February 8, 2013





HOUSE BILL No. 1392

_____


DIGEST OF HB 1392 (Updated February 6, 2013 6:11 pm - DI 69)



Citations Affected: IC 24-4; IC 34-28.

Synopsis: Restricting criminal background checks. Specifies that the clerk of a court is not a "criminal history provider". Permits a criminal history provider to provide certain information relating to an incident that did not result in a conviction. Provides that a criminal history provider may provide information concerning expunged, restricted, or reduced convictions to a person required by law to obtain this information. Specifies that a criminal history provider does not violate the requirement to provide current information if the public records used to obtain the information are not current. Provides that a violation of these requirements is a deceptive act. Repeals a provision requiring a clerk to restrict disclosure of an infraction five years after it has been satisfied and permits a person to petition a court to restrict disclosure of an infraction five years after it has been satisfied. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

Effective: July 1, 2013.





Steuerwald, DeLaney




    January 22, 2013, read first time and referred to Committee on Courts and Criminal Code.
    February 7, 2013, reported _ Do Pass.






February 8, 2013

First Regular Session 118th General Assembly (2013)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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HOUSE BILL No. 1392



    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 24-4-18-1; (13)HB1392.1.1. -->     SECTION 1. IC 24-4-18-1, AS ADDED BY P.L.69-2012, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 1. (a) As used in this chapter, "criminal history information" means information:
        (1) concerning a criminal conviction in Indiana; and
        (2) available in records kept by a clerk of a circuit, superior, city, or town court with jurisdiction in Indiana.
    (b) The term consists of the following:
        (1) Identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges.
        (2) Information, including a photograph, regarding a sex or violent offender (as defined in IC 11-8-8-5) obtained through sex or violent offender registration under IC 11-8-8.
        (3) Any disposition, including sentencing, and correctional system intake, transfer, and release.
        (4) A photograph of the person who is the subject of the information described in subdivisions (1) through (3).
    (c) The term includes fingerprint information described in IC 10-13-3-24(f).
SOURCE: IC 24-4-18-2; (13)HB1392.1.2. -->     SECTION 2. IC 24-4-18-2, AS ADDED BY P.L.69-2012, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 2. (a) As used in this section, "criminal history provider" means a person or an organization that assembles compiles a criminal history reports report and either uses the report or provides the report to a person or an organization other than a criminal justice agency, or a law enforcement agency, or another criminal history provider.
    (b) The term does not include the following:
        (1) A criminal justice agency.
        (2) A law enforcement agency.
        (3) Any:
            (A) person connected with or employed by:
                (i) a newspaper or other periodical issued at regular intervals and having a general circulation; or
                (ii) a recognized press association or wire service;
            as a bona fide owner, editorial or reportorial employee, who receives income from legitimate gathering, writing, editing, and interpretation of news;
            (B) person connected with a licensed radio or television station as an owner or official, or as an editorial or reportorial employee who receives income from legitimate gathering, writing, editing, interpreting, announcing, or broadcasting of news; or
            (C) other person who gathers, records, compiles, or disseminates:
                (i) criminal history information; or
                (ii) criminal history reports;
            solely for journalistic, academic, governmental, or legal research purposes.
         (4) The clerk of a circuit, superior, city, or town court.
SOURCE: IC 24-4-18-3; (13)HB1392.1.3. -->     SECTION 3. IC 24-4-18-3, AS ADDED BY P.L.69-2012, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 3. (a) As used in this section, "criminal history report" means criminal history information that has been compiled primarily for the purposes of evaluating a particular person's eligibility for:
        (1) character; or
        (2) eligibility for:
        (A) (1) employment in Indiana;
        (B) (2) housing in Indiana; or
        (C) (3) participation in any activity or transaction. a license, permit, or occupational certification issued under state law; or
         (4) insurance, credit, or another financial service, if the insurance, credit, or financial service is to be provided to a person residing in Indiana.
     (b) The term does not include information compiled primarily for the purpose of journalistic, academic, governmental, or legal research.
    (c) The term includes information described in subsection (a) and not excluded under subsection (b), regardless of the geographical location of the person who compiled the information.

SOURCE: IC 24-4-18-6; (13)HB1392.1.4. -->     SECTION 4. IC 24-4-18-6, AS ADDED BY P.L.69-2012, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 6. (a) A criminal history provider may provide only criminal history information that relates to a conviction.
    (b) Except as provided in subsection (b), a criminal history provider may not knowingly provide information a criminal history report that provides criminal history information relating to the following:
        (1) An infraction, an arrest, or a charge that did not result in a conviction.
        (2) (1) A record that has been expunged by:
            (A) marking the record as expunged; or
            (B) removing the record from public access.

