning the status of an investigation,; the
apprehension, arrest, release or prosecution of an individual,;
the adjudication of charges,; or the correctional status of an
individual, which is related to the offense for which the individual is
currently within the criminal justice system.
6VAC20-120-40. Collection.
A. Responsibility. Responsibility for collecting and updating criminal history record information rests with:
1. State officials and criminal justice agencies having the power to arrest, detain, or hold convicted persons in correctional facilities;
2. Sheriffs of cities or counties;
3. Police officials of cities, counties, and towns;
4. Other local law-enforcement officers or conservators of the peace who have the power to arrest for a felony (see § 19.2-390 of the Code of Virginia);
5. Clerks of court and court agencies or officers of the court; and
6. Other criminal justice agencies or agencies having criminal justice responsibilities which generate criminal history record information.
B. Reportable offenses. The above officials listed
in subsection A of this section and their representatives are required to
submit to the Central Criminal Records Exchange, on forms provided by the
Central Criminal Records Exchange, a report on every arrest they complete for:
1. Treason;
2. Felonies or offenses punishable as a misdemeanor under Title
54.1 18.2 of the Code of Virginia;
3. Class 1 and 2 misdemeanors under Title 18.2 except an arrest for a violation of Article 2 (§ 18.2-266 et seq.) of Chapter 7 of Title 18.2; a violation of Article 2 (§ 18.2-415 et seq.) of Chapter 9 of Title 18.2, or § 18.2-119; or a violation of any similar ordinance of a county, city or town.
In addition to those offenses enumerated above in
this subsection, the Central Criminal Records Exchange may receive,
classify, and file any other fingerprints and records of arrest or
confinement submitted to it by any law-enforcement agency or correctional
institution.
The chief of police, sheriff, or criminal justice agency head is responsible for establishing a system to ensure that arrest forms are completed and submitted in a timely and accurate fashion.
C. Timelines of submission.
1. Arrests. Arrest reports for all offenses noted above in
subsection B of this section, except as provided in this section, and a
fingerprint card for the arrested individual shall be forwarded to the Central
Criminal Records Exchange in accordance with the time limits specified by the
Department of State Police. A copy of the Central Criminal Records Exchange
arrest form shall also be sent to the local court (a copy of the form is
provided for the courts) at the same time.
The link between the arrest report and the fingerprint card shall be established according to Central Criminal Records Exchange requirements. Arrests that occur simultaneously for multiple offenses need only be accompanied by one fingerprint card.
2. Nonconvictions. For arrests except as noted in
subdivision 3a below, the clerk of each circuit and district court shall notify
the Central Criminal Records Exchange of the final action on a case. This
notification must always be made no more than 30 days from the date the order
is entered by the presiding judge.
3. 2. Convictions. a. For persons arrested
and released on summonses under § 19.2-74 of the Code of Virginia, the
chief law-enforcement officer or his designee, who may be the arresting
officer, shall furnish a fingerprint cards card and a
completed copy of the Central Criminal Records Exchange form to the Central
Criminal Records Exchange. The form shall be completed immediately upon
conviction unless an appeal is noted. In the case of an appeal, officials
responsible for reporting the disposition of charges shall report the conviction
within 30 days after final action of the case.
b. For arrests except as noted in subdivision 3 a above,
the clerk of each circuit and district court shall notify the Central Criminal
Records Exchange of the final action on a case. This notification must always
be made no more than 30 days after occurrence of the disposition.
4. 3. Final disposition. State correctional
officials shall submit to the Central Criminal Records Exchange the release
status of an inmate of the state correctional system within 20 days of the
release.
D. Updating and accuracy.
1. Arresting officers and court clerks noted above
in subsection A of this section are responsible for notifying the
Central Criminal Records Exchange in a timely fashion manner, and
always within 30 days, of changes or errors and necessary corrections in
arrests, convictions, or other dispositions, concerning arrests and
dispositions that the criminal justice agency originated. In the case of
correctional status or release information, correctional officials are
responsible for notifying the Central Criminal Records Exchange within the same
time limits of updates or changes in correctional status information. Forms for
updating and correcting information are provided by the Central Criminal
Records Exchange.
2. Each criminal justice agency is required to supply timely corrections of criminal history record information the agency has provided to a criminal justice or a noncriminal justice agency for a period of two years after the date of dissemination.
E. Locally maintained and nonreportable offenses. Criminal
history record information generated by a criminal justice agency and
maintained in a locally used and maintained file, including criminal history
record information on offenses not required to be reported to the Central
Criminal Records Exchange but maintained in local files, as well as criminal
history record information maintained by the Central Criminal Records Exchange,
shall adhere to the standards of collection, timeliness, updating, and
accuracy as required by these regulations this chapter. Arrests
shall be noted and convictions or adjudications recorded within 30 days of
court action or the elapse of time to appeal.
