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February 20, 1976


The opinion of the court was delivered by: SMITH

 Plaintiff filed this action in 1971 seeking a modification of his FBI criminal record or, alternatively, an injunction against its dissemination to correctional and judicial officials. The Court of Appeals reversed the District Court's dismissal of plaintiff's complaint and remanded for consideration of the following question: "[To] what extent, if any, does the FBI have a duty to take reasonable measures to safeguard the accuracy of information in its criminal files which is subject to dissemination"? Tarlton v. Saxbe, 165 U.S. App. D.C. 293, 507 F.2d 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. *fn1" 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. *fn2" Of the dispositions received, 20% are submitted within 90 days of the arrest and an additional 30% within 180 days. *fn3"

 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. *fn4" 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. *fn5" 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. *fn6" 4.) Courts have repeatedly invited legislative attention to the matters of accuracy, completeness, and currency in the FBI's fingerprint record system. *fn7"


 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. *fn8" 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." *fn9" 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. *fn10"

  However, state and local responsibility does not imply non-responsibility on the part of the FBI. *fn11" 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. *fn12"


 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. *fn13" 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 ...

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