        (3) (2) A record that is restricted by a court or the rules of a court and is marked as restricted from public disclosure or removed from public access.
        (4) (3) A record indicating a conviction of a Class D felony if the Class D felony conviction:
            (A) has been entered as a Class A misdemeanor conviction; or
            (B) has been converted to a Class A misdemeanor conviction.
        (5) (4) A record that the criminal history provider knows is inaccurate.
     (b) A criminal history provider may provide information described in subsection (a)(1) through (a)(3) if the person requesting the criminal history report is:
        (1) required by state or federal law
to obtain the information; or
        (2) the state or a political subdivision, and the information will be used solely in connection with the issuance of a public

bond.

SOURCE: IC 24-4-18-7; (13)HB1392.1.5. -->     SECTION 5. IC 24-4-18-7, AS ADDED BY P.L.69-2012, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 7. (a) A criminal history provider may not knowingly include criminal history data information in a criminal history report if the criminal history data information has not been updated to fails to reflect material changes to the official record occurring sixty (60) days or more before the date the criminal history report is delivered.
     (b) A criminal history provider that provides a criminal history report and fails to reflect material criminal history information does not violate this section if the material criminal history information was not contained in the official record at least sixty (60) days before the date the criminal history report is delivered.
SOURCE: IC 24-4-18-8; (13)HB1392.1.6. -->     SECTION 6. IC 24-4-18-8, AS ADDED BY P.L.69-2012, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 8. (a) The attorney general may bring an action to enforce a violation of section 6 or 7 of this chapter. In addition to any injunctive or other relief, the attorney general may recover a civil penalty of:
        (1) not more than one thousand dollars ($1,000) for a first violation; and
        (2) not more than five thousand dollars ($5,000) for a second or subsequent violation.
    (b) Any person injured by a violation of section 6 or 7 of this chapter may bring an action to recover:
        (1) the greater of:
            (A) actual damages, including consequential damages; or
            (B) liquidated damages of five hundred dollars ($500); and
        (2) court costs and reasonable attorney's fees.
A violation of section 6 or 7 of this chapter is a deceptive act that is actionable under IC 24-5-0.5-4.
    (b) This section does not prohibit an individual from bringing an action on the individual's own behalf under the federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).

SOURCE: IC 34-28-5-15; (13)HB1392.1.7. -->     SECTION 7. IC 34-28-5-15, AS ADDED BY P.L.69-2012, SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 15. (a) This subsection does not apply to a person whose prosecution for an infraction is deferred under IC 34-28-5-1. If a person alleged to have violated a statute defining an infraction:
        (1) is not prosecuted or if the action against the person is

dismissed;
        (2) is adjudged not to have committed the infraction; or
        (3) is adjudged to have committed the infraction and the adjudication is subsequently vacated;
the court in which the action was filed shall order the clerk and the operator of any state, regional, or local case management system not to disclose or permit disclosure of information related to the infraction to a noncriminal justice organization or an individual.
     (b) Not earlier than five (5) years after a person:
        (1) whose prosecution for an infraction has been deferred; or
        (2) who was found to have violated a statute defining an infraction;
has satisfied the conditions of the deferral program or the judgment imposed for the violation, the person may petition the court to prohibit disclosure of information related to the infraction to a noncriminal justice organization or an individual. The court shall order the clerk and the operator of any state, regional, or local case management system not to disclose or permit disclosure of
information related to the infraction to a noncriminal justice organization or an individual if the court finds that:
        (1) the person satisfied the judgment or conditions of the deferral program; and
        (2) at least five (5) years have passed since the date the person satisfied the judgment or conditions of the program.

    (b) (c) If a court fails to order the court clerk and the operator of any state, regional, or local case management system to restrict disclosure of information related to the infraction under subsection (a), the person may petition the court to restrict disclosure of the records related to the infraction to a noncriminal justice organization or an individual.
    (c) (d) A petition under subsection (b) or (c) must be verified and filed in:
        (1) the court in which the action was filed, for a person described in subsection (a)(1); or
        (2) the court in which the trial was held, for a person described in subsection (a)(2) or (a)(3); or
        (3) the court finding or having jurisdiction over the violation, for a person described in subsection (b).