F. Except as provided in §§ 15.2-1722, 16.1-299, and 19.2-390 of the Code of Virginia, nothing contained in this article shall be construed as requiring any criminal justice agency to collect, maintain, or update criminal history record information, as defined in § 9.1-101 of the Code of Virginia, when such information is already available and readily accessible from another criminal justice agency.
6VAC20-120-50. Dissemination.
A. Authorization.
1. No criminal justice agency or individual shall confirm or deny the existence or nonexistence of a criminal history record to persons or agencies that would not be eligible to receive the information. No dissemination of a criminal history record is to be made to a noncriminal justice agency or individual if an interval of one year has elapsed from the date of arrest and no disposition of the charge has been recorded and no active prosecution of the charge is pending.
2. Criminal history record information or portions of an
individual's record both maintained and used by criminal justice agencies and
eligible recipients, maintained either at the Central Criminal Records Exchange,
or by the originating criminal justice agency, or both, shall only be
disseminated as provided by § 19.2-389 of the Code of Virginia.
3. Upon receipt of a request for criminal history record information, by personal contact, mail, or electronic means from an agency or individual claiming to be authorized to obtain such information, the person responding to the request shall determine whether the requesting agency or individual is authorized to receive criminal history record information.
4. Criminal justice agencies shall determine what
positions in their agency require regular access to criminal history record
information as part of their the position's job responsibilities.
These positions will be exempt from the dissemination rules below provisions
of subsection B of this section. Use of criminal history record information
by a member of a criminal justice agency not occupying a position authorized to
receive criminal history record information, or for a purpose or activity other
than one for which the person is authorized to receive criminal history record
information, will be considered a dissemination and shall meet the provisions
of this section. If the user of criminal history record information does not
meet the procedures in subsection B of this section, the use of the information
will be considered an unauthorized dissemination.
5. The release of criminal history record information to
an individual or entity not included in § 19.2-389 [ of the Code of
Virginia ] is unlawful and unauthorized. An individual or criminal justice
agency that releases criminal history record information to a party which does
not clearly belong to one of the categories of agencies and individuals
authorized to receive the information as outlined in § 19.2-389 of the
Code is subject to being denied access to state and national criminal
history record information on a temporary or permanent basis and to the
administrative sanctions described in 6VAC20-120-100. Unlawful dissemination
contrary to the provisions of this chapter is also a Class 2 misdemeanor (see
§ 9-195 9.1-136 of the Code of Virginia).
B. Procedures for responding to requests. A criminal justice
agency disseminating criminal history record information shall adhere to the
following regulations provisions:
1. Allowable responses to requests. Local and regional criminal justice agencies may respond to requests for criminal history record information in two ways:
a. For offenses required to be reported to the Central
Criminal Records Exchange (CCRE), they may shall refer the
requester to the Central Criminal Records Exchange, which will directly provide
the requester with the information, or shall themselves query the Central
Criminal Records Exchange to obtain the most accurate and complete information
available and provide the information to the requester. (See
§ 19.2-389 of the Code of Virginia.)
It should be noted that the Code of Virginia provides an
exception to the above mentioned procedure for responding to information
requests. The local law-enforcement agency may directly provide criminal
history record information to the requester without making an inquiry to the
Central Criminal Records Exchange or referring the requester to the Central
Criminal Records Exchange if the time is of the essence and the normal response
time of the exchange would exceed the necessary time period. (See § 19.2-389 of
the Code of Virginia.) Under circumstances where When an inquiry to
the exchange is not made, the record provided by the local law-enforcement
agency should be accompanied by an appropriate disclaimer indicating that the
record may not be complete.
b. For nonreportable offenses (i.e., those offenses not
reported to the Central Criminal Records Exchange), the law-enforcement agency
shall provide the information requested, following the dissemination procedures
as required by the regulations below subdivisions 2 through 8 of this
subsection.
2. Prior to dissemination. Prior to disseminating criminal history record information a criminal justice agency shall:
a. Verify requester identity.
(1) Individual requester. For an individual requesting his own
record and not known to the person responding to the request, the individual
shall provide proper identification, to include at least two of the following,
one of which must be a photo identification: (i) a valid passport, (ii)
drivers' license with photo, (iii) social security card, (iv) birth
certificate, or (v) military identification, or (vi) state issued
identification card with photo, if there is more than one name match.
Fingerprints or other additional information shall be required if the
disseminating criminal justice agency deems it appropriate or necessary to
ensure a match of the record and the requesting subject.
