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Oregon Bulletin

March 1, 2011

 

Department of Oregon State Police
Chapter 257

Rule Caption: Amend OSP’s rules allowing criminal justice Regional Information Sharing Systems access to criminal offender information.

Adm. Order No.: OSP 1-2011

Filed with Sec. of State: 2-3-2011

Certified to be Effective: 2-28-11

Notice Publication Date: 1-1-2011

Rules Amended: 257-010-0015, 257-010-0020, 257-010-0025, 257-010-0045, 257-010-0050

Rules Repealed: 257-010-0015(T), 257-010-0020(T), 257-010-0025(T), 257-010-0045(T), 257-010-0050(T)

Subject: Pursuant to ORS 181.030, each member of the Department is authorized and empowered to prevent crime, pursue and apprehend offenders, obtain legal evidence necessary to ensure criminal convictions of offenders, institute criminal proceedings, and execute any lawful warrant or order of arrest issued against any person or persons for any violation of law. regional Information Sharing Systems (RISS) are inter-jurisdictional intelligence entities designed to identify, target, and remove criminal conspiracies and activities and terrorist conspiracies and activities that span jurisdictional boundaries, pursuant to 42 USC section 3796(h) and 28 CFR part 23. While membership in RISSs is limited to law enforcement agencies, how an RISS functions as an entity differs across the United States. In some cases, the RISS is operated and managed by a criminal justice agency. In other cases, the RISS is created as a distinct legal entity, i.e. a non-profit corporation. While the Department’s current administrative rules allow criminal justice agencies to access criminal offender information for criminal justice purposes, its rules do not allow RISSs created as distinct legal entities to access criminal offenders information. Allowing RISSs, even when they are created as distinct legal entities, clearly advances the duties and responsibilities placed on OSP by the Oregon legislature. The amendments to OAR 257-010-0015, 257-010-0020, 257-010-0025, 257-010-0045, and 257-010-0050 allow RISSs to access the Department’s criminal offender information so that both the RISSs and the Department can carry out their missions of stopping criminal and terrorist conspiracies and activities that occur across state jurisdictional lines.

Rules Coordinator: Cort Dokken—(503) 934-0228

257-010-0015

Definitions

As used in these rules:

(1) “Criminal Offender Information” means records, including fingerprints and photographs, received, compiled, and disseminated by the Oregon State Police for purposes of identifying criminal offenders and alleged offenders and maintained as to such persons’ records of arrest, the nature and disposition of criminal charges, sentencing, confinement (confinement shall not include the retention by the Oregon State Police of records of transfer of inmates between penal institutions or other correctional facilities), and release, and includes the OSP Computerized Criminal History System.

(2) “Agency Agreement” means a written agreement between OSP and a Criminal Justice or Designated Agency as defined by ORS 181.010 authorized to receive criminal offender information, or between OSP and any state, federal, Native American tribe or private agency specifically granted authority by statute to receive Oregon criminal offender information, specifying the terms and conditions of accessing and receiving Oregon CCH Information.

(3) “Computerized Criminal History (CCH) System” means the administration and maintenance of on-line computer files of significant criminal offender information.

(4) “OSP” means the Oregon State Police and includes the Identification Services Section (ISS) and the Law Enforcement Data System (LEDS).

(5) “Oregon CCH System” means the Oregon Computerized Criminal History System.

(6) “Federal Criminal Offender Information System” means the national computerized criminal history system maintained and operated by the Federal Bureau of Investigation (FBI) which includes the Interstate Identification Index.

(7) “Criminal Justice Agency” means:

(a) The Governor;

(b) Courts of Criminal Jurisdiction;

(c) The Attorney General;

(d) District Attorneys, City Attorneys with criminal prosecutive functions and public defender organizations established under ORS Chapter 151;

(e) Law Enforcement Agencies;

(f) The Department of Corrections;

(g) The State Board of Parole and Post-Prison Supervision;

(h) The Board on Public Safety Standards and Training; and

(i) Any other state or local agency with law enforcement authority designated by order of the Governor.

