SENATE BILL NO. 141
INTRODUCED BY WHEAT
BY REQUEST OF THE DEPARTMENT OF JUSTICE
AN ACT ALLOWING THE RELEASE OF CRIMINAL JUSTICE INFORMATION TO FIRE SERVICE AGENCIES AND FIRE MARSHALS REGARDING THE CRIMINAL INVESTIGATION OF A FIRE; PROVIDING A PROCEDURE FOR A PROSECUTOR TO PETITION THE COURT FOR RELEASE OF CONFIDENTIAL CRIMINAL JUSTICE INFORMATION IN CERTAIN CASES; AMENDING SECTIONS 44-5-103 AND 44-5-303, MCA; AND PROVIDING AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 44-5-103, MCA, is amended to read:
"44-5-103. Definitions. As used in this chapter, the following definitions apply:
(1) "Access" means the ability to read, change, copy, use, transfer, or disseminate criminal justice information maintained by criminal justice agencies.
(2) "Administration of criminal justice" means the performance of any of the following activities: detection, apprehension, detention, pretrial release, posttrial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. It includes criminal identification activities and the collection, storage, and dissemination of criminal justice information.
(3) "Confidential criminal justice information" means:
(a) criminal investigative information;
(b) criminal intelligence information;
(c) fingerprints and photographs;
(d) criminal justice information or records made confidential by law; and
(e) any other criminal justice information not clearly defined as public criminal justice information.
(4) (a) "Criminal history record information" means information about individuals collected by criminal justice agencies consisting of identifiable descriptions and notations of arrests; detentions; the filing of complaints, indictments, or informations and dispositions arising therefrom; sentences; correctional status; and release. It includes identification information, such as fingerprint records or photographs, unless the information is obtained for purposes other than the administration of criminal justice.
(b) Criminal history record information does not include:
(i) records of traffic offenses maintained by the department of justice; or
(ii) court records.
(5) (a) "Criminal intelligence information" means information associated with an identifiable individual, group, organization, or event compiled by a criminal justice agency:
(i) in the course of conducting an investigation relating to a major criminal conspiracy, projecting potential criminal operation, or producing an estimate of future major criminal activities; or
(ii) in relation to the reliability of information, including information derived from reports of informants or investigators or from any type of surveillance.
(b) Criminal intelligence information does not include information relating to political surveillance or criminal investigative information.
(6) (a) "Criminal investigative information" means information associated with an individual, group, organization, or event compiled by a criminal justice agency in the course of conducting an investigation of a crime or crimes. It includes information about a crime or crimes derived from reports of informants or investigators or from any type of surveillance.
(b) It The term does not include criminal intelligence information.
(7) "Criminal justice agency" means:
(a) any court with criminal jurisdiction;
(b) any federal, state, or local government agency designated by statute or by a governor's executive order to perform as its principal function the administration of criminal justice, including a fire agency or fire marshal that conducts criminal investigations of fires;
(c) any local government agency not included under subsection (7)(b) that performs as its principal function the administration of criminal justice pursuant to an ordinance or local executive order; or
(d) any agency of a foreign nation that has been designated by that nation's law or chief executive officer to perform as its principal function the administration of criminal justice and that has been approved for the receipt of criminal justice information by the Montana attorney general, who may consult with the United States department of justice.
(8) (a) "Criminal justice information" means information relating to criminal justice collected, processed, or preserved by a criminal justice agency.
(b) It The term does not include the administrative records of a criminal justice agency.
(9) "Criminal justice information system" means a system, automated or manual, operated by foreign, federal, regional, state, or local governments or governmental organizations for collecting, processing, preserving, or disseminating criminal justice information. It includes equipment, facilities, procedures, and agreements.
(10) (a) "Disposition" means information disclosing that criminal proceedings against an individual have terminated and describing the nature of the termination or information relating to sentencing, correctional supervision, release from correctional supervision, the outcome of appellate or collateral review of criminal proceedings, or executive clemency. Criminal proceedings have terminated if a decision has been made not to bring charges or criminal proceedings have been concluded, abandoned, or indefinitely postponed.
(b) Particular dispositions include but are not limited to:
(i) conviction at trial or on a plea of guilty;
(ii) acquittal;
(iii) acquittal by reason of mental disease or defect;
(iv) acquittal by reason of mental incompetence;
(v) the sentence imposed, including all conditions attached to the sentence by the sentencing judge;
(vi) deferred imposition of sentence with any conditions of deferral;
(vii) nolle prosequi;
(viii) a nolo contendere plea;
(ix) deferred prosecution or diversion;
(x) bond forfeiture;
(xi) death;
(xii) release as a result of a successful collateral attack;
(xiii) dismissal of criminal proceedings by the court with or without the commencement of a civil action for determination of mental incompetence or mental illness;
(xiv) a finding of civil incompetence or mental illness;
(xv) exercise of executive clemency;
(xvi) correctional placement on probation or parole or release; or
(xvii) revocation of probation or parole.
