PocketLaw | Georgia Code | (For Effective Date, See note.) Disclosure

(For Effective Date, See note.) Disclosure and Dissemination of Criminal Records to Private Persons and Businesses; Resulting Responsibility and Liability of Issuing Center; Provision of Certain Information to the Fbi in Conjunction With the National Instant Criminal Background Check System

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The center shall be authorized to:
1. Make criminal history records maintained by the center available to private persons and businesses under the following conditions:
  1. Private individuals and businesses requesting criminal history records shall, at the time of the request, provide the fingerprints of the person whose records are requested or provide a signed consent of the person whose records are requested on a form prescribed by the center which shall include such person's full name, address, social security number, and date of birth;
  2. 1. The center shall not provide records of arrests, charges, or sentences when an individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 and has been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, including records relating to such defendant's bench warrants, failure to appear, and probation for such offense, except as specifically authorized by Code Section 42-8-63.1. The center shall not provide records of arrests, charges, or sentences when an individual has been sentenced as provided in Code Section 15-1-20, including records relating to such defendant's bench warrants, failure to appear, and probation for such offense, except as specifically authorized by Code Section 42-8-63.1.
    2. During the period of time after a defendant, who has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 but has not been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, has completed active probation supervision through the remainder of such sentence, the center shall not provide records of arrests, charges, or sentences except as specifically authorized by Code Section 42-8-63.1.
    3. The center may provide records of arrests, charges, or sentences when an individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 but has not been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, as specifically authorized by Code Section 42-8-63.1, while a defendant is under active probation supervision for such offense, or as provided in a court order;
  3. When the identifying information provided is sufficient to identify persons whose records are requested electronically, the center may disseminate electronically criminal history records of in-state felony convictions, pleas, and sentences without:
    1. Fingerprint comparison; or
    2. Consent of the person whose records are requested; and
  4. (For effective date, see note.) The center shall not provide records of arrests, charges, or dispositions when access has been restricted pursuant to Code Section 3-3-23.1, 15-1-20, 16-13-2, 35-3-37, or 42-8-62.1; or
2. Make criminal history records of the defendant or witnesses in a criminal action available to counsel for the defendant upon receipt of a written request from the defendant's counsel under the following conditions:
  1. Such request shall contain the style of the case and the name and identifying information for each person whose records are requested.Such request shall be submitted to the center;
  2. In cases where the court has determined the defendant to be indigent, any fees authorized by law shall be waived; and
  3. Disclosure of criminal history information to the defendant's counsel as provided in this paragraph shall be solely in such counsel's capacity as an officer of the court.Any use of such information in a manner not authorized by law or the court in which such action is pending where the records were disclosed shall constitute a violation of Code Section 35-3-38; and
3. Charge fees for disseminating records pursuant to this Code section which will raise an amount of revenue which approximates, as nearly as practicable, the direct and indirect costs to the state for providing such disseminations.
In the event that an employment decision is made adverse to a person whose record was obtained pursuant to this Code section, the person will be informed by the business or person making the adverse employment decision of all information pertinent to that decision. This disclosure shall include information that a record was obtained from the center, the specific contents of the record, and the effect the record had upon the decision. Failure to provide all such information to the person subject to the adverse decision shall be a misdemeanor.
Neither the center, its employees, nor any agency or employee of the state shall be responsible for the accuracy of information nor have any liability for defamation, invasion of privacy, negligence, or any other claim in connection with the dissemination pursuant to this Code section and shall be immune from suit based upon any such claims.
Local criminal justice agencies may disseminate criminal history records, without fingerprint comparison or prior contact with the center, to private individuals and businesses under the same conditions as set forth in paragraph (1) of subsection (a) of this Code section and may charge fees as needed to reimburse such agencies for their direct and indirect costs related to the providing of such disseminations.
1. Fingerprint comparison;
2. Prior contact with the center; or
3. Consent of the person whose records are requested.
  Such information may be disseminated to private individuals and businesses under the conditions specified in subparagraph (a)(1)(B) of this Code section upon payment of the fee for the request and when the request is made upon a form prescribed by the center. Such agencies may charge and retain fees as needed to reimburse such agencies for the direct and indirect costs of providing such information and shall have the same immunity therefor as provided in subsection (c) of this Code section.
1. The Georgia Crime Information Center shall be authorized to provide criminal history records, wanted person records, and involuntary hospitalization records information to the Federal Bureau of Investigation in conjunction with the National Instant Criminal Background Check System in accordance with the federal Brady Handgun Violence Prevention Act, 18 U.S.C. Section 921, et seq.
2. The records of the Georgia Crime Information Center shall include information as to whether a person has been involuntarily hospitalized. Notwithstanding any other provisions of law and in order to carry out the provisions of this Code section and Code Section 16-11-172, the Georgia Crime Information Center shall be provided such information and no other mental health information from the involuntary hospitalization records of the probate courts concerning persons involuntarily hospitalized after March 22, 1995, in a manner agreed upon by the Probate Judges Training Council and the Georgia Bureau of Investigation to preserve the confidentiality of patients' rights in all other respects. Further, notwithstanding any other provisions of law and in order to carry out the provisions of this Code section and Code Section 16-11-172, the center shall be provided information as to whether a person has been adjudicated mentally incompetent to stand trial or not guilty by reason of insanity at the time of the crime, has been involuntarily hospitalized, or both from the records of the clerks of the superior courts concerning persons involuntarily hospitalized after March 22, 1995, in a manner agreed upon by The Council of Superior Court Clerks of Georgia and the Georgia Bureau of Investigation to preserve the confidentiality of patients' rights in all other respects. After five years have elapsed from the date that a person's involuntary hospitalization information has been received by the Georgia Crime Information Center, the center shall purge its records of such information as soon as practicable and in any event purge such records within 30 days after the expiration of such five-year period.
3. 1. The records of the center shall include information as to whether a person has been involuntarily hospitalized. In order to carry out the provisions of Code Section 16-11-129, the center shall be provided such information and no other mental health information from the records of the probate and superior courts ordering persons to be involuntarily hospitalized. With respect to probate court records, such information shall be provided in a manner agreed upon by the Probate Judges Training Council and the bureau. With respect to superior court records, such information shall be provided in a manner agreed upon by The Council of Superior Court Clerks of Georgia and the bureau. Such records shall be provided in a manner so as to preserve the confidentiality of patients' rights in all other respects.
  2. In order to carry out the provisions of Code Section 16-11-129, the center shall be provided information as to whether a person has been adjudicated mentally incompetent to stand trial or has been found not guilty by reason of insanity at the time of the crime. The clerk of court shall report such information to the center immediately but in no case later than ten days after such adjudication of mental incompetence or finding of not guilty by reason of insanity.
The council is empowered to adopt rules, regulations, and forms necessary to implement this Code section. The council shall promulgate regulations to ensure the identity, confidentiality, and security of all records and data provided in accordance with this Code section.