    (d) (e) A petition under subsection (b) or (c) must be filed not earlier than:
        (1) if the person is adjudged not to have not committed the infraction, thirty (30) days after the date of judgment;


        (2) if the person's adjudication is vacated, three hundred sixty-five (365) days after:
            (A) the order vacating the adjudication is final, if there is no appeal or the appeal is terminated before entry of an opinion or memorandum decision; or
            (B) the opinion or memorandum decision vacating the adjudication is certified; or
        (3) if the person is not prosecuted or the action is dismissed, thirty (30) days after the action is dismissed, if a new action is not filed; or
        (4) if the person participated in a deferral program or is found to have violated the statute defining the infraction, not earlier than five (5) years after the date the judgment for the violation is satisfied or the conditions of the deferral program are met.

    (e) (f) A petition under subsection (b) or (c) must set forth:
        (1) the date of the alleged violation;
        (2) the violation or alleged violation;
        (3) the date the action was dismissed, if applicable;
        (4) the date of judgment, if applicable;
        (5) the date the adjudication was vacated, if applicable;
        (6) the basis on which the adjudication was vacated, if applicable;
        (7) the date the judgment is satisfied or the conditions of the deferral program were met, if applicable;
         (8) the law enforcement agency employing the officer who issued the complaint, if applicable;
        (8) (9) any other known identifying information, such as the name of the officer, case number, or court cause number;
        (9) (10) the date of the petitioner's birth; and
        (10) (11) at the option of the petitioner, the:
            (A)
petitioner's driver's license or state identification card number; or
            (B) last four (4) digits of the petitioner's
Social Security number.
    (f) (g) A copy of a petition filed under subsection (b) or (c) shall be served on the prosecuting attorney.
    (g) (h) If the prosecuting attorney wishes to oppose a petition filed under subsection (b) or (c), the prosecuting attorney shall, not later than thirty (30) days after the petition is filed, file a notice of opposition with the court setting forth reasons for opposing the petition. The prosecuting attorney shall attach to the notice of opposition a certified copy of any documentary evidence showing that the petitioner is not

entitled to relief. A copy of the notice of opposition and copies of any documentary evidence shall be served on the petitioner in accordance with the Indiana Rules of Trial Procedure.
     (i) The court may, with respect to a petition filed under subsection (b) or (c):
        (1) summarily grant the petition;
        (2) set the matter for hearing; or
        (3) summarily deny the petition, if the court determines that:
            (A) the petition is insufficient; or
            (B) based on documentary evidence submitted by the prosecuting attorney to the court, the petitioner is not entitled to have access to the petitioner's records restricted.
    (h) (j) If a notice of opposition is filed under subsection (g) (h) and the court does not summarily grant or summarily deny the petition, the court shall set the matter for a hearing.
    (i) (k) After a hearing is held under subsection (h), (j), the court shall grant the petition filed under:
         (1) subsection (b) if the person is entitled to relief under that subsection; (a) or
        (2) subsection (c) if the person is entitled to relief under subsection (a).

    (j) (l) If the court grants a petition filed under subsection (b) or (c), the court shall order the clerk and the operator of any state, regional, or local case management system not to disclose or permit disclosure of information related to the infraction to a noncriminal justice organization or an individual.

SOURCE: IC 34-28-5-16; (13)HB1392.1.8. -->     SECTION 8. IC 34-28-5-16 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 16. (a) This chapter applies only to a person found to have committed an infraction.
    (b) Five (5) years after the date a person satisfies a judgment imposed on a person for the violation of an infraction, the clerk of the court shall prohibit the disclosure of information related to the infraction to a noncriminal justice organization or an individual.
    (c) If a person whose records are restricted under this section brings a civil action that might be defended with the contents of the records, the defendant is presumed to have a complete defense to the action.
    (d) For the plaintiff to recover in an action described in subsection (c), the plaintiff must show that the contents of the restricted records would not exonerate the defendant.
    (e) In an action described in subsection (c), the plaintiff may be required to state under oath whether the disclosure of records relating to an infraction has been restricted.
    (f) In an action described in subsection (c), if the plaintiff denies the existence of the records, the defendant may prove the existence of the records in any manner compatible with the law of evidence.
    (g) A person whose records have been restricted under this section may legally state on an application for employment or any other document that the person has not been adjudicated to have committed the infraction recorded in the restricted records.