Senate Judiciary conference committee agrees on S 12 language on use, disclosure of sealed criminal records

May 28 — The Senate Judiciary conference committee reviewed and provisionally agreed on changes in the conference report for S 12 that define who may access sealed criminal history records, require court review before some disclosures outside listed agencies, expand civil penalties for unauthorized disclosures, and direct the Criminal Justice Council to adopt a statewide model policy governing youth criminal history records.

The changes matter because they set a statewide process for when sealed records may be used or passed to parties outside a narrow list of exempted agencies, create new recordkeeping requirements, and change statutory treatment of deferred sentences — all of which affect law enforcement procedures, defense litigation and individuals whose records are sealed or expunged.

Patrick, legislative counsel in the Office of Legislative Counsel, told the committee the proposal keeps a broad list of entities that may use sealed records but creates a second layer of process when an agency intends to disclose the record to another party. "The concept is that the listed agencies and entities can continue to use the sealed records provided they're in this list of exempted parties," Patrick said, adding that the new language requires judicial review before disclosure beyond those listed users.

Under the proposed conference language, the exemptions that permit use of sealed records begin on pages 25–29 of the draft and include a range of entities and purposes (Patrick cited examples including a state's attorneys, certain criminal justice information centers, employees conducting investigations, adult protective services and researchers in defined circumstances). Agencies and employees who review or rely on sealed records for internal purposes could continue to do so; however, according to the draft, before disclosing that record to an outside person — for example, in a deposition, to an expert witness or to a third party — the producing agency must obtain a court finding that disclosure is for criminal justice purposes.

Patrick also said the bill retains a separate judicial-review process for use of sealed records in litigation. "If they want to use it in court, then there's that additional process," he said, describing statutory language that directs a court to consider relevance before allowing use in a proceeding.

The conference draft also expands the civil penalty for unauthorized disclosure. Patrick explained that current law limits the civil penalty to state or municipal employees and contractors who unlawfully disclose sealed records; the conference language would make any person who knowingly accesses or discloses sealed records without authority subject to the penalty.

Committee members asked for clarification on several points. Eric, chair of the Senate Judiciary Committee, said he supported the approach and the statewide policy for youth records, citing operational clarity and judicial-review protections. "So, I mean, in my opinion, I think I'm supportive of these changes. I'm really appreciative of the statewide policy," Eric said. Other members voiced no formal objections during the walkthrough.

On treatment of deferred sentences, the draft follows the Senate position: deferred sentences remain expunged under current law rather than being converted to a sealed record as the House had proposed. Patrick said the conference language strikes the House provision and preserves expungement for deferred sentences.

A new requirement would task the Criminal Justice Council with adopting a statewide model policy on access to and use of youth criminal history records. The draft gives the council a Dec. 15 deadline to establish the model policy and then provides three months for covered law enforcement agencies to adopt it; agencies that do not adopt a local policy within that period would be deemed to have adopted the council's model policy. The model policy language (pages 42–44 in the draft) also would define what types of sealed criminal history records may be accessed, require agencies to maintain a recordkeeping system logging each instance an officer accesses a sealed record, and charge the council with publishing and periodically reviewing the policy and standards.

Committee members discussed logistics for finalizing the conference report: staff will edit the agreed language, collect signatures from committee members and return the signed report for filing. Patrick noted the draft contains multiple page references where the new or retained language appears (pages 25–29 for exceptions; page 35 for the civil-penalty change; pages 36–39 for deferred-sentence language; pages 42–44 for the statewide model policy).

Next steps noted during the meeting included completing edits and obtaining signatures so the conference committee can report the bill back to the Senate; separately, the Criminal Justice Council would have until Dec. 15 to adopt the statewide model policy and an additional three months for agencies to adopt it or be deemed to have adopted it.

No formal motions or roll-call votes were taken in the conference committee at this meeting; members gave direction to staff to finalize edits and secure signatures on the conference report.