Facts and Procedural History:

Scott J. Riggs, attorney for the City of New Prague (City), asked the Commissioner to issue an advisory opinion about data that the City police department maintains. Tim Warnemunde, attorney for the data subject, provided comments on behalf of his client.

The City provided the following summary of the facts:

In late 2017, the [Police] Department’s responsible authority received a written request for data. The request for data included the following:

1. DD Form 369, Dec. 2014 – Police Record Check; and
2. Standard For 86 – Questionnaire for National Security Positions – Authorization for the Release of Information

Copies of the documents received by the Department are attached for your review.

The requests sought police records related to M.B. The person requesting the information was identified in the request at [sic]… a U.S. Navy Recruiter….

…

Based on the terms of the Standard Form 86, the requestor was relying on obtaining the requested data to carry out the powers and duties contained in 5 U.S.C. section 9101. In relevant part, that statute provides that local law enforcement agencies shall provide “criminal history record information” which includes “records of a State or locality sealed pursuant to law if such records are accessible by the State and local criminal justice agencies for purpose of conducting background checks.”

In response to this request, the City provided the requester with a summary of contacts the data subject had with the police department. The summary included an entry for an arrest for fifth degree drug sales, under Minnesota Statutes, section 152.025, subdivision 1, which occurred when the subject was a juvenile. 

In March of 2018, the police department received a court order sealing/expunging the record of the arrest. The City expects to receive a request similar to the one it received in early 2017 and sought clarification on the effect of the expungement order on the records the City maintains.

Issue:

Discussion:

Minnesota Statutes, Chapter 609A governs the process for and the effect of an expungement order on access to criminal records. (See also Minnesota Statutes, Chapter 260B, regarding expungement of juvenile delinquency records.) The Chapter limits who may have access to sealed records and under which conditions:

Notwithstanding section 13.82, 13.87, or any other law to the contrary, if the court issues an expungement order it may require that the criminal record be sealed, the existence of the record not be revealed, and the record not be opened except [under certain circumstances]. (Minnesota Statutes, section 609A.03, subdivision 5(d).)

Thus, when a court seals criminal records, those records may only be accessed as provided under the court order, Chapters 609A and 260B, or as otherwise authorized in law. Though the records continue to exist, they are no longer subject to the Data Practices Act and consequently, any prior data classifications under that law do not impact access to those records. Moreover, the rights granted to data subjects under the Data Practices Act – including the right to access data about themselves in ten business days and the right to give informed consent to a third party – no longer apply. (The effect of an expungement order is similar to the effect of Minnesota Statutes, section 13.393, which relates to certain types of records created by an attorney acting in a professional capacity for a government entity. That provision essentially removes the records from the Data Practices Act and provides that access to attorney records is governed instead, by the Minnesota Rules of Court. See Advisory Opinions 01-075, 03-003, and 05-009.) 

Minnesota law allows access to records sealed on January 1, 2015, and later, in certain circumstances, including:

(3) an expunged record of a conviction may be opened for purposes of evaluating a prospective employee in a criminal justice agency without a court order;

(4) an expunged record of a conviction may be opened for purposes of a background study under section 245C.08 unless the commissioner had been properly served with notice of the petition for expungement and the court order for expungement is directed specifically to the commissioner of human services;

(5) an expunged record of a conviction may be opened for purposes of a background check required under section 122A.18, subdivision 8, unless the court order for expungement is directed specifically to the Professional Educator Licensing and Standards Board or the licensing division of the Department of Education. (Section 609A.03, subd. 7a(b)(3)-(5).) (Emphasis added.) 

Federal law provides:

Upon request by a covered agency, criminal justice agencies shall make available all criminal history record information regarding individuals under investigation by that covered agency, in accordance with Federal Investigative Standards /jointly promulgated by the Suitability Executive Agent and Security Executive Agent, for the purpose of—

(A) determining eligibility for—

…

(iii) acceptance or retention in the armed forces. (5 USC 9101(b)(1)(A)(iii).)

That section also defines “criminal history record information” as:

Information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations [sic], or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release. The term does not include identification information such as fingerprint records to the extent that such information does not indicate involvement of the individual in the criminal justice system. The term includes those records of a State or locality sealed pursuant to law if such records are accessible by State and local criminal justice agencies for the purpose of conducting background checks. (5 USC 9101 (a)(2).) (Emphasis added.)

The subject of the records raised the possibility that Minnesota Statutes, section 152.18 (certain first time drug offenders; certain marijuana offenses) applies to the records at issue and therefore, section 609A.03, subdivision 6, controls the outcome here. However, section 152.18 only applies to possession crimes under section 152.025, subdivision 2, and the records expunged in the two court orders at issue here involve a sales crime, under subdivision 1 of that section. Thus, sections 152.18 and 609A.03, subd. 6, do not apply to the records here. 

The district court’s expungement order for Le Sueur County states that the order is sealing/expunging records under section 609A.02, subd. 3, for “5th Degree drugs-sale-marijuana in violation of Minnesota Statutes Section 152.025, Subd. 1(a).” (The records are subject to a Scott County expungement order, as well, which is materially the same.) The Le Sueur County order further states:

Petitioner’s request for sealing/expunging of records is granted. All official records, including all records relating to the arrest, indictment or complaint, trial and dismissal, shall be sealed by the agencies indicated in paragraph 4 [sic] below and the existence not disclosed without a court order, except as authorized by law.

Paragraph 3 of the order lists New Prague City Attorney and New Prague City Police Department.

The subject of the records provided the following additional facts, “Taking into account the facts of the case, and [the data subject’s] good record, [the data subject] was given a stay of adjudication. [The data subject] satisfied all terms of the stay and the criminal case against him was dismissed.” (Emphasis added.)

Under the federal provision, the Navy is allowed to access sealed records in Minnesota to determine eligibility to serve in the armed forces when those sealed records are accessible to local law enforcement agencies to conduct background checks. Minnesota law allows criminal justice agencies to access “criminal conviction records” to conduct certain background studies. Here, the Court stayed adjudication and once the subject of the records fulfilled the conditions of the stay, the case was dismissed. Thus, he was never “convicted” and his records are not accessible in Minnesota for background checks by criminal justice agencies. Therefore, the City cannot disclose the sealed records pursuant to 5 USC section 9101.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

5 U.S.C. section 9101 does not require the City of New Prague to disclose law enforcement records sealed under Minnesota Statutes, Chapter 609A to a military recruiter, because Minnesota Statutes, section 609A.03, subd. 7a, does not allow criminal justice agencies to access sealed records to conduct background checks unless the individual is convicted of a crime. 

Signed:

Matthew Massman 
Commissioner

Dated: June 15, 2018