(2) Criminal justice agencies. For personnel of criminal justice agencies requesting a record, the requester shall provide valid agency identification unless the disseminator recognizes the requesting individual as having previously been authorized to receive the information for the same purpose.
(3) Noncriminal justice agencies or individuals. For an
individual requesting the record of another, as in the case of an attorney
requesting the record of his client, the individual shall provide a sworn
written request from the record subject naming the requester as a recipient, as
provided in subsection A of § 19.2-389A 19.2-389 of the
Code of Virginia. The written request shall include the full name, date of
birth, race, and sex of the record subject. Identification of the attorney
or individual shall also be required unless the attorney or individual is known
to the official responding to the request.
b. Verify record subject identity. Because serious harm could
come from the matching of criminal history record information to the wrong
individual, verification procedures shall be carefully managed, particularly
when dissemination will be to noncriminal justice recipients. The following verification
methods are the only acceptable methods information shall be reviewed to
verify the record subject's identity:
(1) Individual requesters. The verification requirements
for individuals requesting their own records and for individual requesters with
sworn requests from the subject of the information shall be the same as the
requirements for noncriminal justice agencies as described below. The
full name, date of birth, race, and sex of the record subject. Fingerprint
identification may be required prior to dissemination if there is any doubt as
to the match. If a criminal justice agency does not have the capability to
classify fingerprints, it may submit them by mail to the Central Criminal
Records Exchange. Only when the information supplied and the
information in the Central Criminal Records Exchange or local files
satisfactorily match shall information be disseminated.
(2) Criminal justice agencies. Criminal history record
information which reasonably corresponds to the name, aliases, and physical
identity of the subject can be disseminated to a legitimate requester when time
is of the essence or if criminal justice interests will be best served by the
dissemination. This includes the dissemination of records with similar but not
identical name spellings, similar physical characteristics, and similar but not
identical aliases. When criminal history record information is obtained in this
manner and results in an apparent match between the identity of the subject and
the record, the criminal history record should be verified using fingerprint
identification prior to prosecution, adjudication or sentencing of the record
subject. If a criminal justice agency does not have the capability to classify
fingerprints, it may submit them by mail to the Central Criminal Records
Exchange.
(3) Noncriminal justice agencies. Full name, date of birth,
race, and sex of the record subject must be provided by the requester for a
criminal history record to be disseminated. Fingerprint identification may be
required prior to dissemination if there is any doubt as to the match. If a
criminal justice agency does not have the capability to classify fingerprints,
it may submit them by mail to the Central Criminal Records Exchange.
Information supplied by the requester and available through the Central
Criminal Records Exchange (or in the local files where the request is for
criminal history record information maintained only locally) must match to the
satisfaction of the disseminator, or the dissemination shall not be made.
c. Notify requester of costs and restrictions. The official
responsible for aiding the requester shall notify the requester of the costs
involved and of restrictions generally imposed on use of the data, or be
reasonably assured that the requester is familiar with the costs and
restrictions, prior to beginning the search for the requested criminal history
record information, and shall obtain the consent of the requester to pay
any charges associated with the dissemination.
3. Locating and disseminating information requested. Once a
request for a criminal history record has been made, and the responsible
official is satisfied as to the legitimacy of the request and the identity of
the subject and has informed the requester of costs and restrictions, the
responsible official conducting the search for the record shall supply the
information after querying the Central Criminal Records Exchange. However, if
time is of the essence, or the offenses in a criminal history record are not
required to be reported to Central Criminal Records Exchange, the responsible
official may directly supply the information contained in the local
files on offenses not required to be reported to the Central Criminal records
Exchange (see § 19.2-389 of the Code of Virginia).
4. Instructions regarding dissemination to requesters. The
disseminated record must be accompanied by one of the three following
messages message "UNAUTHORIZED DISSEMINATION WILL SUBJECT THE
DISSEMINATOR TO CRIMINAL AND CIVIL PENALTIES" in printed form, whichever
matches the category of the requester for the following
requesters:
a. Record subjects. Record subjects have a right to receive
and disseminate their own criminal history record information, subject to these
regulations this chapter and subdivision 11 of § 19.2-389(11)
19.2-389 of the Code of Virginia. If a record subject or his attorney
complies with the requirements of these sections this section, he
shall be given the requested criminal history record information. However, if
an agency or individual receives a record from the record subject, that agency
or individual shall not further disseminate the record. The following
printed message shall accompany the criminal history record information
disseminated to a record subject:
"UNAUTHORIZED DISSEMINATION WILL SUBJECT THE
DISSEMINATOR TO CRIMINAL AND CIVIL PENALTIES."
b. Criminal justice agencies. The following printed message
shall accompany the criminal history record information disseminated to a
criminal justice agency:
"UNAUTHORIZED DISSEMINATION WILL SUBJECT THE
DISSEMINATOR TO CRIMINAL AND CIVIL PENALTIES."
c. Noncriminal justice agencies and individuals other than
record subjects. Even with the sworn consent of the record subject, only
criminal history record information that is conviction data shall be
disseminated to a noncriminal justice agency or an individual in
compliance with the existing laws and shall not be disseminated further. The
following printed message shall accompany the criminal history record
information disseminated to an individual or a noncriminal justice agency
receiving criminal history record information:
"UNAUTHORIZED DISSEMINATION WILL SUBJECT THE DISSEMINATOR
TO CRIMINAL AND CIVIL PENALTIES."