(d.1)Reserved.

(d.2)(For effective date, see note.) When identifying information provided is sufficient to identify persons whose records are requested, local criminal justice agencies may disseminate criminal history records of in-state felony convictions, pleas, and sentences unless such records are restricted pursuant to Code Section 35-3-37, except as specifically authorized by Code Section 42-8-63.1, without:

(d.3)No fee charged pursuant to this Code section may exceed $20.00 per person whose criminal history record is requested or be charged to any person or entity authorized prior to January 1, 1995, to obtain information pursuant to this Code section without payment of such fee.

(d.4)The center shall place a high priority on inquiries from any nuclear power facility requesting a criminal history and shall respond to such requests as expeditiously as possible, but in no event shall a response be made more than two business days following receipt of the request.

(Ga. L. 1973, p. 1301, § 3; Ga. L. 1976, p. 1401, § 2; Ga. L. 1977, p. 1243, § 1; Ga. L. 1978, p. 1981, § 1; Ga. L. 1982, p. 3, § 35; Ga. L. 1988, p. 203, § 1; Ga. L. 1989, p. 1080, § 2; Ga. L. 1994, p. 1895, § 12; Ga. L. 1995, p. 139, § 3; Ga. L. 1995, p. 633, §§ 1, 2; Ga. L. 1996, p. 6, § 35; Ga. L. 2000, p. 1206, § 1; Ga. L. 2003, p. 840, § 1; Ga. L. 2005, p. 613, § 2/SB 175; Ga. L. 2006, p. 72, § 35/SB 465; Ga. L. 2006, p. 812, § 4/SB 532; Ga. L. 2012, p. 899, § 6-1/HB 1176; Ga. L. 2014, p. 599, § 1-13/HB 60; Ga. L. 2016, p. 443, § 6B-3/SB 367; Ga. L. 2020, p. 753, § 2-4/SB 288.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1995, subsections (d.1) and (d.2), enacted by Ga. L. 1995, p. 633, § 2, were redesignated as subsections (d.2) and (d.3).

Pursuant to Code Section 28-9-5, in 1995, "subparagraph (a)(1)(B)" was substituted for "subparagraph (B) of paragraph (1) of subsection (a)" in the undesignated paragraph at the end of subsection (d.2).

Pursuant to Code Section 28-9-5, in 2005, the single quotes were deleted from "Brady Handgun Violence Prevention Act" at the end of paragraph (e)(1).

Editor's notes.

