The FBI Office of the General Counsel (OGC), Criminal Justice Information Law Unit (CJILU) reviews state statutes seeking access to FBI criminal history record information (CHRI) for licensing and employment purposes pursuant to Public Law (Pub. L.) 92-544, codified at Title 34 United States Code Section 41101.

State agencies wishing to submit statutes for review must work through their State Identification Bureau or appointed CJIS systems officer.

Public Law (Pub. L.) 92-544 Criteria

As you may be aware, the FBI’s authority to collect and exchange criminal history record information (CHRI) is generally predicated upon 28 U.S.C. 534. Prior to 1971, the FBI exchanged records with federal, state and local agencies for both criminal and noncriminal justice use; however, this practice was altered by Menard v. Mitchell, 328 F. Supp. 718 (D.D.C. 1971), in which the district court determined that "Congress never intended to or in fact did authorize dissemination of arrest records to any state or local agency for purposes of employment or licensing checks." 328 F. Supp. at 726.

In response to Menard, in December 1971, Congress enacted P. L. No. 92-184, 85 Stat. 627, 642 (1971), which authorized the exchange of FBI identification records with officials of federally chartered or insured banking institutions to maintain the security of those institutions, and, if authorized by state statute approved by the Attorney General, to officials of state and local governments for purposes of employment and licensing. This statute was superseded in 1972 by Pub. L. 92-544, 86 Stat. 1115 (1972), which states:

The funds provided for Salaries and Expenses, Federal Bureau of Investigation, may be used hereafter, in addition to those uses authorized thereunder, for the exchange of identification records with officials of federally chartered or insured banking institutions to promote or maintain the security of those institutions, and, if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing, any such exchange to be made only for the official use of any such official and subject to the same restriction with respect to dissemination as that provided for under the aforementioned appropriation. (The referenced provision in the appropriation bill admonishes that “such exchange to be subject to cancellation if dissemination is made outside the receiving departments or related agencies,” and that restriction is incorporated into the licensing and employment provisions of Pub. L. 92-544.)

Since 1972, the FBI, with the assistance of the United States Department of Justice, has determined the parameters of Pub. L. 92-544. The criteria are as follows:

a. The statute must exist as a result of a legislative enactment;

b. It must require the fingerprinting of applicants who are to be subjected to a national criminal history background check;

c. It must, expressly (“submit to the FBI”) or by implication (“submit for a national check”), authorize the use of FBI records for the screening of applicants;

d. It must identify the specific category(ies) of licensees/employees falling within its purview, thereby avoiding overbreadth;

e. It must not be against public policy; and

f. It may not authorize receipt of the CHRI by a private entity.

Additionally, FBI policy requires that fingerprints be initially submitted to the state identification bureau (for a check of state records) and thereafter forwarded to the FBI for a “national” criminal history check.