(8) “Designated Agency” means any state, county or municipal government agency where Oregon criminal offender information is required to implement a federal or state statute, executive order or administrative rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on such conduct or for agency employment purposes, or licensing purposes, or other demonstrated and legitimate needs when designated by order of the Governor.

(9) “Regional Information Sharing System (RISS)” means an interjurisdictional intelligence system, in whatever form, designed pursuant to 42 USC §3796(h) and 23 CFR Part 23 to identify, target, and remove criminal conspiracies and activities and terrorist conspiracies and activities that occur across law enforcement and state jurisdictional boundaries.

(10) “State Control Terminal” means the agency within each state which is responsible for the state’s computer link with the National Crime Information Center and National Law Enforcement Telecommunications System, Inc., and which is responsible for ensuring that NCIC and NLETS system security and operational policies and procedures are carried out within the state.

 (11) “Law Enforcement Agency” means county sheriffs, municipal police departments, state police, other police officers of this and other states, and law enforcement agencies of the federal government.

(12) “Administration of Criminal Justice” means performance of any of the following activities: Detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. The administration of criminal justice shall include criminal identification activities and the collection, storage, and dissemination of criminal history record information. Criminal justice employment investigations are included, as is the licensing of or issuing of a permit for a weapon or explosive when required to be performed by a Criminal Justice Agency, pursuant to a federal, state or local law.

(13) “Firearm Instant Check System” means information received from Oregon Gun Dealers as defined in 18 U.S.C. § 921, concerning the selling, leasing or otherwise transferring a firearm and compiled by the Oregon State Police under authority of ORS 166.412 for purposes of determining if the person purchasing the firearm is disqualified from purchasing a firearm under Oregon or Federal Law and if the firearm being purchased is stolen.

(14) “Authorized agency” means the Department of State Police or other governmental agency designated by the state to report, receive or disseminate criminal offender information.

(15) “Qualified entity” means a business or organization that:

(a) Provides care or placement services, or licenses or certifies others to provide care or placement services, for children, elderly persons or dependent persons;

(b) Is not governed by a state regulatory or licensing agency; and

(c) Has been determined by an authorized agency to meet the criteria established by the authorized agency by rule under subsection (9) ORS 181.533.

 (16) “Subject individual” means a person who is employed or seeks to be employed by a qualified entity or who is providing services or seeks to provide services to a qualified entity on a contractual or voluntary basis.

(17) “Organization” means a qualified entity that:

(a) Is exempt from taxation under section 501(c) of the Internal Revenue Code, as amended and in effect on January 1, 2002; and

(b) Provides mentoring programs or tutoring programs.

(18) “Tutoring program” means a program that provides a committed, sustained, one-to-one relationship between a volunteer and a youth, dependent person or elderly person. A sustained relationship typically lasts nine months or longer.

(19) “Youth” means a person who has not attained 18 years of age.

(20) “Dependent person” means a person who, because of physical or mental disability, or medical disability due to alcohol or drug dependence, needs mentoring or tutoring programs.

(21) “Elderly person” means a person 65 years of age or older.

Stat. Auth.: ORS 181.537, 181.538, 181.555, 181.556, 181.560(4), 183.310 - 183.550, 192.44 & 194.164

Stats. Implemented: ORS 181.538 & 181.556

Hist.: DSP 2, f. 6-14-74, ef. 7-11-74; DSP 4, f. 4-22-76, ef. 4-30-76; DSP 1-1981, f. & ef. 5-1-81; DSP 3-1981, f. 10-30-81, ef. 11-1-81; OSP 3-1988, f. 8-22-88, cert. ef. 9-1-88; OSP 1-1990, f. & cert. ef. 6-4-90; OSP 1-1991, f. 5-17-91, cert. ef. 7-1-91; OSP 4-1993, f. & cert. ef. 12-20-03; OSP 4-1994, f. & cert. ef. 8-2-94; OSP 3-1996, f. & cert. ef. 3-22-96; OSP 1-2002, f. & cert. ef. 3-8-02; OSP 4-2010(Temp), f. 6-29-10, cert. ef. 7-1-10 thru 12-28-10; Administrative correction 1-25-11; OSP 1-2011, f. 2-3-11, cert. ef. 2-28-11

