1116, 1121 (1974). The facts underlying plaintiff's claim are set forth in the Court of Appeals opinion, id. at 1133-37, 1143 (Wilkey, J., dissenting), and need not be detailed here, other than to point out that he has completed the sentence he was serving during lower court and appellate proceedings and is now apparently living in Texas. The matter is before the Court on Cross Motions for Summary Judgment.
The FBI Identification Division maintains criminal records for some 21.4 million individuals.
Approximately 10,000 fingerprint cards are submitted to the FBI each workday by the 7,000 contributing federal, state, and local criminal justice agencies, and appropriate information is transferred to an individual's master card. Upon request the FBI disseminates criminal records in the form of a "rap sheet" to authorized recipients, including criminal justice agencies, courts, banks, and federal and certain non-federal employers. An individual may obtain a copy of his FBI criminal record by providing satisfactory proof of identity and paying a small fee. 28 C.F.R. §§ 16.32-.33 (1975). In the first two years during which access to records was permitted, 2,145 individuals requested and obtained copies of their FBI record.
Dispositional information on cases is furnished to the FBI by contributing criminal justice agencies or by local courts. Although almost 70% of the FBI's criminal records include at least one arrest without any indication of final disposition, the rate of reporting has improved substantially in the past two fiscal years.
Of the dispositions received, 20% are submitted within 90 days of the arrest and an additional 30% within 180 days.
Several general propositions help summarize the current state of the law regarding the FBI's responsibility for maintenance and dissemination of criminal records. 1.) 28 U.S.C. § 534(a)(1970) and 28 C.F.R. § 0.85(b)(1975), authorizing the acquisition and exchange of fingerprint identification records, require the FBI to act "reliably and responsibly and without unnecessary harm" to an individual's right of privacy.
The FBI is not merely a repository for records but is also the focal point of a vast, nationwide distribution network. 2.) An individual's arrest record -- whether accurate or inaccurate -- can have far-reaching social, judicial, and economic consequences.
3.) Challenges to FBI arrest and conviction records, e.g., for correction or expungement, are properly brought at the state or local level in the first instance. "Exhaustion of remedies" is ordinarily a prerequisite to suit against the FBI.
4.) Courts have repeatedly invited legislative attention to the matters of accuracy, completeness, and currency in the FBI's fingerprint record system.
Plaintiff seeks four major procedural reforms in the FBI's system of handling criminal records: imposition of a duty of inquiry upon notice of a challenge to FBI criminal record information; requirement to indicate upon a criminal record any pending challenge; prohibition against dissemination of any entries relating to "non-serious offenses;" and ban on distribution of any arrest record with entries more than one year old without reported disposition.
Defendants contend that the FBI's current procedures are reasonable and adequate, that considerations of federal-state comity preclude FBI intervention in the affairs and processes of local criminal justice agencies, and that administrative reasons such as costs and personnel justify the FBI's unwillingness to implement plaintiff's proposals. The Court will consider seriatim the specific reforms suggested by plaintiff.
Current FBI regulations require an individual seeking correction or updating of his criminal record to "make application directly to the contributor of the questioned information."
The FBI will change its records only after official notification from the contributing agency or upon receipt of a court order. This practice accords with the general "exhaustion of remedies" requirement, supra, note 6. The FBI is in no position to guarantee the accuracy of criminal information or to resolve conflicting factual, legal, or constitutional issues raised by way of record challenges. Rather, "[with] the local enforcement agency as defendant, complete relief can be granted, both to obtain such action on local records as may be needed, and to have local authorities request the return of records" from the FBI.
However, state and local responsibility does not imply non-responsibility on the part of the FBI.
The FBI at a minimum has a duty to forward challenges to appropriate criminal justice agencies and courts for investigation and the initiation of correction procedures. This will not involve drastic reforms within the FBI criminal record system. A brief, individualized letter or a form memorandum can be attached to the challenge and sent to the appropriate agency or court. If the matter involves a routine or typographical error, the agency or court can swiftly consider the challenge and advise the FBI to make necessary corrections in its records. More serious and difficult challenges will, of course, require more elaborate administrative and judicial proceedings on the state and local level. In any event, the FBI has advanced no persuasive administrative or jurisdictional limitations which would prevent its forwarding of record challenges to the proper state and local channels.
Plaintiff contends that an individual's record should reflect the existence and nature of a pending challenge, especially if the fact-finding or adjudicatory process is lengthy. The Court, however, recognizes the practical problems in such a procedure. The credibility of FBI criminal records would be hampered by notations alleging inaccuracy or incompleteness. A patchwork sheet of asterisks, coded symbols, or long-hand explanations could render a criminal record useless. Permitting such notations could encourage frivolous challenges as well as create a substitute forum for correction proceedings.
Hopefully, the challenge proceedings supra will move expeditiously so as to lessen the prejudice caused by erroneous information. Rather than order the inclusion of symbols or exculpatory statements in a criminal record during the course of a challenge, the Court prefers to rely upon formal challenge proceedings and upon the person-to-person communication possible between a suspect or defendant and the authorities utilizing material in his criminal record.
