CRIMINAL HISTORY RECORD CHECKS
IN HAWAII: ISSUES AND OPTIONS
Hawaii's laws relating to criminal history record checks are entangled in a significant state of confusion, not quickly or easily clarified. The various laws that govern access and use of criminal history records and laws that authorize criminal history record checks, when considered together, are often redundant, unnecessary, duplicative, or inconsistent, overlapping in some areas and conflicting in others.
There is little common understanding of what is meant by the term "criminal history record check", what criminal history records are available to employers or the general public, and how those records can be used in employment and licensing decisions. Criminal history record checks cannot be examined in isolation, related laws governing access and use must also be considered. All stakeholders must be involved and informed.
Existing law already allows an employer to investigate the job applicant or employee's Hawaii conviction data. Hawaii conviction data is public record and freely available to the public. Employers may ask about and consider criminal convictions that are less than ten years old and rationally related to the job. For most positions, this is sufficient to determine employment suitability.
· Revise existing laws, including laws governing access and use of criminal history record information and those authorizing criminal history record checks to use uniform terminology, and either clarify or repeal redundant, unnecessary, duplicative, inconsistent, or overlapping laws. New laws should not be adopted in isolation.
· Consider adopting as administrative rules or departmental practices Guidelines for Screening Persons Working With Children, the Elderly, and Persons in Need of Support issued in 1998 by the United States Attorney General.
· Create a criminal history record check working group of all stakeholders to resolve policy issues raised by the study relating to the access and use of criminal history record information for the noncriminal justice purposes of employment and licensing determinations and submit recommendations to the legislature.
· Develop a public service program to educate the public on criminal history record check issues.
· Consider the creation of abuse and neglect registries for children, the elderly, and the disabled where they do not exist.
· Consider designation of an additional state agency as an "authorized agency" through which a qualified entity may request a national criminal history record check under the National Child Protection Act in the absence of an authorizing statute.
· Not expand public access to include unrestricted to nonconviction data. Existing law makes Hawaii an "open records" state for purposes of unrestricted public access to Hawaii criminal conviction data.
II. Frequently Asked Questions
1. What are criminal history records and where are they?
Answer: Criminal history records trace an individual's involvement through the criminal justice system. An individual's "criminal history record information" includes both conviction data and nonconviction data (arrests that did not result in a valid conviction).
The Hawaii Criminal Justice Data Center (Data Center) is the state repository for criminal history record information for state law offenders who were arrested in Hawaii. The Data Center does not maintain records for federal offenders or individuals arrested and convicted in other states.
2. Is Hawaii criminal history record information public record?
Answer: Hawaii conviction data is freely accessible by the general public.
Nonconviction data, or arrest records more than twelve months old where the individual was not subsequently convicted, is not public record and dissemination is limited by law to authorized agencies and individuals. Nonconviction data includes acquittals and dismissals.
3. How are Hawaii conviction records accessed by the public?
Answer: Conviction data may be accessed on Public Access computers at the Data Center, the main county police departments, and the Kona police department on Monday through Friday from 8:00 a.m. to 4:30 p.m.
To search the conviction database, the subject's name, social security number, sex, and birth date is needed. A printed copy of a Public Access search costs $10.00.
If some of the personal identification information for the subject to be checked is unknown, the Data Center will conduct a name based check for $15.00. The Data Center will conduct a fingerprint based check of conviction data for $25.00. A fingerprint based check provides the most accurate results.
Because Hawaii conviction data is public record, no law is needed for an employer to conduct a criminal history record check to see whether a job applicant or employee has a criminal conviction record.
4. Who may access nonconviction data?
Answer: Dissemination of nonconviction data is limited by law to criminal justice agencies, state and county government agencies authorized to conduct criminal history record checks to determine employment and licensing suitability, and other authorized agencies and individuals.
Any record subject may review his or her own criminal history record information, including nonconviction data, to challenge the accuracy and completeness of the information. Any application by a record subject to access and review the subject's own criminal history record information must include the applicant's fingerprints.
5. When can an employer ask about or consider conviction records in employment decisions?
Answer: Employers may ask about and consider criminal convictions less than ten years old that are rationally related to the duties and responsibilities of the job.
For job applicants, an employer must first make a conditional offer of employment before inquiry and consideration is permitted. The conditional job offer may be withdrawn if the applicant has a conviction record rationally related to the job.
6. Can arrest records not followed by a valid conviction be considered in employment decisions?
Answer: Generally, an employer may neither ask about nor consider arrest records where the individual was not subsequently convicted.
A limited exception allows employers to consider an individual's "arrest and court record" as a bona fide occupational qualification (BFOQ), subject to certain conditions. A BFOQ must be reasonably necessary to the normal operation of the business and substantially related to the functions and responsibilities of the job.
7. What is the Hawaii Sex Offender Registry?
Answer: The Sex Offender Registry (Registry) contains information on convicted sex offenders registered and living in Hawaii. It is freely available to the general public at the same locations as Hawaii conviction data. The Registry is also available online at www.hawaiigov.org.
The Registry may be searched by offender's name or zip code. The information shown for positive hits include the offender's name, street name (but not address) of the residence and place of employment, vehicle(s) driven, photograph, and crime for which the offender was convicted.
If the offender was not arrested in Hawaii, a search of the Hawaii conviction database would not turn up information on the convicted offender since the conviction database is based on Hawaii arrests.