5 U.S.C. § 9101 — Access to criminal history records for na-

Page 1289 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9101 (Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 769; amended Pub. L. 111–350, § 5(a)(19), Jan. 4, 2011, 124 Stat. 3842.) Editorial Notes AMENDMENTS 2011—Pub. L. 111–350 substituted ‘‘section 1502(a) and (b) of title 41’’ for ‘‘section 26(f) of the Office of Federal Procurement Policy Act (41 U.S.C. 422(f))’’. Subpart H—Access to Criminal History Record Information CHAPTER 91—ACCESS TO CRIMINAL HIS- TORY RECORDS FOR NATIONAL SECURITY AND OTHER PURPOSES Sec. 9101. Access to criminal history records for na- tional security and other purposes. Editorial Notes AMENDMENTS 2000—Pub. L. 106–398, § 1 [[div. A], title X, § 1076(f)(1)(A), (2)(B)], Oct. 30, 2000, 114 Stat. 1654, 1654A–282, substituted ‘‘AND OTHER PURPOSES’’ for ‘‘PURPOSES’’ in chapter heading and ‘‘Access to crimi- nal history records for national security and other pur- poses’’ for ‘‘Criminal history record information for na- tional security purposes’’ in item 9101. § 9101. Access to criminal history records for na- tional security and other purposes (a) As used in this section: (1) The term ‘‘criminal justice agency’’ means (A) any Federal, State, or local court, and (B) any Federal, State, or local agency, or any subunit thereof, which performs the ad- ministration of criminal justice pursuant to a statute or Executive order, and which allo- cates a substantial part of its annual budget to the administration of criminal justice. (2) The term ‘‘criminal history record infor- mation’’ means information collected by criminal justice agencies on individuals con- sisting of identifiable descriptions and nota- tions of arrests, indictments, informations, or other formal criminal charges, and any dis- position arising therefrom, sentencing, correc- tion supervision, and release. The term does not include identification information such as fingerprint records to the extent that such in- formation 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 jus- tice agencies for the purpose of conducting background checks. (3) The term ‘‘classified information’’ means information or material designated pursuant to the provisions of a statute or Executive order as requiring protection against unau- thorized disclosure for reasons of national se- curity. (4) The term ‘‘State’’ means any of the sev- eral States, the District of Columbia, the Commonwealth of Puerto Rico, the Common- wealth of the Northern Mariana Islands, Guam, the Virgin Islands, American Samoa, 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 ju- risdiction over matters at a county, munic- ipal, or other local government level. (6) The term ‘‘covered agency’’ means any of the following: (A) The Department of Defense. (B) The Department of State. (C) The Department of Transportation. (D) The Office of Personnel Management. (E) The Central Intelligence Agency. (F) The Federal Bureau of Investigation. (G) The Department of Homeland Secu- rity. (H) The Office of the Director of National Intelligence. (I) An Executive agency that— (i) is authorized to conduct background investigations under a Federal statute; or (ii) is delegated authority to conduct background investigations in accordance with procedures established by the Secu- rity Executive Agent or the Suitability Executive Agent under subsection (b) or (c)(iv) of section 2.3 of Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto. (J) A contractor that conducts a back- ground investigation on behalf of an agency described in subparagraphs (A) through (I). (7) The terms ‘‘Security Executive Agent’’ and ‘‘Suitability Executive Agent’’ mean the Security Executive Agent and the Suitability Executive Agent, respectively, established under Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto. (b)(1) Upon request by a covered agency, crimi- nal justice agencies shall make available all criminal history record information regarding individuals under investigation by that covered agency, in accordance with Federal Investiga- tive Standards jointly promulgated by the Suit- ability Executive Agent and Security Executive Agent, for the purpose of— (A) determining eligibility for— (i) access to classified information; (ii) assignment to or retention in sensitive national security duties or positions; (iii) acceptance or retention in the