257-010-0020

System Responsibilities

(1) Maintenance and Dissemination of Criminal Offender Information. The Oregon State Police has statutory and administrative responsibility for the maintenance and dissemination of criminal offender information in Oregon.

(2) Accuracy and Completeness of Information. Information entered into Criminal Offender Information files is based on written documents submitted to the OSP by Criminal Justice Agencies reporting their record of official action, which documents contain fingerprint or other verification as to the identity of the individual to whom the information refers:

(a) OSP is responsible for the accuracy and completeness of information entered into the Oregon Criminal Offender Information System and any information subsequently transmitted for inclusion in the FBI Interstate Identification Index;

(b) This responsibility extends only to information contained in the documents as submitted to OSP.

(3) Removal of Information. OSP is responsible for removal of information from the Oregon and Federal Criminal Offender Information Systems when required by law or court order. In the event the OSP discovers there has been an erroneous entry in criminal offender information records maintained by OSP or the FBI, OSP shall correct or purge the inaccurate information.

(4) Entry of Information. Only terminals located at the OSP, Identification Services Section or others designated by the Superintendent of the OSP are allowed to enter, update, or modify records in the Oregon CCH File. Entry of information by other forms of electronic communications, as in the case of integration of computer systems, must be approved by the Superintendent of the OSP.

(5) Information to Qualified Criminal Justice and Designated Agencies. OSP is responsible for providing Criminal Offender Information to qualified Criminal Justice and Designated Agencies. Such information will be furnished, after proper inquiry, in either computerized or document form.

(6) Information to Regional Information Sharing Systems. OSP is responsible for providing Criminal Offender Information in computerized form to Regional Information Sharing Systems. Such information will be furnished, after proper inquiry, only if it exists in computerized form.

(7) Development of Operational Procedures. OSP is responsible for development of operational procedures to be followed by Criminal Justice and Designated Agencies permitted access to Oregon Criminal Offender Information and FBI Interstate Identification Index files.

(8) All Criminal Offender information distributed by the OSP shall contain a notice in writing in substantially the following language: Because additions or deletions may be made at any time, a new CCH record should be requested when needed for subsequent use.

(9) All agencies shall insofar as is feasible, taking into consideration the then existing capability of the OSP to respond, request and obtain a current criminal offender information record when that record is to be disseminated outside that agency.

(10) NCIC and NLETS Control Terminal Responsibility. OSP is the “state control terminal” for the NCIC and NLETS computer interface to Oregon and is responsible for assuring that all policies and rules for computer access to Oregon and Federal Criminal Offender Information Systems are adhered to by Oregon user agencies and Regional Information Sharing Systems.

(11) System Development and Operation. OSP is responsible for providing the computer hardware and software capabilities necessary to insure secure access, efficient processing and integrity of the information stored in the Oregon Criminal Offender Information System and for interfacing to the Federal Criminal Offender Information System.

 (12) Physical Security of Computer Installation. OSP is responsible for development and implementation of policies and procedures to safeguard the criminal offender information at the central computer site from accidental or malicious damage or unauthorized access or use.

(13) Audit and Inspection of the User Agencies. OSP is responsible for periodically auditing and inspecting each computer terminal location accessing Oregon and Federal Criminal Offender Information to insure compliance with state and federal law, published rules, policies, and procedures.

(14) CCH computer terminal transaction records will be maintained at and by OSP and will be made available, upon written request, to participating Criminal Justice Agencies.