5. Maintaining a dissemination log. A record of any
dissemination all secondary disseminations shall be maintained at
the disseminating criminal justice agency or shall be accessible electronically
for a period of at least two years from the date of the dissemination.
The dissemination log must list all requests for criminal history record information. The log may be automated or manual.
Records will include the following information on each dissemination:
a. Date of inquiry;
b. Requesting agency name and address or the agency ORI;
c. Identifying name and number (either FBI or state identification number of record subject, or notification of "no record found");
d. Name of requester within the agency requesting criminal history record information; and
e. Name of disseminator (officer or civilian who provides the criminal history record information to the requester).
6. Reporting unauthorized disseminations. While individual
criminal justice agencies are not expected to audit agencies who that
receive criminal history record information that they provide, in order to
identify unauthorized releases, they individual criminal justice
agencies shall notify the department of any violations observed of the
above dissemination regulations this section. The department will
investigate and respond to the violation in a manner deemed appropriate by the
department.
A criminal justice agency which that knowingly
fails to report a violation may be subject to immediate audit of its entire
dissemination log to ensure that disseminations are being appropriately
managed.
7. Interstate dissemination. Interstate dissemination of
criminal history record information shall be subject to the procedures
described herein in this section. Dissemination to an agency
outside of the Commonwealth shall be carried out in compliance with Virginia
law and this chapter, as if the agency were within the jurisdiction of the
Commonwealth.
8. Fees. Criminal justice agencies may charge a reasonable fee
for search and copying time expended when dissemination of criminal history
record information is requested by a noncriminal justice agency or an
individual. The criminal justice agency shall post the schedule of fees to be
charged, and shall obtain approval from the requester to pay such costs
prior to initiating the search.
C. Limitations on use. Use of criminal history record information disseminated to noncriminal justice agencies shall be limited to the purposes for which the information was given and may not be disseminated further.
6VAC20-120-60. Access and review.
A. Who can review. An individual or his attorney, upon
providing proper identification and in the case of an attorney representing a
client, with a sworn written request from the record subject, shall have the
right to inspect criminal history record information being maintained on that
individual by the Central Criminal Records Exchange or other criminal justice
agencies. Completing a request form may shall be required by the
Central Criminal Records Exchange or the local criminal justice agency.
B. Review at local law-enforcement agency or central criminal records exchange.
1. An individual or his attorney may review the
individual's criminal history record information arising from arrests for
felonies and Class 1 and 2 misdemeanors maintained in the Central Criminal
Records Exchange by applying at any law-enforcement agency with
terminal capabilities on through a request to the Virginia Criminal
Information Network or to the Central Criminal Records Exchange of the Virginia
Department of State Police, during normal working hours. An individual
or his attorney may review the individual's criminal history record regarding
offenses not required to be reported to the Central Criminal Records Exchange
at the arresting law-enforcement agency.
2. The law-enforcement agency to which the request is directed shall inform the individual or his attorney of the procedures associated with the review.
3. Individuals shall be provided, at cost, one copy of their record. If no record can be found, a statement shall be furnished to this effect.
C. Timeliness and completeness.
1. An individual requesting his own record shall be advised when the record will be available. In no case shall the time between request and availability of the record exceed one week, except where fingerprint identification is required; then it shall not exceed 30 days. Criminal justice agencies should seek to provide the record as soon as reasonably possible unless there are questions of identification.
2. The criminal justice agency locating an individual's
criminal history record information shall examine its own files and shall
contact the Central Criminal Records Exchange for the most up-to-date
criminal history record information, and supply both the
criminal history record information to the requester.
D. Assistance.
1. The criminal justice agency to which the request is directed shall provide reasonable assistance to the individual or his attorney to help understand the record.
2. The official releasing the record shall also inform the individual of his right to challenge the record.
6VAC20-120-70. Challenge.
A. Individuals who desire to challenge their own
criminal history record information must complete documentation provided by the
criminal justice agency maintaining the record and forward it to the Central Criminal
Records Exchange or the criminal justice agency maintaining the record. A
duplicate copy of the form and the challenged record may be maintained by the
individual initiating the challenge or review. The individual's record
concerning arrests for felonies and Class 1 and 2 misdemeanors may be
challenged at the Central Criminal Records Exchange or the criminal justice
agency maintaining the record of the Department of the State Police.
