5 USC 9101 Criminal history record information for national security purposes

§ 8914

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

Subsec. (b)(3). Pub. L. 95–454, § 906(c)(2)(F), (H), substituted ‘‘3401’’ for ‘‘3391’’.
Pub. L. 95–437 added par. (3).
Subsec. (c). Pub. L. 95–454, § 906(a)(3), substituted ‘‘Office’’ for ‘‘Commission’’.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100–654 effective 120 days after
Nov. 14, 1988, see section 301(d) of Pub. L. 100–654, set
out as an Effective Date note under section 8906a of
this title.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98–615 effective May 7, 1985,
with enumerated exceptions, and applicable to any individual who is married to an employee or annuitant on
or after that date, see section 4(a)(2) of Pub. L. 98–615,
as amended, set out as a note under section 8341 of this
title.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95–454 effective 90 days after
Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as
a note under section 1101 of this title.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 8901 of this title.

§ 8914. Effect of other statutes
Any provision of law outside of this chapter
which provides coverage or any other benefit
under this chapter to any individuals who (based
on their being employed by an entity other than
the Government) would not otherwise be eligible
for any such coverage or benefit shall not apply
with respect to any individual appointed, transferred, or otherwise commencing that type of
employment on or after October 1, 1988.
(Added Pub. L. 100–238, title I, § 108(a)(3)(A), Jan.
8, 1988, 101 Stat. 1747.)
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 22 section 6103; title
25 section 450i.

Subpart H—Access to Criminal
History Record Information
CHAPTER 91—ACCESS TO CRIMINAL HISTORY RECORDS FOR NATIONAL SECURITY
PURPOSES
Sec.

9101.

Criminal history record information for national security purposes.

§ 9101. Criminal history record information for
national security purposes
(a) As used in this section:
(1) The term ‘‘criminal justice agency’’ includes Federal, State, and local agencies and
means: (A) courts, or (B) a Government agency
or any subunit thereof which performs the administration of criminal justice pursuant to a
statute or Executive order, and which allocates a substantial part of its annual budget
to the administration of criminal justice.
(2) The term ‘‘criminal history record information’’ means information collected by
criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or
other formal criminal charges, and any dis-

position 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 does not include those records of a
State or locality sealed pursuant to law from
access by State and local criminal justice
agencies of that State or locality.
(3) The term ‘‘classified information’’ means
information or material designated pursuant
to the provisions of a statute or Executive
order as requiring protection against unauthorized disclosure for reasons of national security.
(4) The term ‘‘State’’ means any of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, the Northern
Mariana Islands, Guam, the Virgin Islands,
American Samoa, the Trust Territory of the
Pacific Islands, and any other territory or possession of the United States.
(5) The term ‘‘local’’ and ‘‘locality’’ means
any local government authority or agency or
component thereof within a State having jurisdiction over matters at a county, municipal, or other local government level.
(b)(1) Upon request by the Department of Defense, the Department of State, the Office of
Personnel Management, the Central Intelligence
Agency, or the Federal Bureau of Investigation,
criminal justice agencies shall make available
criminal history record information regarding
individuals under investigation by such department, office, agency, or bureau for the purpose
of determining eligibility for (A) access to classified information or (B) assignment to or retention in sensitive national security duties. Such
a request to a State central criminal history
record repository shall be accompanied by the
fingerprints of the individual who is the subject
of the request if required by State law and if the
repository uses the fingerprints in an automated
fingerprint identification system. Fees, if any,
charged for providing criminal history record information pursuant to this subsection shall not
exceed the reasonable cost of providing such information, nor shall they in any event exceed
those charged to State or local agencies other
than criminal justice agencies for such information.
(2) This subsection shall apply notwithstanding any other provision of law or regulation of
any State or of any locality within a State, or
any other law of the United States.
(3)(A) Upon request by a State or locality, the
Department of Defense, the Department of
State, the Office of Personnel Management, the
Central Intelligence Agency, or the Federal Bureau of Investigation shall enter into an agreement with such State or locality to indemnify
and hold harmless such State or locality, and its
officers, employees and agents, from any claim
against such State or locality, or its officer, employee or agent, for damages, costs and other
monetary loss, whether or not suit is instituted,
arising from the disclosure or use by such department, office, agency, or bureau of criminal
history record information obtained from the
State or locality pursuant to this subsection, if