armed forces; or (iv) appointment, retention, or assignment to a position of public trust while either em- ployed by the Government or performing a Government contract; or (B) conducting a basic suitability or fitness assessment for Federal or contractor employ- ees, using Federal Investigative Standards jointly promulgated by the Security Executive Agent and the Suitability Executive Agent in accordance with— (i) Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto; and (ii) the Office of Management and Budget Memorandum ‘‘Assignment of Functions Re- lating to Coverage of Contractor Employee Fitness in the Federal Investigative Stand- ards’’, dated December 6, 2012; Page 1290 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9101 (C) credentialing under the Homeland Secu- rity Presidential Directive 12 (dated August 27, 2004); and (D) Federal Aviation Administration checks required under— (i) the Federal Aviation Administration Drug Enforcement Assistance Act of 1988 (subtitle E of title VII of Public Law 100–690; 102 Stat. 4424) and the amendments made by that Act; or (ii) section 44710 of title 49. (2)(A) A State central criminal history record depository shall allow a covered agency to con- duct both biometric and biographic searches of criminal history record information. (B) Nothing in subparagraph (A) shall be con- strued to prohibit the Federal Bureau of Inves- tigation from requiring a request for criminal history record information to be accompanied by the fingerprints of the individual who is the subject of the request. (3) Fees, if any, charged for providing criminal history record information pursuant to this sub- section shall not exceed the reasonable cost of providing such information. (4) This subsection shall apply notwith- standing any other provision of law or regula- tion of any State or of any locality within a State, or any other law of the United States. (c) A covered agency shall not obtain criminal history record information pursuant to this sec- tion unless it has received written consent from the individual under investigation for the re- lease of such information for the purposes set forth in paragraph (b)(1). (d) Criminal history record information re- ceived 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 informa- tion shall be made available to the individual who is the subject of such information upon re- quest. (e)(1) Automated information delivery systems shall be used to provide criminal history record information to a covered agency under sub- section (b) whenever available. (2) Fees, if any, charged for automated access through such systems may not exceed the rea- sonable cost of providing such access. (3) The criminal justice agency providing the criminal history record information through such systems may not limit disclosure on the basis that the repository is accessed from out- side the State. (4) Information provided through such systems shall be the full and complete criminal history record. (5) Criminal justice agencies shall accept and respond to requests for criminal history record information through such systems with printed or photocopied records when requested. (6) If a criminal justice agency is able to pro- vide the same information through more than 1 system described in paragraph (1), a covered agency may request information under sub- section (b) from the criminal justice agency, and require the criminal justice agency to provide the information, using the system that is most cost-effective for the Federal Government. (f) 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. (g) Upon request by a covered agency and in accordance with the applicable provisions of this section, the Deputy Assistant Secretary of State for Overseas Citizens Services shall make avail- able criminal history record information col- lected by the Deputy Assistant Secretary with respect to an individual who is under investiga- tion by the covered agency regarding any inter- action of the individual with a law enforcement agency or intelligence agency of a foreign coun- try. (h) If a contractor described in subsection (a)(6)(J) uses an automated information delivery system to request criminal history record infor- mation, the contractor shall comply with any necessary security requirements for access to that system. (i) The Suitability and Security Clearance Performance Accountability