For offenses not required to be reported to the Central Criminal Records
Exchange, the challenge shall be made at the arresting law-enforcement agency
or the criminal justice agency maintaining the records.
A challenge will be processed as described below.
A. Record B. A challenge to a record maintained
by the Central Criminal Records Exchange. will be processed as
follows:
1. Message flags. If the challenge is made of a record maintained by the Central Criminal Records Exchange, both the manual and the automated record shall be flagged with the message "CHALLENGED RECORD." A challenged record shall carry this message when disseminated while under challenge.
2. Review at exchange. The Central Criminal Records Exchange
shall compare the information contained in the repository files as reviewed by
the individual with the original arrest or disposition form. If no error is
located, the Central Criminal Records Exchange (i) shall forward a copy
of the challenge form, a copy of the Central Criminal Records Exchange record,
and other relevant information to the criminal justice agency or agencies which
the Central Criminal Records Exchange records indicate as having originated the
information under challenge, and (ii) shall request them to
examine the relevant files to determine the validity of the challenge.
3. Examination. The criminal justice agency or agencies
responsible for originating the challenged record shall conduct an examination
of their source data, the contents of the challenge, and information supplied
by the Central Criminal Records Exchange for any discrepancies or errors,
and shall advise the Central Criminal Records Exchange of the results of the
examination.
4. Correction. If any modification of a Central Criminal
Records Exchange record is required, the Central Criminal Records
Exchange shall modify the record and shall then notify the criminal justice
agency in which the record was originally reviewed of its action, and
supply it and other agencies involved in the review with a copy of the
corrected record.
5. Notification by Central Criminal Records Exchange. The Central Criminal Records Exchange shall also provide notification of the correction to all recipients of the record within the last 24 months.
6. Notification by other criminal justice agencies. Criminal
justice agencies which that have disseminated an erroneous or
incomplete record shall in turn notify agencies which that have
received the disseminated record or portion of the record in the last two years
from the date of the Central Criminal Records Exchange modifications of the
records. Notification shall consist of sending a copy of the original record,
and corrections made, to the recipients of the erroneous record noted in
the dissemination log for the two-year period prior to the date of correction
by the Central Criminal Records Exchange. (See § 9- 192 C 9.1-132
of the Code of Virginia.) The criminal justice agency in which the review and
challenge occurred shall notify the individual or his attorney of the action of
Central Criminal Records Exchange.
7. Appeal. The record subject or his attorney, upon being told of the results of his record review, shall also be informed of his right to review and appeal those results.
B. Record C. A challenge to a record maintained
by a criminal justice agency other than the central Criminal Records Exchange.
will be processed as follows:
1. Message flags. If a challenge is made of a record maintained by a criminal justice agency, both the manual and the automated record shall be flagged with the message "CHALLENGED RECORD." A disseminated record shall contain this message while under challenge.
2. Examination and correction agency. If the challenged record
pertains to the criminal justice agency's arrest information, the arresting
agency shall examine the relevant files to determine the vailidity validity
of the challenge. If the review demonstrates that modification is in order, the
modification shall be completed and the erroneous information destroyed. If the
challenged record pertains to the disposition information, the arresting agency
shall compare contents of the challenge with information originally supplied by
the clerk of the court.
3. Review by Clerk clerk of Court court.
If no error is found in the criminal justice agency's records, the arresting
agency shall forward the challenge to the clerk of the court that who
submitted the original disposition. The clerk of the court shall examine the
court records pursuant to the challenge and shall, in turn, notify the
arresting agency of its findings. The arresting agency shall then proceed as
described in [ subsection ] B [ subdivision ]
C 2 of this section.
4. Notification. The criminal justice agency in which the
challenge occurred shall notify the individual or his attorney of the action
taken, and shall notify the Central Criminal Records Exchange and other
criminal justice agencies receiving the erroneous information of the necessary
corrections if required, as well as the noncriminal justice agencies to which
it has distributed the information in the last 24 months, as noted in its
dissemination log.
5. Correction. The Central Criminal Records Exchange will
correct its records, and notify agencies that received erroneous
information within the past 24 months. The agencies will be requested to
correct their files and to notify agencies which that have the
disseminated information, as provided in [ subsection ] A
[ subdivision ] B 6 of this section.
6. Appeal. The record subject or his attorney, upon receiving the results of the record review, shall be informed of the right to review and appeal.
C. D. Administrative review of challenge
results.