Stat. Auth.: ORS 181.555, 181.560(4), 183.310 - 183.550 & 192.440

Stats. Implemented: ORS 166.291, 166.412 & 181.880

Hist.: DSP 2, f. 6-14-74, ef. 7-11-74, DSP 4, f. 4-22-76, ef. 4-30-76; OSP 1-1990, f. & cert. ef. 6-4-90; OSP 4-1993, f. & cert. ef. 12-20-93; OSP 1-2002, f. & cert. ef. 3-8-02; OSP 4-2010(Temp), f. 6-29-10, cert. ef. 7-1-10 thru 12-28-10; Administrative correction 1-25-11; OSP 1-2011, f. 2-3-11, cert. ef. 2-28-11

257-010-0025

Access to and Use of Criminal Offender Information

(1) Access to OSP criminal offender information by any means shall be limited to:

(a) Criminal Justice Agencies, where the information is to be used for the administration of criminal justice, Criminal Justice Agency employment, or the information is required to implement a federal or state statute, local ordinance, Executive Order, or administrative rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on such conduct, or other demonstrated and legitimate needs;

(b) Designated Agencies upon Executive Order of the Governor, where the information is required to implement a federal or state statute, Executive Order, or administrative rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on such conduct or for agency employment purposes, or licensing purposes, or other demonstrated and legitimate needs:

(A) When a Designated Agency requests criminal offender information about an individual from OSP under ORS 181.555(1) for agency employment, licensing or other permissible purposes, the agency shall provide documentation that the individual:

(i) Gave prior written consent for the agency to make a criminal offender record check through the OSP; or

(ii) Has received written notice from the agency that a criminal offender record check may be made through the OSP. Notice shall be provided prior to the time the request is made and shall include: Notice of the manner in which the individual may be informed of the procedures adopted under ORS 181.555(3) for challenging inaccurate criminal offender information; and notice of the manner in which the individual may become informed of rights, if any, under Title VII of the Civil Rights Act of 1964; and notice that discrimination by an employer on the basis of arrest records alone may violate federal civil rights law and that the individual may obtain further information by contacting the Bureau of Labor and Industries.

(B) When an authorized agency or organization requests, in written form, criminal offender information about an individual from OSP under ORS 181.555(1), that agency will be charged a fee of $4 for each individual checked (fee does not apply when check is made by agency using their LEDS terminal).

(c) Qualified entities upon successful determination as being a qualified entity by the OSP Identification Services Section. Qualified entities may request from OSP Identification Services Section a criminal records check for purposes of evaluating the fitness of a subject individual as an employee, contractor or volunteer. The OSP Identification Services Section may access state and federal criminal records only through use of the subject individual’s fingerprints.

(A) Before the OSP Identification Services Section conducts a criminal records check based on the subject individual’s fingerprints:

(i) The OSP Identification Services Section shall determine whether the entity requesting the criminal records check is a qualified entity as defined in 257-010-0015(15) and has executed a user agreement making that determination;

(ii) The qualified entity must establish criteria to be used by the OSP Identification Services Section in reviewing the criminal offender information for a final record check determination;

(iii) The qualified entity must provide the criteria established under paragraph (ii) of this subsection to the OSP Identification Services Section; and

(iv) The qualified entity must have informed the subject individual that the qualified entity might request a fingerprint-based criminal records check and that the subject individual may obtain a copy of the record check report from, or challenge the accuracy or completeness of the record check report through, the OSP Identification Services Section or the Federal Bureau of Investigation.

(B) Upon receipt of a subject individual’s criminal offender information, the OSP Identification Services Section shall make a final record check determination by comparing the criminal offender information with the criteria provided to the OSP Identification Services Section by the qualified entity under subsection (A)(ii) of this section. In making the final record check determination, the OSP Identification Services Section may only consider information that the Department of State Police may disclose under ORS 181.560. The OSP Identification Services Section may only consider records of any conviction, or of any arrest less than one year old on which there has been no acquittal or dismissal.