Council established under Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto, shall submit to the Committee on Armed Services, the Committee on Homeland Security and Governmental Af- fairs, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate, and the Committee on Armed Services, the Com- mittee on Oversight and Government Reform, the Committee on Appropriations, and the Per- manent Select Committee on Intelligence of the House of Representatives, an annual report that— (1) describes efforts of the Council to inte- grate Federal, State, and local systems for sharing criminal history record information; (2) analyzes the extent and effectiveness of Federal education programs regarding crimi- nal history record information; (3) provides an update on the implementa- tion of best practices for sharing criminal his- tory record information, including ongoing limitations experienced by investigators work- ing for or on behalf of a covered agency with respect to access to State and local criminal history record information; and (4) provides a description of limitations on the sharing of information relevant to a back- ground investigation, other than criminal his- tory record information, between— (A) investigators working for or on behalf of a covered agency; and (B) State and local law enforcement agen- cies. (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; Pub. L. 106–398, § 1 [[div. A], title X, § 1076(a)–(e), (f)(2)(A)], Oct. 30, 2000, 114 Stat. 1654, 1654A–280 to 1654A–282; Pub. L. 114–92, div. A, title X, § 1086(f)(1)–(6)(A), (7), (8), (10), Nov. 25, 2015, 129 Stat. 1008–1011.) Page 1291 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9101 Editorial Notes REFERENCES IN TEXT Executive Order 13467, referred to in subsecs. (a)(6)(I)(ii), (7), (b)(1)(B)(i), and (i), is Ex. Ord. No. 13467, June 30, 2008, 73 F.R. 38103, which is set out as a note under section 3161 of Title 50, War and National De- fense. Federal Aviation Administration Drug Enforcement Assistance Act of 1988, referred to in subsec. (b)(1)(D)(i), is subtitle E (§§ 7201 to 7214) of Pub. L. 100–690, title VII, Nov. 18, 1988, 102 Stat. 4424. For complete classification of this Act to the Code, see Tables. AMENDMENTS 2015—Subsec. (a)(2). Pub. L. 114–92, § 1086(f)(6)(A), sub- stituted ‘‘The term includes those records of a State or locality sealed pursuant to law if such records are ac- cessible by State and local criminal justice agencies for the purpose of conducting background checks.’’ for ‘‘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 lo- cality.’’ Subsec. (a)(6)(G) to (J). Pub. L. 114–92, § 1086(f)(2), added subpars. (G) to (J). Subsec. (a)(7). Pub. L. 114–92, § 1086(f)(1), added par. (7). Subsec. (b)(1). Pub. L. 114–92, § 1086(f)(3)(B), in intro- ductory provisions, struck out ‘‘the head of’’ before ‘‘a covered agency’’, inserted ‘‘all’’ before ‘‘criminal his- tory record information’’, and substituted ‘‘, in accord- ance with Federal Investigative Standards jointly pro- mulgated by the Suitability Executive Agent and Secu- rity Executive Agent, for the purpose of—’’ for ‘‘for the purpose of determining eligibility for any of the fol- lowing:’’. Subsec. (b)(1)(A). Pub. L. 114–92, § 1086(f)(3)(A), (B)(iii), (C)–(F), inserted ‘‘(A) determining eligibility for—’’; re- designated former subpars. (A) to (D) as cls. (i) to (iv), respectively, of subpar. (A) and realigned margins; in cl. (i), substituted ‘‘access’’ for ‘‘Access’’ and semicolon for period at end; in cl. (ii), substituted ‘‘assignment’’ for ‘‘Assignment’’ and ‘‘or positions;’’ for period at end; in cl. (iii), substituted ‘‘acceptance’’ for ‘‘Acceptance’’ and ‘‘; or’’ for period at end; and in cl. (iv), substituted ‘‘appointment’’ for ‘‘Appointment’’ and ‘‘; or’’ for pe- riod at end and struck out ‘‘or a critical or sensitive position’’ after ‘‘public trust’’. Subsec. (b)(1)(B) to (D). Pub. L. 114–92, § 1086(f)(3)(G), added subpars. (B) to (D). Former subpars. (B) to (D) re- designated cls. (ii) to (iv), respectively, of subpar. (A). Subsec. (b)(2). Pub. L. 114–92, § 1086(f)(4), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘Such a request to a State central criminal his- tory record repository shall be accompanied by the fin- gerprints of the individual who is the subject of the re- quest if required by State law and if the repository uses the fingerprints in an automated fingerprint identifica- tion system.’’ Subsec. (e)(6). Pub. L. 114–92, § 1086(f)(5), added par. (6). Subsec. (g). Pub. L. 114–92, § 1086(f)(7), added subsec. (g). Subsec. (h). Pub. L. 114–92, § 1086(f)(8), added subsec. (h). Subsec. (i). Pub. L. 114–92, § 1086(f)(10), added subsec. (i). 2000—Pub. L. 106–398, § 1 [[div. A], title X, § 1076(f)(2)(A)], substituted ‘‘Access to criminal history records for national security and other purposes’’ for ‘‘Criminal history record information for national se- curity purposes’’ in section catchline. Subsec. (a)(1). Pub. L. 106–398, § 1 [[div. A], title X, § 1076(e)(1)], substituted ‘‘means (A) any Federal, State, or local court, and (B) any Federal, State, or local agency, or any subunit thereof, which’’ for ‘‘includes Federal, State, and local agencies and means: (A) courts, or (B) a Government agency or any subunit thereof which’’. Subsec. (a)(4). Pub. L. 106–398, § 1 [[div. A], title X, § 1076(e)(2)], inserted ‘‘the Commonwealth of’’ before ‘‘the Northern Mariana Islands’’ and struck out ‘‘the Trust Territory of the Pacific Islands,’’ after ‘‘Amer- ican Samoa,’’. Subsec. (a)(6). Pub. L. 106–398, § 1 [[div. A], title X, § 1076(a)(1)], added par. (6). Subsec. (b). Pub. L. 106–398, § 1 [[div. A], title X, § 1076(c)], in first sentence of par. (1), inserted ‘‘any of the following:’’ after ‘‘eligibility for’’ and substituted subpars. (A) to (D) for ‘‘(A) access to classified informa- tion or (B) assignment to or retention in sensitive na- tional security duties.’’, designated second sentence of par. (1) as par. (2), designated third sentence of par. (1) as par. (3) and substituted a period for ‘‘, nor shall they in any event exceed those charged to State or local agencies other than criminal justice agencies for such information.’’, and redesignated former par. (2) as (4). Subsec. (b)(1). Pub. L. 106–398, § 1 [[div. A], title X, § 1076(a)(2)], substituted ‘‘by the head of a covered agen- cy’’ for ‘‘by the Department of Defense, the Depart- ment of State, the Office of Personnel Management, the Central Intelligence Agency, or the Federal Bureau of Investigation’’ and ‘‘that covered agency’’ for ‘‘such department, office, agency, or bureau’’. Subsec. (b)(3). Pub. L. 106–398, § 1 [[div. A], title X, § 1076(b)], struck out par. (3) which related to agree- ments between Federal departments and agencies and States and localities to indemnify and hold harmless the States and localities from claims arising from the disclosure or use of criminal history record informa- tion. Subsec. (c). Pub. L. 106–398, § 1 [[div. A], title X, § 1076(a)(3)], substituted ‘‘A covered agency’’ for ‘‘The Department of Defense, the Department of State, the Office of Personnel Management, the Central Intel- ligence Agency, or the Federal Bureau of Investiga- tion’’. Subsecs. (e), (f). Pub. L. 106–398, § 1 [[div. A], title X, § 1076(d)], added subsec. (e) and redesignated former sub- sec. (e) as (f). 1990—Subsecs. (b)(1), (3)(A), (B), (c). Pub. L. 101–246, § 114(1), inserted ‘‘the Department of State,’’ after ‘‘De- fense,’’ 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. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Con- gress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representa- tives by House Resolution No. 5, One Hundred Eight- eenth Congress, Jan. 9, 2023. EFFECTIVE DATE OF 1986 AMENDMENT Pub. L. 99–569, title IV, § 402(c), Oct. 27, 1986, 100 Stat. 3196, 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 speci- fied in paragraph (b)(1) of section 9101 of title 5, United States Code.’’ EFFECTIVE DATE Pub. L. 99–169, title VIII, § 802, Dec. 4, 1985, 99 Stat. 1010, 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] con- Page 1292 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9201 ducted by the Department of Defense, the Office of Per- sonnel Management, or the Central Intelligence Agen- cy, for the purposes specified in paragraph (b)(1) of sec- tion 9101 of title 5, United States Code, as added by this Act.’’ TERMINATION DATE OF SUBSECTION (b)(3) OF THIS SECTION Pub. L. 100–453, title I, § 101(d), Sept. 29, 1988, 102 Stat. 1904, extended the expiration date provided in section 803(b) of Pub. L. 99–169, formerly set out below, until Dec. 31, 1989. Pub. L. 99–169, title VIII, § 803(b), Dec. 4, 1985, 99 Stat. 1011, provided that subsec. (b)(3) of this section expired three years after Dec. 4, 1985. REPORT TO CONGRESSIONAL COMMITTEES ON EFFECT OF PROVISIONS FOR INDEMNIFICATION AGREEMENTS Pub. L. 99–169, title VIII, § 803(a), Dec. 4, 1985, 99 Stat. 1010, 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 consulta- tion with Department of Defense, Office of Personnel Management, Central Intelligence Agency, and Federal Bureau of Investigation, to report to appropriate com- mittees 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. CHAPTER 92—PROHIBITION ON CRIMINAL HISTORY INQUIRIES PRIOR TO CONDI- TIONAL OFFER Sec. 9201. Definitions. 9202. Limitations on requests for criminal history record information. 9203. Agency policies; complaint procedures. 9204. Adverse action. 9205. Procedures. 9206. Rules of construction. § 9201. Definitions In this chapter— (1) the term ‘‘agency’’ means ‘‘Executive agency’’ as such term is defined in section 105 and includes— (A) the United States Postal Service and the Postal Regulatory Commission; and (B) the Executive Office of the President; (2) the term ‘‘appointing authority’’ means an employee in the executive branch of the Government of the United States that has au- thority to make appointments to positions in the civil service; (3) the term ‘‘conditional offer’’ means an offer of employment in a position in the civil service that is conditioned upon the results of a criminal history inquiry; (4) the term ‘‘criminal history record infor- mation’’— (A) except as provided in subparagraphs (B) and (C), has the meaning given the term in section 9101(a); (B) includes any information described in the first sentence of section 9101(a)(2) that has been sealed or expunged pursuant to law; and (C) includes information collected by a criminal justice agency, relating to an act or alleged act of juvenile delinquency, that is analogous to criminal history record in- formation (including such information that has been sealed or expunged pursuant to law); and (5) the term ‘‘suspension’’ has the meaning given the term in section 7501. (Added Pub. L. 116–92, div. A, title XI, § 1122(a), Dec. 20, 2019, 133 Stat. 1605.) Statutory Notes and Related Subsidiaries REGULATIONS Pub. L. 116–92, div. A, title XI, § 1122(b)(1), Dec. 20, 2019, 133 Stat. 1607, provided that: ‘‘Not later than 1 year after the date of enactment of this subtitle [sub- title A of title XI of div. A of Pub. L. 116–92, approved Dec. 20, 2019], the Director of the Office of Personnel Management shall issue such regulations as are nec- essary to carry out chapter 92 of title 5, United States Code (as added by this subtitle).’’ § 9202. Limitations on requests for criminal his- tory record information (a) INQUIRIES PRIOR TO CONDITIONAL OFFER.— Except as provided in subsections (b) and (c), an employee of an agency may not request, in oral or written form (including through the Declara- tion for Federal Employment (Office of Per- sonnel Management Optional Form 306) or any similar successor form, the USAJOBS internet website, or any other electronic means) that an applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer to the applicant. (b) OTHERWISE REQUIRED BY LAW.—The prohi- bition under subsection (a) shall not apply with respect to an applicant for a position in the civil service if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise re- quired by law. (c) EXCEPTION FOR CERTAIN POSITIONS.— (1) IN GENERAL.—The prohibition under sub- section (a) shall not apply with respect to an applicant for an appointment to a position— (A) that requires a determination of eligi- bility described in clause (i), (ii), or (iii) of section 9101(b)(1)(A); (B) as a Federal law enforcement officer (as defined in section 115(c) of title 18); or (C) identified by the Director of the Office of Personnel Management in the regulations issued under paragraph (2). (2) REGULATIONS.— (A) ISSUANCE.—The Director of the Office of Personnel Management shall issue regulations identifying additional positions with respect to which the prohibition under subsection (a) shall not apply, giving due consideration to positions that involve interaction with mi- nors, access to sensitive information, or man- aging financial transactions. (B) COMPLIANCE WITH CIVIL RIGHTS LAWS.— The regulations issued under subparagraph (A) shall— (i) be consistent with, and in no way super- sede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Fed- eral civil rights laws; and