1. Review by criminal justice agency head. After the aforementioned
review and challenge, in accordance with this section, concerning a record
either in the Central Criminal Records Exchange or another criminal justice
agency, the individual or his attorney may, within 30 days,
request in writing that the head of the criminal justice agency in which the
challenge was made, review the challenge if the individual is not
satisfied with the results of the review and challenge.
2. Thirty-day review. The criminal justice agency head or his
designated official shall review the challenge by reviewing the action taken by
the agency, the Central Criminal Records Exchange, and other criminal justice
agencies, and shall notify the individual or his attorney in writing of
the decision within 30 days of the receipt of the written request to review the
challenge. The criminal justice agency head shall also notify the individual of
the option to request an administrative appeal through the department within 30
days of the postmarked date of the notification of the decision. This
notification of the appeal shall include the address of the Department of Criminal
Justice Services.
3. Correction and notification. If required, correction and
notification shall follow the procedures outlined in subsections A B
and B C of this section.
4. Notification of the department. A copy of the notice
required in subsection C subdivision D 2 of this section shall be
forwarded to the department by the criminal justice agency at the same time it
is provided to the individual.
D. E. Administrative appeal.
1. Departmental assessment. The individual or his attorney challenging his record, within 30 days of the postmark of his notification of the decision of the administrative review, may request that the Director of the Department of Criminal Justice Services review the challenge and conduct an informal hearing. The director may designate a hearing officer for this purpose.
2. Determination of merits of case. The director of or
his designee shall contact the criminal justice agencies involved and request
any and all information needed. Criminal justice agencies shall supply the information
requested in a timely manner, to allow the department to respond to the
individual within 30 days. The director will then rule on the merits of a
hearing and notify the individual or his attorney that such hearing will or
will not be held.
3. Hearing. The hearing, if held, shall be conducted within 30 days of the receipt of the request, and the decision of the hearing officer communicated to the individual or his attorney within 30 days of the hearing.
4. Finding. If the director or the hearing officer determines
that correction and modification of the records are required, correction of the
record and notification of all involved parties shall proceed according to the
procedures outlined in subsections A B and B C of
this section.
5. Removal of a challenge designation. When records and relevant action taken by the criminal justice agencies involved are deemed to be correct, the department shall notify the affected criminal justice agencies to remove the challenge designation from their files.
E. F. Department notification following
corrections. For audit purposes, the Central Criminal Records Exchange shall
annually forward the names and addresses of the agencies which that
originated erroneous record information or received erroneous information from
the exchange in that year to the Department of Criminal Justice Services.
6VAC20-120-80. Expungement and sealing.
A. Responsibility of the Superintendent of the Virginia
Department of State Police. The expungement of a criminal history record or
portion thereof is only permitted on the basis of a court order. Upon receipt of
a court order, petition, and other supporting documents for the
expungement of a criminal history record, the superintendent, pursuant to §
19.2-392.2 of the Code of Virginia, shall by letter with an enclosed copy of
the order, direct the Central Criminal Records Exchange and those
agencies and individuals known to maintain or to have obtained such a record,
to remove the electronic or manual record or portion thereof from its
repository and place it in a physically sealed, separate file. The file shall be
properly indexed to allow for later retrieval of the record if required by
court order, and the record shall be labeled with the following designation:
"EXPUNGED RECORD TO BE UNSEALED ONLY BY COURT ORDER."
B. Responsibility of agencies with a record to be expunged. The record named in the Virginia Department of State Police's letter shall be removed from normal access. The expunged information shall be sealed but remain available, as the courts may call for its reopening at a later date. (See § 19.2-392.3 of the Code of Virginia.) Access to the record shall be possible only through a name index of expunged records maintained either with the expunged records or in a manner that will allow subsequent retrieval of the expunged record as may be required by the court or as part of the department's audit procedures. Should the name index make reference to the expunged record, it shall be apart from normally accessed files.
C. Procedure for expungement and sealing of electronic and hard copy records.
1. The expungement and sealing of hard copy original records of
entry (arrest forms) is accomplished by physically removing them from a file,
and filing them in a physically secure location elsewhere, apart from normally
accessed files. This file should be used only for expunged records and should
be accessible only to the manager of records.
2. If the information to be expunged is included among other information that has not been expunged on the same form or piece of paper, the expunged information shall be obliterated on the original or the original shall be retyped eliminating the expunged information. The expunged information shall then be placed in the file for expunged records, in its original or copied form, and shall be accessible only to the manager of records.
3. If the expunged information is located on a criminal history record provided by the Central Criminal Records Exchange (i.e., "RAP sheet"), the criminal history record information shall be destroyed, and a new copy, not containing the expunged data, shall be obtained when necessary.