- Ga. L. 1995, p. 139, § 7, not codified by the General Assembly, provides that no local ordinance which was in effect on March 22, 1995, shall be affected by Code Section 16-11-184 until January 1, 1996, at which time, unless enacted subsequent to March 22, 1995, as provided by that Code section, any such ordinance shall be of no further force or effect, and further provides that no ordinance or regulation attempting to regulate firearms in any manner shall be enacted by any county, city, or municipality after July 1, 1995.

Ga. L. 2012, p. 899, § 9-1/HB 1176, not codified by the General Assembly, provides that Part VI of this Act, which amended this Code section, shall become fully effective on July 1, 2013; provided, however, that for the purpose of preparing for implementation of Part VI of this Act, said part shall become effective on July 1, 2012.

Ga. L. 2014, p. 599, § 1-1/HB 60, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Safe Carry Protection Act.'"

Law reviews.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 290 (2012). For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 47 (2014). For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 139 (2016). For note on the 1994 amendment of this Code section, see 11 Ga. St. U. L. Rev. 137 (1994). For note on the 1995 amendment of this Code section and § 35-3-37, see 12 Ga. St. U. L. Rev. 118 (1995). For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 179 (2003).

JUDICIAL DECISIONS

Defendant must request criminal history of witnesses.

- State did not commit a due process violation under O.C.G.A. § 35-3-34(a)(2) by not providing information of the 1997 arrest of a witness to the defense during the trial rather than before trial because O.C.G.A. § 35-3-34 made criminal history records of witnesses in criminal cases available to the defendant upon written request, and the Georgia Supreme Court has held that Brady did not require the prosecution to turn over to the defense the criminal records of the state's witnesses. Jackson v. State, 306 Ga. 69, 829 S.E.2d 142 (2019).

Cited in Nasir v. Gwinnett County State Court, 341 Ga. App. 63, 798 S.E.2d 695 (2017); Ledbetter v. State, 349 Ga. App. 154, 825 S.E.2d 530 (2019).

OPINIONS OF THE ATTORNEY GENERAL

State free to maintain more or less restrictive access policy than contained in federal guidelines.

- Recent changes in the federal Law Enforcement Assistance Administration regulations indicate that these rules are to be viewed as broad guidelines which set the outermost limits on the collection, storage, and dissemination of criminal history data; under this concept, the states would be free to maintain a more restrictive policy regarding public access to criminal history records, unless through legislation, ordinance, or executive or court order a state elects to adopt a more liberal policy in regard to the public's right to gain access to criminal history information. 1976 Op. Att'y Gen. No. 76-57.

General Assembly expressed desire to narrowly open access to criminal records to the private sector for the limited purpose of making preemployment checks and job assignment decisions in certain circumstances, as well as to have such information to assist them in making a determination as to whether to prosecute persons apprehended on the premises who are engaged in a criminal act against the business. 1976 Op. Att'y Gen. No. 76-57.

Word "businesses," as used in paragraph (a)(1), is a general term, and is not restricted solely to profit motivated enterprises. 1976 Op. Att'y Gen. No. 76-57.

Employment agencies, credit corporations, and firms doing background checks not entitled to information.

- Subparagraph (a)(1)(A) refers to those individuals directly involved in making the ultimate decision as to whether to hire or transfer an individual to a new job assignment; accordingly, employment agencies, retail credit corporations, and firms doing background checks would not be entitled to criminal history information under this section. 1976 Op. Att'y Gen. No. 76-57.

Private security agency member not entitled to information.

- Private security agency member hired by a business to protect the business's property, or any other member of the security agency hired by a business, would not be entitled to the criminal history information on the individual the agency has apprehended, or the agency suspects of committing a crime, since the security agency is not the business against whom the crime or suspected crime has been committed. 1976 Op. Att'y Gen. No. 76-57.

Permissible to relax local querying requirement when adjudications of guilt on criminal suspects sought.

- Furnishing of adjudications of guilt to the personnel of a business on persons apprehended or suspected of having committed a specific criminal act, in which the victim is the business, is more in the nature of a criminal justice dissemination for which time in furnishing such information may be of the essence, so as not to prolong any detention of the individual apprehended; accordingly, it would be permissible to relax the local querying requirement when adjudications of guilt are sought. 1976 Op. Att'y Gen. No. 76-57.

Involuntary hospitalizations after March 22, 1995 must be reported to the Bureau of Investigation, even though the information is to be applied only to sales or transfers after January 1, 1996. 1996 Op. Att'y Gen. No. 96-5.

RESEARCH REFERENCES

Am. Jur. 2d.

- 66 Am. Jur. 2d, Records and Recording Laws, § 2.

C.J.S.

- 76 C.J.S., Records, §§ 76, 82 et seq., 116, 130, 131, 152.

ALR.

- Immunity of police or other law enforcement officer from liability in defamation action, 100 A.L.R.5th 341.

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