(C) The OSP Identification Services Section shall only respond to a qualified entity’s inquiry concerning a subject individual in the following manner and shall not provide specific criminal offender information:

(i) Yes. (No disqualifying criteria established by the qualified entity and ORS 181.560 was found.)

(ii) No. (One or more disqualifying criteria established by the qualified entity and ORS 181.560 was found.)

(d) Regional Information Sharing Systems, where the information is to be used to identify, target, and remove criminal conspiracies and activities and terrorist conspiracies and activities that occur across law enforcement and state jurisdictional boundaries. Access to Oregon Criminal Offender Information by Regional Information Sharing Systems is limited to only Oregon Criminal Offender Information that exists in computerized format;

(e) A person or agency not defined as a Criminal Justice, Designated Agency, or Qualified Entity has access only through the OSP Identification Services Section pursuant to ORS 181.555 and 181.560. The request must be submitted in writing and may be hand carried or mailed to the OSP Identification Services Section. A fee of $10 will be charged for each check. A fee of $5 will be charged for each request for copy certification by a notary public in addition to any other applicable fee. Checks are to be made payable to the Oregon State Police. Inquiries are to be addressed to Oregon State Police, Identification Services Section, 3772 Portland Road N.E., Salem, OR 97303. Inquiries may also be made through the OSP webpage at www.osp.state.or.us, when a customer account is established for billing purposes.

(A) The requesting party must furnish OSP with sufficient information to assist identifying and notifying the individual of interest. If the information is sought for employment purposes the requester must state on the written request that the individual has been so advised and the manner in which the individual was so advised;

(B) These individuals will be advised by letter the name of the requestor, and that they are allowed to review their criminal history for inaccurate or incomplete information. They will also be advised that they may become informed of certain rights under Title VII of the Civil Rights Act of 1964 by contacting the Bureau of Labor and Industries;

(C) If a challenge is received prior to the end of the statutory 14 day waiting period, response to the requester will be held in abeyance until the challenge is resolved;

(D) OSP will respond to all requests and furnish Oregon conviction information and any arrest information less than one year old on which there has been no acquittal or dismissal. If the compiled information does not meet the above criteria or there is no record of the subject, OSP will reply to the requester that there is no criminal record.

(2) Access to Oregon CCH information by means of computer terminals shall be limited to Criminal Justice Agencies,  Designated Agencies, and Regional Information Sharing Systems using their respective identification number (ORI) as authorized by OSP in an “Agency Agreement.” Access to FBI criminal offender information by a Regional Information Sharing System is authorized, pursuant to an OSP “Agency Agreement,” only upon a showing that the system is authorized under Title 28, United States Code, Section 534 and Title 28, Code of Federal Regulations, Part B & C, to receive such FBI criminal offender information.

(3) Oregon criminal offender information may be shared between authorized Criminal Justice and Designated Agencies, and between Regional Information Sharing Systems and their respective participating law enforcement agencies. All other secondary dissemination of criminal offender information is prohibited unless expressly permitted by Oregon Revised Statute. Dissemination of Oregon criminal offender information by the Department of Human Services or the Employment Department to public or private agencies authorized by ORS 181.537(1)(d) shall be limited to persons with a demonstrated and legitimate need to know the information. Such need must be demonstrated to the satisfaction of the Department of Human Services or the Employment Department responsible for the dissemination of the information. Title 28, United States Code, Section 534 and Title 28, Code of Federal Regulations, Section 20.33(b), prohibits dissemination of FBI criminal offender information to public or private agencies by Criminal Justice or Designated Agencies. Inquiries for nonofficial purposes or the checking of records for unauthorized persons or agencies is prohibited. A person wishing to review their criminal history record maintained by the FBI should write to: Federal Bureau of Investigation, CJIS Division, Attn: SCU, Module D2, 1000 Custer Hollow Road, Clarksburg, West Virginia, 26306. The FBI will inform the person how to obtain a copy of their record and, if necessary, how to challenge the accuracy or completeness of that record.