D. Procedure for expunging automated records. Should the
record to be expunged be maintained in an automated system, the Central
Criminal Record Exchange or the agency known to possess such a record shall
copy the automated record onto an off-line medium such as [ tape, disk hard
disk drive, USB flash drive ], or hard copy printouts. The expunged
record, regardless of the type of medium on which it is maintained, shall then
be kept in a file used for expunged records and sealed from normal use,
accessible only to the manager of records. No notification that expunged data
exists shall be left in the normally accessed files.
Notwithstanding any other provisions of this section, any imaged case records maintained in any circuit court, general district court, or juvenile and domestic relations district court case imaging system operated by the Office of the Executive Secretary for the Supreme Court of Virginia that are to be expunged may be transferred to a confidential and secure area inaccessible from normal use within the case imaging system and shall be considered sealed. Access to the expunged, imaged case records shall be limited to the manager of records for the court with the exception of designated staff within the Office of the Executive Secretary who are responsible for the operation of such case imaging systems and have access to the confidential and secure area for the discrete purpose of providing the manager of the records access to the secure area. No notification that expunged data exists shall be left in the normally accessed case imaging system. Any related records that are maintained in an electronic order book shall also be deleted.
E. Department to be notified following expungement. Upon
receipt of a request from the Virginia Department of State Police to expunge
and seal a record, the affected agency or agencies shall perform the steps above
of this section, and notify the Virginia Department of State Police of
their action in writing within 120 60 days of their receipt of
the request.
F. Expungement order not received by department. Should a
court ordered expungement be directed to a criminal justice agency other than
the Virginia Department of State Police, the directed criminal justice agency
shall comply as outlined herein in this section and advise the
superintendent without delay of such order. The superintendent shall, upon
receipt of such notification, obtain a copy of the order from the appropriate
circuit court.
6VAC20-120-100. Administrative sanctions.
Discovery of violations or failure to comply with this chapter in whole or in part will occasion the following sanctions. Additional criminal penalties and other sanctions may be invoked as provided in 6VAC20-120-50 should the violation involve an unauthorized dissemination.
A. 1. Law-enforcement agencies.
1. a. Should a law-enforcement agency fail to
comply with this chapter, a letter will be forwarded by the Department department
to either the chief of police or sheriff, citing the problem and notifying the
police department or the sheriff's department that the matter will be referred
to the chief official of the locality or local commonwealth's attorney,
respectively, if a satisfactory result is not forthcoming. The criminal justice
agency shall have 10 working business days to respond with a
letter describing how the situation was remedied or explaining why there is no
need to do so.
2. b. Should there be no satisfactory response
after the 10 working business day period, the matter will be
referred to the offices of the city, county, or town manager or the
local commonwealth's attorney requesting resolution of the matter within 30
days.
3. c. If 30 days have passed and the matter
fails to be resolved to the satisfaction of the department, the matter will be
referred to the Criminal Justice Services Board and the Office of the Attorney
General for action.
B. 2. Courts.
1. a. Should a court or officer of the court
fail to comply with these regulations this chapter, a letter will
be forwarded by the department to the court, citing the problem and notifying
the court clerk that the matter will be referred to the chief judge of the
locality and the local commonwealth's attorney if a satisfactory result is not
forthcoming. The court shall have 10 working business days to
respond with a letter describing how the situation was remedied or explaining
why there is no need to do so.
2. b. Should there be no satisfactory response
after the 10 working business day period, the matter will be
referred to the chief judge requesting resolution of the matter within 30 days.
The Executive Secretary of the Supreme Court of Virginia will also be notified.
3. c. If 30 days have passed and the matter
fails to be resolved to the satisfaction of the department, the matter will be
referred to the Criminal Justice Services Board and the Chief Justice of
Virginia.
Part III
Criminal History Record Information Security
6VAC20-120-110. Applicability.
These regulations are A. This chapter is
applicable to criminal justice information systems operated within the
Commonwealth of Virginia. These regulations on security are not applicable to
court records or other records expressly excluded by § 9-184, B 9.1-126
of the Code of Virginia.
These regulations establish B. This part establishes
a minimum set of security standards which that shall apply to any
manual or automated recordkeeping system which that collects,
stores, processes, or disseminates criminal history record information.
C. Where individuals or noncriminal justice agencies
are authorized to have direct access to criminal history record information
pursuant to a specific agreement with a criminal justice agency to provide
service required for the administration of criminal justice, the service
support agreement will embody the restrictions on dissemination and the security
requirements contained in these regulations this chapter and the
Code of Virginia.
6VAC20-120-120. Responsibilities.
A. In addition to those responsibilities mandated by
state and federal laws, the Department of State Police shall have the
responsibility for the implementation of these regulations this
chapter in regard to the operation of the Central Criminal Records
Exchange.