(c) A single arrest of an individual may result in more than one disposition.
(11) "Dissemination" means the communication or transfer of criminal justice information to individuals or agencies other than the criminal justice agency that maintains the information. It includes confirmation of the existence or nonexistence of criminal justice information.
(12) "Fingerprints" means the recorded friction ridge skin of the fingers, palms, or soles of the feet.
(13) "Public criminal justice information" means:
(a) information made public by law;
(b) information of court records and proceedings;
(c) information of convictions, deferred sentences, and deferred prosecutions;
(d) information of postconviction proceedings and status;
(e) information originated by a criminal justice agency, including:
(i) initial offense reports;
(ii) initial arrest records;
(iii) bail records; and
(iv) daily jail occupancy rosters;
(f) information considered necessary by a criminal justice agency to secure public assistance in the apprehension of a suspect; or
(g) statistical information.
(14) "State repository" means the recordkeeping systems maintained by the department of justice pursuant to 44-2-201 in which criminal history record information is collected, processed, preserved, and disseminated.
(15) "Statistical information" means data derived from records in which individuals are not identified or identification is deleted and from which neither individual identity nor any other unique characteristic that could identify an individual is ascertainable."
Section 2. Section 44-5-303, MCA, is amended to read:
"44-5-303. Dissemination of confidential criminal justice information -- procedure for dissemination through court. (1) Except as provided in subsections (2) through (4), dissemination of confidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure. Permissible dissemination of confidential criminal justice information under this subsection includes receiving investigative information from and sharing investigative information with a fire service agency or fire marshal concerning the criminal investigation of a fire.
(2) If the prosecutor determines that dissemination of confidential criminal justice information would not jeopardize a pending investigation or other criminal proceeding, the information may be disseminated to a victim of the offense by the prosecutor or by the investigating law enforcement agency after consultation with the prosecutor.
(3) Unless otherwise ordered by a court, a person or criminal justice agency that accepts confidential criminal justice information assumes equal responsibility for the security of the information with the originating agency. Whenever confidential criminal justice information is disseminated, it must be designated as confidential.
(4) The county attorney or the county attorney's designee is authorized to receive confidential criminal justice information for the purpose of cooperating with local fetal, infant, and child mortality review teams. The county attorney or the county attorney's designee may, in that person's discretion, disclose information determined necessary to the goals of the review team. The review team and the county attorney or the designee shall maintain the confidentiality of the information.
(5) (a) If a prosecutor receives a written request for release of confidential criminal justice information relating to a criminal investigation that has been terminated by declination of prosecution or relating to a criminal prosecution that has been completed by entry of judgment, dismissal, or acquittal, the prosecutor may file a declaratory judgment action with the district court pursuant to the provisions of the Uniform Declaratory Judgments Act, Title 27, chapter 8, for release of the information. The prosecutor shall:
(i) file the action in the name of the city or county that the prosecutor represents and describe the city's or county's interest;
(ii) list as defendants anyone known to the prosecutor who has requested the confidential criminal justice information and anyone affected by release of the information;
(iii) request that the prosecutor be allowed to deposit the investigative file and any edited version of the file with the court pursuant to the provisions of Title 27, chapter 8;
(iv) request the court to:
(A) conduct an in camera review of the confidential criminal justice information to determine whether the demands of individual privacy do not clearly exceed the merits of public disclosure; and
(B) order the release to the requesting party defendant whatever portion of the investigative information or edited version of the information the court determines appropriate.
(b) In making an order authorizing the release of information under subsection (5)(a), the court shall make a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure and authorize, upon payment of reasonable reproduction costs, the release of appropriate portions of the edited or complete confidential criminal justice information to persons who request the information.
(c) In an action filed for the court-ordered release of confidential criminal justice information under subsection (5)(a), the parties shall bear their respective costs and attorney fees.
(6) The procedures set forth in subsection (5) are not an exclusive remedy. A person or organization may file any action for dissemination of information that the person or organization considers appropriate and permissible."
Section 3. Applicability. [This act] applies to any request for confidential criminal justice information made on or after [the effective date of this act].
- END -
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