XI. Q. Criminal History Records

Effective 10/1/87

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PURPOSE

In order to determine whether a child has been or is likely to be abused or neglected, and/or what services are necessary to protect a child, the department may need access to criminal history records of persons who are, or may be, significant in a plan regarding the child.  Such information will enable the worker to better assess the risks involved in alternative plans for the child.

 

LEGAL BASE

1.Public access is not restricted to criminal record information in records normally available to the public, such as:
a.District or Superior Court records;
b.Police blotters and other original records of entry maintained by such agencies;
c.Secretary of State's traffic offense records, with a few exceptions.

 

2.Title 16 MRSA §611 et seq. governs access to information held by "criminal justice agencies", such as the State Bureau of Identification.

 

3.Under Title 22, MRSA §4021, the Commissioner, his delegate, or legal counsel for the department is authorized to obtain criminal history record information relevant to a child abuse/neglect case.

This includes child protective and substitute care cases.

 

4.Information obtained by the department under this statutory authorization shall be used only for the purpose for which it was given and shall not be further disseminated except in accordance with Title 16 MRSA  611 et seq.

Unauthorized disclosure constitutes a Class E crime.  Basically, non-conviction data obtained from the Maine State Police State Bureau of Identification cannot be further disseminated by the Department except to criminal justice agencies (law enforcement agencies) or upon court order.

 

PRACTICE STANDARDS

1.Child care licenses and adoption applications

In accordance with the department's responsibilities to evaluate an application for a license for a child care facility (family foster home, child placing agency, day care facility, nursery school or residential child care facility) or an adoptive home application, these applications contain a release for the department to obtain criminal history record information regarding the applicants.

 

2.Determining when to request information
a.Requests for criminal history records will be made when:
(l)there is reason to believe that there is criminal history information which is relevant to the plan to protect the child.
(2)an application with the release is received for a foster home, or other child care facility license, or to adopt a child.
b.Crimes or offenses most likely to be relevant to possible harm to a child would involve:
(1)Violence, particularly in the family context (e.g., murder, assault);
(2)Negligence with respect to family (e.g., endangering welfare of child, abandoning child);
(3)Sexual misconduct (e.g., rape, incest, sexual misconduct or abuse);
(4)Abuse of drugs or alcohol, so that general functioning is impaired (i.e., operating under the influence);
(5)Serious antisocial behavior (e.g., serious property crimes).
c.Consult Assistant Attorney General regarding relevancy questions.

 

3.Obtaining Information
a.The person in question will be asked about criminal history information and requested to sign a release.
(1)His discussion of it will give some indication of its current significance.
(2)If a protection petition is contemplated, notes regarding offenses acknowledged by that person will be helpful.  These notes can be compared with criminal history records and/or testimony in a child protection proceeding.
(3)Discussion and comparison are also useful in evaluating applications.
b.Official criminal history record information may be obtained from either public or confidential sources:
(1)Public records:
(a)District and/or Superior Court, filed by defendant's name and date of birth;
(b)Secretary of State, Division of Motor Vehicle, Driver Licensing and Control Unit;
(c)Local police department chronological logs (blotters) of arrests, charges, call-outs, etc.
(2)Confidential records:

Department of Public Safety, State Police, State Bureau of Identification (SBI), statewide criminal history records; filed by defendant's name and date of birth; contains both conviction and non-conviction data.  (Note that the information in this central registry is usually available from the non-restricted sources listed above, but they may be scattered around the state).

c.Out-of-state official record information may be obtained through law enforcement or by directly contacting our counterpart agency in that state.
(1)Maine law regarding access to records does not apply in another state.  However, the counterpart agency may have access through its own state laws.  The other state will likely require a written request.
(2)If the counterpart agency is unclear about access to records, or unable to obtain or release this information, the worker will ask that agency to identify its legal advisor and will refer the matter to our Assistant Attorney General.

 

4.Confidentiality
a.When a confidential criminal history record is obtained, any information which is not relevant to possible harm to a child will be deleted prior to the information becoming part of the department's case record.
b.Confidential criminal history record information cannot be disseminated further except in accordance with Title 16 MRSA  611 et seq.  See Legal Base above.

The confidentiality/dissemination provisions of Title 22 MRSA  4008 are supplemented by Title 16 MRSA  611.

c.Out-of-state criminal history records obtained by the department are not subject to Title 16 MRSA  611.  However, the department will treat these records in the same manner as Maine records.
d.Confidential records obtained by consent are not subject to Title l6 MRSA §611.  However, the department will treat these in the same manner, unless the client's consent authorizes disclosure (e.g., as part of application for child care or placement (see item 1. above.).
e.This information will be specifically identified in the case record as confidential.
f.Consult the Assistant Attorney General on questions or problems regarding any aspects of this subsection.

 

PROCEDURES

1.Public records may be accessed upon inquiry.

 

2.Access to restricted records (e.g., State Bureau of Identification) will be on the department's form Request For Criminal History Record (form BSSCF-018) which may be completed by either field staff or an Assistant Attorney General, and may be presented in person (with approved identification) or by mail (including a self-addressed return envelope is helpful).