(4) Criminal offender information may be furnished to authorized Criminal Justice, Designated Agency, and Regional Information Sharing System employees and no person who has been convicted of a crime which could have resulted in a sentence to a federal or state penitentiary will be allowed to operate a computer terminal accessing CCH information or have access to Criminal offender information. All authorized agency or system employees as described above must be fingerprinted and the fingerprint card submitted to OSP. The fingerprint cards will be searched against the state and federal criminal record files. The “Reason Fingerprinted” may be for criminal justice employment such as “Police Officer,” “Corrections Officer” or “Access to CCH.” These fingerprint cards will be retained by OSP and entered into the CCH File. Exceptions to this rule may be made in extraordinary circumstances upon written application to the Superintendent of the Oregon State Police setting forth such circumstances. The Superintendent of OSP will maintain a central file where such exception authorization shall be filed.

(5) Screening of Criminal Justice, Designated Agency, and Regional Information Sharing System employees who have access to CCH or criminal offender information records is the responsibility of the employing agency or system.

(6) Any Criminal Justice, Designated Agency, or Regional Information Sharing System that obtains Oregon or FBI criminal offender information, either directly through that agency’s or system’s computer terminal, through the computer terminal of another agency or system, or directly from OSP, must have executed a written “Agency Agreement” with the OSP prior to such access. Any public or private agency receiving Oregon criminal offender information from the Department of Human Services or the Employment Department pursuant to ORS 181.537(1)(c) or (d) must have executed a written “Agency Agreement” with the Department of Human Services or the Employment Department prior to receiving the information. Dissemination of Oregon criminal offender information received under authority of ORS 181.537(1)(d) by a public or private agency is strictly prohibited.

(7) Security of computer terminals. Any computer terminal with CCH accessing capability must be physically secure and placed in a location not available to unauthorized persons. Computer terminals must be so placed that unauthorized persons may not observe the content of messages transmitted or received on such computer terminal.

(8) Security of criminal offender information records. Any Criminal Justice, Designated Agency, Regional Information Sharing System, or private entity obtaining or receiving criminal offender information shall maintain those records in secure files, available only to authorized agency employees, until they are destroyed by burning, shredding or secure and confidential recycling and shall treat those records in such a manner that the record does not become public information in any later proceeding, except through court order or as otherwise provided by law.

(9) Radio Transmission. Any radio transmission of criminal offender information records shall be limited to essential details only, with information identifying individuals and offenses concealed insofar as possible. Plain text transmission of an entire (summary or full CCH) record is prohibited.

(10) Fee for relief from the bar of purchasing/possessing a firearm. When a person barred from possessing a firearm under ORS 166.250(1)(c)(A), (B), (D) or (E) or barred from purchasing a firearm under ORS 166.470 and is granted relief from the bar by a court under ORS 166.274, a fee of $12 will be charged to enter and maintain this information in the CCH File as authorized under ORS 166.274(4)(c).

(11) Fee for conducting applicant and regulatory fingerprint based criminal record background check when fingerprint card is retained in the CCH File. A fee of $27 will be charged to conduct a fingerprint based criminal record background check when the fingerprint card and related information is entered and maintained in the CCH File.

(12) Fee for conducting applicant and regulatory fingerprint based criminal record background check when fingerprint card is not retained in the CCH File. A fee of $28 will be charged to conduct a fingerprint based criminal record background check when the fingerprint card and related information is returned to the contributor or destroyed by the ISS. This fee will be waived as provided in ORS 181.556(1) & (2).

(13) Fee for conducting applicant and regulatory fingerprint based criminal record background check for qualified entity based on criteria established by the qualified entity. A fee of $52 will be charged to conduct a fingerprint based criminal record background check and fitness determination. The fingerprint card and results of the fitness determination will be returned to the contributor. This fee will be waived as provided in ORS 181.556(1) & (2).