B. The implementation of these regulations this
chapter, except as set forth in [ the ] above paragraph
subsection A of this section, shall be the responsibility of the
criminal justice agency as designated and authorized by the county or
municipality in cases of political subdivisions. Nothing in these
regulations this chapter shall be deemed to affect in any way the
exercise of responsibility conferred on counties and municipalities of the
state under Title [ 15.1 15.2 ] of the Code of
Virginia. The determination of the suitability of the actual procedures
instituted by the criminal justice agency will be the subject of study in any
audit by the department, mandated by § 9-186 9.1-131 of the Code
of Virginia.
6VAC20-120-130. Physical access.
A. Access to areas in which criminal history record
information is collected, stored, processed, or disseminated shall be
limited to authorized persons. Control of access shall be ensured through the
use of locks, guards, or other appropriate means. Authorized personnel
shall be clearly [ indentified identified ].
B. Procedures shall be established to detect an
unauthorized attempt or access. Furthermore, a procedure shall be established
to be followed in those cases in which an attempt or unauthorized access is
detected. Such procedures shall become part of the orientation of employees
working in criminal history record information area(s) area or areas
and shall be reviewed periodically to ensure their effectiveness.
C. Criminal justice agencies shall provide direct access to criminal history record information only to authorized officers or employees of a criminal justice agency and, as necessary, other authorized personnel essential to the proper operation of the criminal history record information system.
D. Criminal justice agencies shall institute, where
computer processing is not utilized, procedures to ensure that an individual or
agency authorized to have direct access is responsible for: (i) the
physical security of criminal history record information under its control or
in its custody, and (ii) the protection of such information from
unauthorized access, disclosure, or dissemination.
E. Procedures shall be instituted to protect any central repository of criminal history record information from unauthorized access, theft, sabotage, fire, flood, wind, or other natural or man-made disasters.
F. For criminal justice agencies that have their criminal history files automated, it is highly recommended that "backup" copies of criminal history information be maintained, preferably off-site. Further, for larger criminal justice agencies having automated systems, it is recommended that the criminal justice agencies develop a disaster recovery plan. The plan should be available for inspection and review by the department.
G. System specifications and documentation shall be carefully controlled to prevent unauthorized access and dissemination.
6VAC20-120-140. Personnel.
In accordance with applicable law, ordinances, and regulations, the criminal justice agency shall:
A. 1. Screen and have the right to reject for
employment, based on good cause, personnel to be authorized to have direct access
to criminal history record information;
B. 2. Have the right to initiate or cause to be
initiated administrative action leading to the transfer or removal of personnel
authorized to have direct access to this information where these personnel
violate the provisions of these regulations this chapter or other
security requirements established for the collection, storage, or dissemination
of criminal history record information; and
C. 3. Ensure that all employees working
with or having access to criminal history record information shall be made
familiar with the substance and intent of these regulations this
chapter. Designated employees shall be briefed on their roles and
responsibilities in protecting the information resources in the criminal
justice agency. Special procedures connected with security shall be reviewed
periodically to ensure their relevance and continuing effectiveness.
6VAC20-120-160. Computer operations.
A. Where computerized data processing is employed, effective and technologically advanced software and hardware design shall be instituted to prevent unauthorized access to this information.
B. Computer operations, whether dedicated or shared, which
that support criminal justice information systems shall operate in
accordance with procedures developed or approved by the participating criminal
justice agencies.
C. Criminal history record information shall be stored by the computer in such a manner that it cannot be modified, destroyed, accessed, changed, purged, or overlaid in any fashion by noncriminal justice terminals.
D. Operational programs shall be used that will
prohibit inquiry, record updates, or destruction of records, from
terminals other than criminal justice system terminals which that
are so designated.
E. The destruction of record shall be limited to designated terminals under the direct control of the criminal justice agency responsible for creating or storing the criminal history record information.
F. Operational programs shall be used to detect and log all unauthorized attempts to penetrate criminal history record information systems, programs, or files.
G. Programs designed (i) for the purpose of
prohibiting unauthorized inquiries, unauthorized record updates, or
unauthorized destruction of records, or (ii) for the detection
and logging of unauthorized attempts to penetrate criminal history record
information systems shall be known only to the criminal justice agency
employees responsible for criminal history record information system control or
individuals and agencies pursuant to a specific agreement with the criminal
justice agency to provide such security programs. The program(s) program
or programs shall be kept under maximum security conditions.
H. Criminal justice agencies having automated criminal
history record files should shall designate a system
administrator to maintain and control authorized user accounts, system management,
and the implementation of security measures.
I. The criminal justice agency shall have the right to
audit, monitor, and inspect procedures established pursuant to these rules
and regulations this chapter.