Since early 1973 the FBI has not accepted criminal fingerprint cards relating to non-serious offenses, such as drunkenness, vagrancy, traffic violations, and juvenile offenses.
Non-serious offenses predating this change in policy have remained in an individual's file.
However, if a non-serious offense is presently the only entry in a subject's record, it is deleted upon request for dissemination and the requesting party informed that the subject has no criminal record. Approximately one-third of the FBI's 21.4 million records contain only one offense. In addition, as the FBI converts its records into computerized files, non-serious offenses will be deleted from all criminal records except those of individuals over the age of 35. This will account for about two-thirds of the remaining 14 million files.
Plaintiff's proposal for deleting non-serious offenses would thus affect a limited class of individuals -- those persons (numbering perhaps 5 million) over age 35 whose records include both serious and non-serious offenses. Deleting non-serious offenses in these individuals' records upon request for dissemination would be neither unreasonable nor overly expensive. The deletion of such offenses, as noted, is already a firm policy of the FBI. Moreover, non-serious offenses are deleted and the entire rap sheet retyped for any individual (whether under or over 35) when requested by a banking institution or a non-federal employer.
Recognizing that persons over 35 "slow down in their criminal activities,"
the FBI apparently believes that few requests for such individuals' records will be received. And, the cost of retyping such records is not prohibitive.
The Court therefore directs that upon request for dissemination, the FBI criminal records which are not initially to be computerized (i.e., those of individuals over 35) should be retyped with references to non-serious offenses deleted.
The final area addressed by plaintiff upon remand concerns dissemination of arrest records more than one year old without disposition. Furnishing dispositions is, of course, primarily the responsibility of local criminal justice agencies and courts. The FBI provides forms for final dispositions and periodically urges its contributors to submit dispositional information as soon as it is available.
The FBI itself does not make requests for dispositions to local agencies or courts, allegedly because of the volume of records processed and the difficulty in locating the proper adjudicatory level of an arrest. No sanctions are imposed upon local agencies for failure to submit dispositions.
The FBI, however, does not disseminate year old, "open" arrest records to non-federal and non-law enforcement agencies; instead it retypes the rap sheet to delete references to such arrests. 28 C.F.R. §§ 50.12(b)-(c). As previously indicated, overall statistics show that while 70% of the FBI criminal records contain at least one offense without disposition, the reporting rate has improved significantly in recent years. See note 2 supra.
The Court is aware of the potential harm to an individual whose arrest record lacks dispositional data,
and notes that the FBI's computerizing of its criminal records might include certain corrective measures, such as a "tickler" system.
At the present time, however, the Court is reluctant either to require the FBI to track down missing dispositions or to impose rigid requirements in this difficult and uncharted area. New regulations, supra note 22, address the problem for a limited number of files and impose serious sanctions upon criminal justice agencies failing to submit final dispositional data. Experience will judge the effectiveness of these regulations and indicate whether the time strictures and sanctions included should be expanded to the entire FBI criminal record system.
The challenge and corrections process outlined above may be utilized to acquire dispositions or deletions for outdated criminal record entries. Balancing personal rights with the valid needs of the criminal justice system, the Court cannot order the wholesale expungement or non-dissemination of criminal records not meeting an arbitrary temporal yardstick. The inadvertence or negligence of one criminal justice agency should not be compounded to provide post-factum "pardons" or expungements for guilty offenders. Nor should one agency's careless actions work to impede the legitimate efforts of other criminal justice officials, including law enforcement personnel, prosecutors, judges, and correctional authorities.
Notwithstanding the above, the Court believes that the FBI should give further consideration to this problem. Despite the major (and costly) computer conversion project now under way, no feasibility study or cost-benefit analysis has been performed by the FBI relating to the initiation of a "tickler" system or some other method of assuring currency in the record system.
The FBI cannot proceed undisturbed by the serious danger to individuals caused by unreported dispositions and "stale" files, nor can it totally relegate responsibility for such deficiencies to local agencies and courts. Further, the cost estimates provided for the "obsolete" manual operation, supra note 24, are of little use to the Court in determining reasonableness. The Court therefore directs the FBI to conduct a feasibility study concerning such systems and procedures as would enable the FBI to keep the disposition entries in its criminal records reasonably current.
In summary, the Court holds: that challenges to FBI criminal records must ordinarily proceed first before appropriate local agencies or courts, and that the FBI has the responsibility to forward such challenges to the proper local channels for consideration; that a pending challenge need not be reflected on an individual's FBI criminal record; that non-serious offenses are to be deleted from all FBI criminal records -- upon request for dissemination for all individuals over age 35, and upon conversion to computerized files for all other individuals; and that year old arrest records without dispositions may presently be disseminated for law enforcement purposes, but that the FBI must conduct a feasibility study relating to methods of keeping disposition entries on criminal records reasonably current.
Within 30 days of the date of this Opinion, the parties shall submit (jointly and individually) proposed Orders implementing the requirements included herein.
John Lewis Smith Jr. / United States District Judge
February 20, 1976