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Agency Privacy Requirements for Noncriminal Justice Applicants

Agency Privacy Requirements for Noncriminal Justice Applicants

Agency Privacy Requirements for Noncriminal Justice Applicants

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Authorized governmental and non-governmental agencies/officials that conduct a national fingerprint-based criminal history record check on an applicant for a noncriminal justice purpose (such as a job or license, immigration or naturalization matter, security clearance, or adoption) are obligated to ensure the applicant is provided certain notice and other information and that the results of the check are handled in a manner that protects the applicant’s privacy.

  • Officials must provide to the applicant written notice1 that his/her fingerprints will be used to check the criminal history records of the FBI.
  •  Officials using the FBI criminal history record (if one exists) to make a determination of the applicant’s suitability for the job, license, or other benefit must provide the applicant the opportunity to complete or challenge the accuracy of the information in the record.
  • Officials must advise the applicant that procedures for obtaining a change, correction, or updating of an FBI criminal history record are set forth at Title 28, Code of Federal Regulations (CFR), Section 16.34.
  • Officials should not deny the job, license, or other benefit based on information in the criminal history record until the applicant has been afforded a reasonable time to correct or complete the record or has declined to do so.
  • Officials must use the criminal history record solely for the purpose requested and cannot disseminate the record outside the receiving department, related agency, or other authorized entity.2

The FBI has no objection to officials providing a copy of the applicant’s FBI criminal history record to the applicant for review and possible challenge when the record was obtained based on positive fingerprint identification. If agency policy permits, this courtesy will save the applicant the time and additional FBI fee to obtain his/her record directly from the FBI by following the procedures found at 28 CFR 16.30 through 16.34. It will also allow the officials to make a more timely determination of the applicant’s suitability. 

Each agency should establish and document the process/procedures it utilizes for how/when it gives the applicant notice, what constitutes “a reasonable time” for the applicant to correct or complete the record, and any applicant appeal process that is afforded the applicant. Such documentation will assist state and/or FBI auditors during periodic compliance reviews on use of criminal history records for noncriminal justice purposes.

Endnotes

1 Written notification includes electronic notification, but excludes oral notification. 

2 See 5 U.S.C. 552a(b); 28 U.S.C. 534(b); 42 U.S.C. 14616, Article IV(c); 28 CFR 20.21(c), 20.33(d), 50.12(b) and 906.2(d).