(14) Agencies authorized by Oregon Revised Statute or federal law to submit fingerprint record checks to the FBI, Identification Division via OSP, are responsible to pay the prevailing user fee charged by the FBI for those fingerprint record checks in addition to the OSP user fee, except as otherwise provided by state or federal law.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 166.291, 166.412, 181.537, 181.555, 181.560(4), 183.310 - 183.550, 192.440 & 194.164

Stats. Implemented: ORS 166.291, 166.412 & 181.880

Hist.: DSP 2, f. 6-14-74, ef. 7-11-74; DSP 4, f. 4-22-76, ef. 4-30-76; DSP 1-1981, f. & ef. 5-1-81; DSP 3-1981, f. 10-30-81, ef. 11-1-81; DSP 1-1982, f. 3-12-82, ef. 3-15-82; OSP 1-1990, f. & cert. ef. 6-4-90; OSP 1-1991, f. 5-17-91, cert. ef. 7-1-91; OSP 1-1992, f. 3-17-92, cert. ef. 3-18-92; OSP 4-1993, f. & cert. ef. 12-20-93; OSP 4-1994, f. & cert. ef. 8-2-94; OSP 3-1996, f. 5-24-96, cert. ef. 7-1-96; OSP 1-2002, f. & cert. ef. 3-8-02; OSP 1-2005(Temp), f. & cert. ef. 3-1-05 thru 8-27-05; OSP 3-2005, f. & cert. ef. 9-12-05; OSP 4-2010(Temp), f. 6-29-10, cert. ef. 7-1-10 thru 12-28-10; Administrative correction 1-25-11; OSP 1-2011, f. 2-3-11, cert. ef. 2-28-11

257-010-0045

Violation of Rules

(1) Willful violation of Oregon Revised Statute, Executive Order or published rules relating to the Oregon Criminal Offender Information System by any authorized agency, Regional Information Sharing System, or employee may result in immediate termination of such agency’s authorization to receive such information from the Oregon and/or Federal Criminal Offender Information Systems.

(2) Reinstatement will be effected only upon demonstration by the agency or system that the cause of such violation has been corrected. Final determination as to the reinstatement of any agency or system so terminated will be the responsibility of the OSP.

Stat. Auth.: ORS 181.555, 181.560(4), 183.310 - 183.550 & 192.440

Stats. Implemented: ORS 166.291, 166.412 & 181.880

Hist.: DSP 2, f. 6-14-74, ef. 7-11-74; DSP 4, f. 4-22-76, ef. 4-30-76; OSP 1-1990, f. & cert. ef. 6-4-90; OSP 4-1993, f. & cert. ef. 12-20-93; OSP 4-2010(Temp), f. 6-29-10, cert. ef. 7-1-10 thru 12-28-10; Administrative correction 1-25-11; OSP 1-2011, f. 2-3-11, cert. ef.
2-28-11

257-010-0050

Rights of Appeal

A Criminal Justice, Designated Agency, Regional Information Sharing System, or employee desiring to appeal any action, order, or administrative ruling by the OSP may proceed under the provisions of Rules 30.00 to 30.80 of the Attorney General’s Model Rules of Practice and Procedures under the Administrative Procedure Act relating to contested cases and judicial review.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 181.555, 181.560(4), 183.310 - 183.550 & 192.440

Stats. Implemented: ORS 166.291, 166.412 & 181.880

Hist.: DSP 2, f. 6-14-74, ef. 7-11-74; DSP 4, f. 4-22-76, ef. 4-30-76; OSP 1-1990, f. & cert. ef. 6-4-90; OSP 4-1993, f. & cert. ef. 12-20-93; OSP 4-2010(Temp), f. 6-29-10, cert. ef. 7-1-10 thru 12-28-10; Administrative correction 1-25-11; OSP 1-2011, f. 2-3-11, cert. ef.
2-28-11

 

Rule Caption: Revises the authority of Law Enforcement to access Firearm Instant Check System information for criminal investigations.

