Senate Judiciary conference committee finalizes language for S 12 on sealed criminal records, sets statewide policy deadline

Members of the Senate Judiciary conference committee met May 28 to review revised conference-report language for S 12 that changes how sealed criminal history records may be disclosed and requires a statewide policy for law enforcement access and use.

The revised draft keeps a long list of exemptions that allow certain entities to use sealed records but adds a second layer of process before those records may be disclosed to third parties. "But before you disclose it to someone else ... there is a second layer of process that has to be gone through," said Patrick, legislative counsel in the Office of Legislative Council, as he walked members through the proposal.

Under the proposal, listed criminal-justice entities could continue to review sealed records for investigative or agency purposes without additional court approval, but if an agency intends to disclose a sealed record to an outside person — for example in a deposition or to an expert witness — the agency would first need a court finding that the disclosure is for criminal-justice purposes. Patrick described a further court review process if a party seeks to use a sealed record in litigation, where the court would determine relevance.

The conference draft expands the existing civil penalty for unlawful disclosure. Current law limits penalties to state or municipal employees or contractors; the draft would make any person who knowingly accesses or discloses a sealed record outside the authorized list subject to the civil penalty. The committee discussed that change as a clarifying modernization given the broader list of permitted users in the bill.

The proposal preserves the Senate approach to deferred sentences: deferred sentences would continue to be expunged under current law rather than converted to sealed records, and language in the House draft that would have changed that was struck from the conference text.

The draft also directs the Criminal Justice Council to develop a statewide model policy governing law enforcement access to and use of sealed criminal history records. The council would be required to adopt the model policy by Dec. 15 of this year; law enforcement agencies covered by the policy then would have three months to adopt it or be deemed to have adopted the council's model. The proposal includes a recordkeeping requirement for agencies to maintain a log of each instance an officer accesses a sealed record and requires compliance with applicable state and federal law.

Committee members indicated support for the approach and discussed next steps for finalizing the report. "I mean, in my opinion, I think I'm supportive of these changes," said a committee member. Members asked staff to edit the text, collect signatures and report the conference committee report; no formal roll-call votes were taken during the discussion.

Committee staff and counsel said they would circulate an edited version, arrange for signatures and move the report to the originating body once those steps are completed. The group discussed logistical options for obtaining signatures and e-signatures. The committee otherwise took no formal vote during this meeting and left final reporting contingent on completing the edits and signature collection.