The Indiana legislature recently passed House Bill 1392 which amended laws about criminal history providers and criminal law and procedure. The background to this bill is that a much more restrictive bill passed at the end of the 2012 legislative session, but had a delayed effective date of July 1, 2013. In the meantime, the legislature appointed a study committee to review the bill and it recommended amendments. This compliance update examines the law after all of the changes.
Indiana Code Section 24-4-18 was created and deals with criminal history providers. It defines a “criminal history provider” as a person or an organization that compiles a criminal history report and either uses the report or provides the report to a person or an organization other than a criminal justice agency, a law enforcement agency, or another criminal history provider.” The term does not include the following:
- A criminal justice agency;
- A law enforcement agency;
- Any person connected with or employed by a media outlet including newspapers or other periodical issued at regular intervals and having a general circulation, or a recognized press association or wire service, and radio or television stations as an owner, official, editorial or reportorial employee who receives income from legitimate gathering, writing, editing, broadcasting and interpretation of news.
- Any person who gathers, records, compiles or disseminates criminal history information or criminal history reports solely for journalistic, academic, governmental, or legal research purposes.
- The clerk of a circuit, superior, city, or town court.
The new statute defines “criminal history report” as “criminal history information that has been compiled primarily for the purposes of evaluating a particular person’s eligibility for (1) employment in Indiana; (2) housing in Indiana; (3) 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.” It does not include information compiled primarily for the purpose of journalistic, academic, governmental, or legal research.
Criminal history information is information concerning a criminal conviction in Indiana and available in records kept by a clerk of a circuit, superior, city, or town court with jurisdiction in Indiana. It includes identifiable descriptions and notations of arrests, indictments, information, or other formal criminal charges. It also includes dispositions of cases, fingerprint information, and photographs of sex or violent offenders.
Section 24-4-18-6 outlines restrictions placed on criminal history providers. According to this section, a provider may not knowingly provide a criminal history report containing a record that:
- Has been expunged by marking the record ‘expunged’ or by removing it from public access;
- Is restricted by a court or court rules, and is marked restricted from public disclosure;
- Is reported as a Class D felony if it was entered as or converted to a Class A misdemeanor; or
- The criminal history provider knows is inaccurate. However, a criminal history provider may provide such information if the person requesting the report is required by state or federal law to obtain it or it will be used solely in connection with the issuance of a public bond.
Section 24-4-18-7 deals with criminal history information updates. Under this section, a provider may not knowingly include criminal history information in a report if does not reflect material changes occurring sixty days or more before the report is delivered. There is no violation of the Act if the material criminal history information is not contained in the official record at least sixty days before the report is delivered.
Section 24-4-18-8 stipulates that a violation of sections 24-4-18-6 or 7 is a deceptive act that is actionable under the State’s Deception Consumer Sales statutes. An individual may seek remedy by bringing an action on its own behalf under the Federal Fair Credit Reporting Act.
House Enrolled Act No. 1392 is available here: http://www.in.gov/legislative/bills/2013/PDF/HE/HE1392.1.pdf