Certified Final Objection No. 17 of the

Joint Legislative Committee on Administrative Rules

At its meeting on November 8, 1990, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a preliminary objection to Final Proposal 90-224, containing proposed rules of the State of New Hampshire Department of Safety, Division of State Police, (Director) relative to the operation of the central repository for criminal records. The Director responded by letter dated November 16, 1990, by amending some of the proposed rules to address some of the Committee's concerns.

At its meeting on January 10, 1991 the Committee voted, pursuant to RSA 541-A:3-e., V(c), to make a final objection to several aspects of the rules in Final Proposal 90-224. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:3-e, VI:

After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for-judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

The following outlines the rule to which the Committee objects and the reason for the final objection:

1. Saf-P 402.01 and Saf-P 402.06(a)

The Committee objected that rules Saf-P 402.01 and Saf-P 402.06(a) violate Committee Rule 402.02 and 401.01(c) as they are contrary to legislative intent by conflicting with RSA 106-B:14, I, and beyond the authority of the Director.

Saf-P 402.01 provides that the various law enforcement agencies of the state are required to submit "fingerprint cards for each individual arrested by their respective departments, for any felony or misdemeanor other than motor vehicle offenses." Saf-P 402.06(a) requires that clerks of court "shall report the pleaÖof any individual brought before the court on a felony, misdemeanor or violation charge other than a motor vehicle offense, to the Division of State Police as soon as possible." The statute that creates this repository, RSA 106-B:14, requires that the Director adopt rules necessary to secure records and other information relative to convicted felons, those convicted of attempting felonies, those who are known to be habitual criminals, and those who have been placed under arrest in criminal proceedings. The statute does not distinguish between those who have been arrested for motor vehicle offenses and those who have been arrested for non-motor vehicle offenses; it merely requires that the information be obtained regarding all "who have been placed under arrest in criminal proceedings." There appears, to the Committee, to be no authority to treat this category of arrestees in a different manner.

2. Saf-P 402.03 and Saf-P 402.04

The Committee objected that rules Saf-P 402.03 and Saf-P 402.04 violate Committee Rule 401.01(c) as they are beyond the authority of the Director.

Saf-P 402.03 provides that "in addition to the card required in Saf-P 402.02, all such law enforcement agencies shall take fingerprints on an FBI card as supplied by the federal bureau of investigation." The second rule, Saf-P 402.04, requires that "the arresting law enforcement agency shall take the fingerprints and complete the information required on the final disposition sheet as supplied by the federal bureau of investigation."

The statute creating this central repository for criminal records does not authorize the Director to require that information gathered for the repository be sent to the FBI. The statute specifically provides that "such records and information shall not be open to the inspection of any person except those who may be authorized to inspect same by the Director." Thus, the Director could authorize persons from the FBI to inspect the records, but inspection" implies to the Committee that the records will be kept and maintained by the Director. The rules do not state, however, that the FBI and its agents shall be authorized to inspect the records created in the format specified by the Director and maintained under his authority. Instead, the rules provide that a record will be created in the format and containing the information specified by the FBI, and that this is to be done in addition to the fingerprint cards required for state police use. The FBI fingerprint cards will not remain in the repository, but-will be forwarded to the FBI for their records. This is very different from mere "inspection" by an authorized person.

3. Saf-P 403.05

The Committee objected that rule Saf-P 403.05 violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule concerns the dissemination of criminal record history information. The problem with this section is that the unnumbered paragraph, subparagraphs (a)(1) and (a)(4), and paragraph (b) all contain language similar to "with the approval of the director" but do not indicate what criteria will be applied, or how, in deciding to grant or deny approval.

4. Saf-P 403.06(c)

The Committee objected that rule Saf-P 403.06(c) violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule provides that the Director or his designee must respond to requests for the dissemination of data within a certain time and the "the response shall authorize or deny the release of the requested information." The problem is that the rules contain no criteria for the Director to use in deciding to grant or deny such requests.

5. Saf-P 403.06(d) and Saf-P 403.05(b)

The Committee objected that rules Saf-P 403.06(d) and Saf-P 403.05(b) violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

Saf-P 403.06(d) provides that if a request for information is approved, "the only information that shall be released is statistical." However, Saf-P 403.05(b) allows the dissemination of conviction data to "any individual or business checking background information on prospective employees as a matter of ensuring public safety or well being." It is unclear to the Committee how the two rules may be read together without their conflicting.

6. Saf-P 403.07

The Committee objected that rule Saf-P 403.07 violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule requires that "each individual or agency to whom CRHI is disseminated shall also be given notice advising of the necessity to protect the information and prevent it from dissemination to any other agency or individual who is not also authorized by the Director to receive such information." The rule does not indicate what the "necessity" is or what action the Division would take against an individual or agency for failing to prevent its dissemination to those who are not "authorized."

7. Saf-P 403.11

The Committee objected that rule Saf-P 403.11 violates Committee Rules 403.01(d), 403.02(c), 402.02 and 401.01(c) as it is contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3 and by conflicting with RSA 106-B:13 relative to fingerprinting only those taken into custody, and is beyond the authority of the Director.

The rule requires that individuals who wish to review their records maintained in the repository must provide identification as to his or her identity prior to being granted access. Paragraph (b) requires that" the state police shall verify identity by means of a driverís license or photo identification card" but that "if any doubt exists, fingerprint verification [shall] be required." However, RSA 106-B:13 allows the Divisionís employees to fingerprint only those "persons taken into custody by them in the discharge of their duties." Thus, unless such person had been taken into the custody of a Division employee, there does not appear to the Committee to be any statutory authority to fingerprint persons who are merely seeking to inspect records.