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
the laws of such State or locality, as of the date
of enactment of this section, otherwise have the
effect of prohibiting the disclosure of such
criminal history record information to such department, office, agency, or bureau.
(B) When the Department of Defense, the Department of State, the Office of Personnel Management, the Central Intelligence Agency, or
the Federal Bureau of Investigation and a State
or locality have entered into an agreement described in subparagraph (A), and a claim described in such subparagraph is made against
such State or locality, or its officer, employee,
or agent, the State or locality shall expeditiously transmit notice of such claim to the Attorney General and to the United States Attorney of the district embracing the place wherein
the claim is made, and the United States shall
have the opportunity to make all determinations regarding the settlement or defense of
such claim.
(c) The Department of Defense, the Department of State, the Office of Personnel Management, the Central Intelligence Agency, or the
Federal Bureau of Investigation shall not obtain
criminal history record information pursuant to
this section unless it has received written consent from the individual under investigation for
the release of such information for the purposes
set forth in paragraph (b)(1).
(d) Criminal history record information received under this section shall be disclosed or
used only for the purposes set forth in paragraph
(b)(1) or for national security or criminal justice
purposes authorized by law, and such information shall be made available to the individual
who is the subject of such information upon request.
(e) The authority provided under this section
with respect to the Department of State may be
exercised only so long as the Department of
State continues to extend to its employees and
applicants for employment, at a minimum,
those procedural safeguards provided for as part
of the security clearance process that were made
available, as of May 1, 1987, pursuant to section
163.4 of volume 3 of the Foreign Affairs Manual.
(Added Pub. L. 99–169, title VIII, § 801(a), Dec. 4,
1985, 99 Stat. 1009; amended Pub. L. 99–569, title
IV, § 402(a), Oct. 27, 1986, 100 Stat. 3196; Pub. L.
101–246, title I, § 114, Feb. 16, 1990, 104 Stat. 22.)
TERMINATION OF SUBSECTION (b)(3)
For termination of subsection (b)(3) of this
section by section 803(b) of Pub. L. 99–169, see
Termination Date of Subsection (b)(3) of This
Section note below.

§ 9101

AMENDMENTS
1990—Subsecs. (b)(1), (3)(A), (B), (c). Pub. L. 101–246,
§ 114(1), inserted ‘‘the Department of State,’’ after ‘‘Defense,’’ wherever appearing.
Subsec. (e). Pub. L. 101–246, § 114(2), added subsec. (e).
1986—Subsecs. (b)(1), (3), (c). Pub. L. 99–569 inserted
references to the Federal Bureau of Investigation and
such bureau.
EFFECTIVE DATE OF 1986 AMENDMENT
Section 402(c) of Pub. L. 99–569 provided that: ‘‘The
amendments made by this section [amending this section and provisions set out as a note under this section]
shall become effective with respect to any inquiry
which begins after the date of enactment of this Act
[Oct. 27, 1986] conducted by the Federal Bureau of Investigation for purposes specified in paragraph (b)(1) of
section 9101 of title 5, United States Code.’’
EFFECTIVE DATE
Section 802 of Pub. L. 99–169 provided that: ‘‘The
amendments made by section 801(a) of this Act [enacting this section] shall become effective with respect to
any inquiry which begins after the date of enactment of
this Act [Dec. 4, 1985] conducted by the Department of
Defense, the Office of Personnel Management, or the
Central Intelligence Agency, for the purposes specified
in paragraph (b)(1) of section 9101 of title 5, United
States Code, as added by this Act.’’
TERMINATION OF TRUST TERRITORY OF THE PACIFIC
ISLANDS
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title
48, Territories and Insular Possessions.
TERMINATION DATE OF SUBSECTION (b)(3) OF THIS
SECTION
Pub. L. 100–453, title I, § 101(d), Sept. 29, 1988, 102 Stat.
1904, provided that: ‘‘The expiration date provided for
in section 803(b) of the Intelligence Authorization Act
for Fiscal Year 1986 (Public Law 99–169) [set out below]
shall be extended until December 31, 1989.’’
Section 803(b) of Pub. L. 99–169 provided that: ‘‘Three
years after the date of enactment of this Act [Dec. 4,
1985], section 9101(b)(3) of title 5, United States Code,
shall expire.’’
REPORT TO CONGRESSIONAL COMMITTEES ON EFFECT OF
PROVISIONS FOR INDEMNIFICATION AGREEMENTS
Section 803(a) of Pub. L. 99–169, as amended by Pub.
L. 99–569, title IV, § 402(b), Oct. 27, 1986, 100 Stat. 3196,
directed Department of Justice, within two years after
Dec. 4, 1985, and after consultation with Department of
Defense, Office of Personnel Management, Central Intelligence Agency, and Federal Bureau of Investigation, to report to appropriate committees of Congress
concerning the effect of 5 U.S.C. 9101(b)(3), as added by
this Act, including the effect of the absence of indemnification agreements upon States and localities not eligible under 5 U.S.C. 9101(b)(3) for such agreements.