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 § 9.1-108 of the Code of Virginia.

"Central Criminal Records Exchange" means the repository in this Commonwealth that receives, identifies, maintains, and disseminates individual criminal history records, in accordance with 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 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, information, or other formal charges and any disposition arising therefrom. The term shall not include juvenile record information which is controlled by §§ 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 those activities are carried out.

"Criminal intelligence information" means 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 that as its principal function performs the administration of criminal justice and any other agency or subunit thereof that performs criminal justice activities.

"Criminal justice information system" means a system, including the equipment, facilities, procedures, agreements, and organizations thereof, 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 Virginia Department of State Police.

"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 § 9.1-132 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).

"Partitioned or segregated separate file" means records maintained apart from the primary record system, in physical or electronic form, and structured to prevent commingling and unauthorized access.

"Seal" means to physically prevent access to a criminal history record or portion of a criminal history record.

"Sealing" means restricting the dissemination of criminal history record information contained in the Central Criminal Records Exchange, including any records relating to an arrest, charge, or conviction.

"Superintendent" means the chief administrative officer of the Virginia Department of State Police.

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, 19.2-389.3, and 19.2-392.13 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 the position's job responsibilities. These positions will be exempt from the 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, or pursuant to the limitations enumerated in §§ 19.2-389.3 and 19.2-392.13 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 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 § 9.1-136 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 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 shall refer the requester to the Central Criminal Records Exchange, which will directly provide the requester with the information. (See § 19.2-389 of the Code of Virginia.)

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 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, (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 § 19.2-389 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 information shall be reviewed to verify the record subject's identity:

(1) 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 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.

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 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 the message "UNAUTHORIZED DISSEMINATION WILL SUBJECT THE DISSEMINATOR TO CRIMINAL AND CIVIL PENALTIES" in printed form, for the following requesters:

a. Record subjects. Record subjects have a right to receive and disseminate their own criminal history record information, subject to this chapter and subdivision 11 of § 19.2-389 of the Code of Virginia. If a record subject or his attorney complies with the requirements of 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.

b. Criminal justice agencies.

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.

5. Maintaining a dissemination log. A record of 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 one year 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 that receive criminal history record information that they provide, in order to identify unauthorized releases, individual criminal justice agencies shall notify the department of any violations observed of this section. The department will investigate and respond to the violation in a manner deemed appropriate by the department.

A criminal justice agency 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 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.

A. The expungement of a criminal history record or portion thereof is only permitted on the basis of a court order, or the Department of State Police being electronically notified that an expungement order has been issued. Upon receipt of a court order, petition, and other supporting documents or electronic notification, 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, or electronically partitioned or segregated 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 OPENED 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. Upon receipt of a court order or electronic notification of the existence of an expungement order, the Department of State Police shall electronically notify those entities or individuals known to maintain or to have obtained such a record within the previous one year to remove the electronic or manual record or portion thereof from its repository and place it in a physically or electronically partitioned or segregated 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 OPENED ONLY BY COURT ORDER."

C. Procedure for expungement and sealing of electronic and hard copy records. The Department of State Police shall request an electronic receipt to confirm that those entities or individuals known to maintain or to have obtained such a record received the electronic expungement notification from the Department of State Police. Upon receiving such request, those entities or individuals shall acknowledge receiving the request and the Department of State Police shall document within their system the receipt of the acknowledgement of the electronic notification and the date and time of the confirmation.

D. Responsibility of agencies with a record to be expunged. The record named in the Virginia Department of State Police’s electronic notification shall be removed from normal access. The expunged information shall remain available, as required in section B. 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.

E. Procedure for the expungement 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 or their designee.

2. If the information to be expunged is included among other information that has not been expunged in the same electronic file, on the same form or piece of paper documents, 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 or their designee.

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 F. Procedure for expunging the expungement of automated records.

1. 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 hard disk drive, USB flash drive, or hard copy printouts. The storage of expunged records shall also be permitted in a physically or electronically partitioned or segregated separate file. 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 or their designee. No notification that expunged data exists shall be left in the normally accessed files.

2. 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 of this section, and notify the Virginia Department of State Police of their action in writing within 60 days of their receipt of the request.

F. G. 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 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.

H. Procedure for sealed records.

1. Sealing does not prohibit or limit dissemination of records within or between any department, division, board, bureau, commission, branch, authority, or other agency created by the Commonwealth, or to which the Commonwealth is a party or any political subdivision thereof, or with any federal agency, for the purpose of administering any duties or functions required by state or federal law. Law-enforcement agencies shall reply to any inquiry that no record exists with respect to an arrest, charge, or conviction that has been sealed, unless such information is permitted to be disclosed pursuant to § 19.2-392.13 of the Code of Virginia.

2. Individuals who have been convicted of or had a charge deferred and dismissed for the offenses listed in subsection A of § 19.2-392.12 of the Code of Virginia and for an offense that occurred on or after January 1, 1986, may seek to have the charge or conviction as well as any specifically identified ancillary matter related to the charge or conviction sealed through the petition process in the jurisdiction of conviction.

3. On at least a monthly basis, the Department of State Police shall electronically determine which offenses with an offense date on or after January 1, 1986, in the Central Criminal Records Exchange meet the criteria for automatic sealing. After review, the Department of State Police shall provide an electronic list of all offenses that meet the criteria for automatic sealing to the Executive Secretary of the Supreme Court and to any circuit court clerk who maintains a case management system that interfaces with the Department of State Police. The Executive Secretary of the Supreme Court shall provide an electronic list of all offenses that meet the criteria for automatic sealing to the clerk of each circuit court in the jurisdiction where the case was finalized, if such circuit court clerk participates in the case management system maintained by the Executive Secretary. The clerk of each circuit court shall prepare an order and the chief judge or presiding judge of that circuit court shall enter such order directing that the offenses meet the criteria for automatic sealing. The clerk of each circuit court shall provide an electronic notification of any order entered under the provisions of automatic sealing to the Department of State Police. Upon receipt of such electronic notification, the Department of State Police shall proceed as set forth in § 19.2-392.13 of the Code of Virginia.

4. The dissemination of sealed records shall be limited to those entities and individuals as defined in § 19.2-392.13 of the Code of Virginia.

5. Upon electronic notification that a court order for sealing has been entered pursuant to §§ 19.2-392.7, 19.2-392.10, 19.2-392.11, 19.2-392.12, or 19.2-392.12:1, or upon the sealing of an offense without a court order pursuant to §§ 19.2-392.6:1 or 19.2-392.17, the sealed record in the Central Criminal Records Exchange shall not be open for public inspection or otherwise disclosed, provided that such records may be disseminated and used for purposes outlined in § 19.2-392.13 of the Code of Virginia.

6. Upon receipt of such electronic notification of a sealed record, the Department of State Police shall electronically notify, when the contact information is reasonably available, those entities and individuals known to maintain or to have obtained such record within the previous one year that such record has been ordered to be sealed, and should not be further disseminated except as provided in §19.2-392.13. The Department of State Police shall electronically notify Law Enforcement and state agencies within the Commonwealth of all sealed record information relevant to that agency. The Department of State Police shall not be required to notify criminal justice agencies outside of the Commonwealth who obtained the criminal history record prior to the sealing order.