GBADA-E Fingerprint-Based Criminal History Record Information (CHRI) Checks made for Non-Criminal Justice Purposes

File:  GBADA – E

 

Fingerprint-Based Criminal History Record Information (CHRI) Checks made for Non-Criminal Justice Purposes

DEFINITIONS

1.  Direct and Unmonitored Contact with Children

As determined by the Massachusetts Department of Education, for purposes of implementation of this Policy,~"direct and unmonitored contact with children”~means contact with a child when no other Fingerprint-based CHRI cleared employee of the school or district is present. “Contact" refers to any contact with a student that provides the individual with opportunity for physical touch or personal communication. FPS will determine when there is potential for direct and unmonitored contact with children by assessing the circumstances and specific factors including but not limited to, whether the individual will be working in proximity with students, the amount of time the individual will spend on school grounds, and whether the individual will be working independently or with others. A person having only the potential for incidental unsupervised contact with children in commonly used areas of the school grounds, such as hallways, shall not be considered to have the potential for direct and unmonitored contact with children. These excluded areas do not include bathrooms and other isolated areas (not commonly used and separated by sight or sound from other staff) that are accessible to students.

2.  Applicants for employment

An applicant for employment is defined as any person under consideration for hire as an employee to provide services to students where the position has the potential for direct and unmonitored contact with students. The Superintendent or his/her designee shall determine whether the position for which application is made involves direct and unmonitored contact with children.

3.  Current Employee

A current employee is a person who is currently employed by the FPS in any position which may involve direct and unmonitored contact with children. The Superintendent or his/her designee shall determine whether the employee's position involves direct and unmonitored contact with children.

4.  Volunteer

A volunteer is defined as any person who works in an unpaid capacity for the FPS or a related entity such as the Franklin PCC or LifeLong Learning program and who may have direct and unmonitored contact with children. The Superintendent or his/her designee shall determine whether a particular category of volunteer activity entails direct and unmonitored contact with children.

5.  Taxicab Drivers

Taxi drivers are individuals employed by vendors who provide special education transportation to FPS special education students. All taxi companies contracting with FPS must provide FPS with the names of drivers who will be transporting FPS students in order for FPS to request Fingerprint-based CHRI.

6.  Subcontractors and laborers

Subcontractors and laborers are individuals performing work on school premises who are not employees of FPS and who may have direct and unmonitored contact with children in the course of their job performance.

Requesting CHRI checks

Fingerprint-based CHRI checks will only be conducted as authorized by M.G.L. c. 71 §38R and 42 U.S.C. §16962, in accordance with all applicable state and federal rules and regulations, and in compliance with M.G.L. c. 6, §§167-178 and 803 CMR §§2.00, et.seq.   If an applicant or employee is required to submit to a fingerprint-based state and national criminal history record check, he/she shall be informed of this requirement and instructed on how to comply with the law.  Such instruction will include information on the procedure for submitting fingerprints.  In addition, the applicant or employee will be provided with all information needed to successfully register for a fingerprinting appointment e.g., vendor web site address, Provider Identification Number (Provider ID).

Access to CHRI

All CHRI is subject to strict state and federal rules and regulations in addition to Massachusetts Fingerprint-based CHRI laws and regulations.  CHRI cannot be shared with any unauthorized entity for any purpose, including subsequent hiring determinations.  All receiving entities are subject to audit by the Massachusetts Department of Criminal Justice Information Services (DCJIS) and the FBI, and failure to comply with such rules and regulations could lead to sanctions.  Title 28, U.S.C., §534, Pub. L. 92-544 and Title 28 C.F.R. 20.33(b) provide that the exchange of records and information is subject to cancellation if dissemination is made outside of the receiving entity or related entities.  Furthermore, an entity can be charged criminally for the unauthorized disclosure of CHRI.

Storage of CHRI

CHRI shall only be stored for extended periods of time when needed for the integrity and/or utility of an individual’s personnel file.  Administrative, technical, and physical safeguards, which are in compliance with the most recent CJIS Security Policy, have been implemented to ensure the security and confidentiality of CHRI.  The CJIS Security Policy can be found here:  http://www.mass.gov/eopss/law-enforce-and-cj/cjis/fbi-cjis-secuirty-policy.html each individual involved in the handling of CHRI is to familiarize himself/herself with these safeguards.

In addition to the above, each individual involved in the handling of CHRI will strictly adhere to the policy on the storage, retention and destruction of CHRI.

 

Retention and Destruction of CHRI

Federal Law prohibits the repurposing or dissemination of CHRI beyond its initial requested purpose.  Once and individual’s CHRI is received, it will be securely retained in internal agency documents for the following purposes:  only:  

  • Historical reference and/or comparison with future CHRI requests;
  • Dispute of the accuracy of the record;
  • Evidence for any subsequent proceedings based on information contained in the CHRI.

CHRI will be kept and secured for the above purposes in the Human Resources File Room.

When no longer needed, CHRI and any summary of CHRI data must be destroyed by shredding paper copies and/or by deleting all electronic copies from the electronic storage location including backup copies or files.  The shredding of paper copies of CHRI by an outside vendor must be supervised by an employee of the Franklin Public Schools.