Adm. Order No.: OSP 2-2011

Filed with Sec. of State: 2-3-2011

Certified to be Effective: 2-28-11

Notice Publication Date: 1-1-2011

Rules Amended: 257-010-0055

Rules Repealed: 257-010-0055(T)

Subject: This rule amend Oregon Administrative Rules (OAR) 257-010-0055 be deleting that portion of subsection (2) that authorizes law enforcement agencies to access the Department’s Firearm Instant Background Check System (FICS) when they are conducting general criminal investigations. ORS 166.412(8) provides that “[a] law enforcement agency may inspect the records of a gun dealer relating to transfers of handguns with the consent of a gun dealer in the course of a reasonable inquiry during a criminal investigation or under the authority of a properly authorized subpoena or search warrant.” Effective December 7, 2000, the provisions of ORS 166.412 apply to the transfer of firearms other than handguns to the same extent that they apply to the transfer of handguns. See ORS 166.434(1). The Department has recently revised its policy to discontinue the practice of law enforcement accessing FICS for criminal investigatory purposes and this rule implements that policy.

Rules Coordinator: Cort Dokken—(503) 934-0228

257-010-0055

Firearm Instant Check System

(1) The Oregon Firearm Instant Check System is a computerization of firearm and firearm purchaser information, and is maintained by the OSP under provisions of Oregon Law. The purpose of the Firearm Instant Check System is to receive information from Oregon Gun Dealers and private citizens at gun shows or voluntarily from the public and determine if the person purchasing the firearm is disqualified under Oregon (ORS 166.470) and Federal Law from completing the purchase of a firearm and if the firearm being transferred is stolen.

(2) The OSP may retain a record of the information obtained during a request for a criminal records check for no more than five years.

(3) The record of the information obtained by the OSP during a request for a criminal records check by a gun dealer is exempt from disclosure under public records law.

(4) Identification required of the purchaser shall include one piece of current identification bearing a photograph and date of birth of the purchaser that is issued under the authority of the United States government, a state, a political subdivision of a state, a foreign government, a political subdivision of a foreign government, an international governmental organization or an international quasi-governmental organization; and is intended to be used for identification of an individual or is commonly accepted for the purpose of identification of an individual.

(5) If the identification presented by the purchaser under (4) of this rule does not include the current address of the purchaser, the purchaser shall present a second piece of current identification that contains the current address of the purchaser and corroborates the name on the first piece of identification. Examples of a second piece of identification that will be accepted are: current vehicle registration, current rent receipt and current utility bill.

(6) The OSP may require that the gun dealer verify the identification of the purchaser if that identity is in question by sending the thumbprints of the purchaser to the OSP, Identification Services Section. The OSP shall publish the firearms transaction thumbprint form and shall furnish the form to gun dealers on application at cost.

(7) The OSP may adopt a fee schedule for criminal history record checks and collect a fee for each criminal history record check requested. The fee schedule shall be calculated to recover the cost of performing criminal history record checks, but may not exceed $10 per record check.

(8) The OSP may respond to a telephone request from any person requesting that the OSP determine if the firearm is stolen.

(9) The Department of State Police shall develop a state form to be completed by a person seeking to obtain a firearm at a gun show from a transferor other than a gun dealer. The department shall consider including in the form all of the requirements for disclosure of information that are required by federal law for over-the-counter firearms transactions.

(10) The department shall make the form available to the public at no cost.

Stat. Auth.: ORS 166.291, 166.412, 192.440 & 194.164

Stats. Implemented: ORS 166.291, 166.412 & 181.880

Hist.: OSP 3-1996, f. 5-24-96, cert. ef. 7-1-96; OSP 1-2002, f. & cert. ef. 3-8-02; OSP 1-2010(Temp), f. 5-17-10 cert. ef. 5-28-10 thru 11-23-10; Administrative correction 12-28-10; OSP 2-2011, f. 2-3-11, cert. ef. 2-28-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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