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 employment or a 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.  These obligations are pursuant to the Privacy Act of 1974, Title 5, United Stated Code (U.S.C.), Section 552a, and Title 28, Code of Federal Regulations (CFR), Section 50.12, among other authorities.

  • Officials must provide to the applicant written notification[1] that his/her fingerprints will be used to check the criminal history records of the FBI.
  • Officials must ensure than an applicant receives, and acknowledges receipt of, an adequate Privacy Act Statement, when the applicant submits his/her fingerprints and associated personal information.[2]
  • Officials using the FBI criminal history record (if one exists) to make a determination of the applicant’s suitability for the employment, 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 update of an FBI criminal history record are set forth at 28 CFR 16.34.
  • Officials should not deny the employment, 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.[3]

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.

If you need additional information or assistance, contact (insert contact information for the appropriate agency, such as, CJIS Systems Agency or State Identification Bureau).

[1] Written notification includes electronic notification, but excludes oral notification.
[2] See https://www.fbi.gov/services/cjis/compact-council/privacy-act-statement
[3] 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).

updated 05/10/2017