CHRI Training

An informed review of a criminal record requires training.  Accordingly, all personnel authorized to receive and/or review CHRI at Franklin Public Schools will review and become familiar with the educational and relevant training materials regarding SAFIS and CHRI laws and regulations made available by the appropriate agencies, including the DCJIS.

Determining Suitability

In determining an individual’s suitability, the following factors will be considered:

  • The Superintendent or their designee may consider factors, including but not limited to:
  • Age of the applicant at the time of the offense and/or conviction;
  • Degree of satisfaction of any parole or probation conditions;
  • Seriousness and specific circumstances of the offense;
  • Relationship of the criminal act to the nature of work to be performed;
  • The nature of the work to be performed;
  • The number of offenses;
  • The date of the offenses and dispositions thereof; and
  • Any relevant evidence of rehabilitation or lack thereof;
  • Whether the applicant has pending charges
  • In reviewing the criminal record of an individual to determine whether to use discretion to disqualify the individual, the Superintendent or their designee may request that the individual submit additional information, including a letter from the individual’s probation or parole office.  The Superintendent or his/her designee may also contact police, courts, or prosecuting attorneys for additional information relevant to assessing the review standards described above.

A record of the suitability determination will be retained.  The following information will be included in the determination:

  • The name and date of birth of the employee or applicant;
  • The date on which the school employer received the national criminal history check results; and
  • The suitability determination (either “suitable” or “unsuitable”)

A copy of an individual’s suitability determination documentation must be provided to another school employer, or to the individual, upon request of the individual for whom the school employer conducted a suitability determination.

Relying on Previous Suitability Determination.

When an individual for whom a school employer or the Department of Elementary and Secondary Education has made a suitability determination applies to work for the Franklin Public Schools, FPS may obtain and may rely on a favorable suitability determination, if the following criteria are met:

 

  • The suitability determination was made within the last 7 years; and
  • The individual has not resided outside Massachusetts for any period longer than three (3) years since the suitability determination was made; and either
  • The individual has been employed continuously for one or more school employers or has gaps totaling no more than two (2) years in his or her employment for school employers; or
  • If the individual works as a substitute employee, the individual is still deemed suitable for employment by the school employer who made a favorable suitability determination.  Upon request of another school employer, the initial school employer shall provide documentation that the individual is still deemed suitable for employment by initial school employer.  

 Adverse Decisions Based on CHRI

If inclined to make an adverse decision based on an individual’s CHRI, Franklin Public Schools, will take the following steps prior to making a final adverse determination:

  • Provide the individual with a copy of his/her CHRI used in making the adverse decision;
  • Provide the individual with a copy of this CHRI policy;
  • Provide the individual the opportunity to complete or challenge the accuracy of his/her CHRI; and
  • Provide the individual with information on the process for updating, changing, or correcting CHRI.

A final adverse decision based on an individual’s CHRI will not be made until the individual has been afforded a reasonable time depending on the particular circumstances, to correct or complete the CHRI.

Secondary Dissemination of CHRI

If an individual’s CHRI is released to another authorized entity, a record of that dissemination must be made in the secondary dissemination log.  The secondary dissemination log is subject to audit by the DCJIS and the FBI.

The following information will be recorded in the log:

  • Subject name;
  • Subject Date of Birth;
  • Date and Time of the dissemination;
  • Name of the individual to whom the information was provided;
  • Name of the agency for which the requestor works;
  • Contact information for the requestor; and
  • The specific reason for the request.

Reporting to Commissioner of Elementary and Secondary Education

Pursuant to M.G.L. ch 71, §71R and 603 CMR 51.07 , if Franklin Public Schools dismisses, declines to renew the employment of, obtains the resignation of, or declines to hire a licensed education or an application for a Massachusetts educator license because of information discovered through a state or national criminal record check, Franklin Public Schools shall report such decision or action to the Commission of Elementary and Secondary Education in writing within thirty (30) days of the employer action or educator resignation.  The report shall be in a form requested by the Department and shall include the reason for the action or resignation as well as a copy of the criminal record check results.  Franklin Public Schools shall notify the employee or applicant that it has made a report pursuant to 603 CMR 51.07(1) to the Commissioner.

Pursuant to M.G.L. Ch. 71, §71R and 603 CMR 51.07, if Franklin Public Schools discovers information from a state or national criminal record check about a licensed educator or an applicant for a Massachusetts educator license that implicates grounds for license action pursuant to 603 CMR 7.15(8)(a), Franklin Public Schools shall report to the Commissioner in writing within thirty (30) days of the discovery, regardless of whether Franklin Public Schools retains or hires the educator as an employee.  The report must include a copy of the criminal record check results.  The school employer shall notify the employee or applicant that it has made a report pursuant to 603 CMR 51.07(2) to the Commissioner and shall also send a copy of the criminal record check results to the employee or applicant.

 
Adopted by School Committee:  5/27/2014
Reviewed; Revised:  5/20/21