Do Kentucky criminal justice agencies have to give criminal history records to federal agencies doing security background checks?
Plain-English summary
The Defense Counterintelligence and Security Agency, the federal body that runs background investigations for security clearances and sensitive federal jobs, asked the Kentucky Attorney General to confirm that Kentucky criminal justice agencies are required to hand over criminal history records when a federal agency requests them under 5 U.S.C. § 9101.
The opinion says yes. Congress passed § 9101 because some states and localities had refused to share criminal history information voluntarily, which hampered federal security investigations. The statute now says that "upon request by a covered agency, criminal justice agencies shall make available all criminal history information regarding individuals under investigation," and it expressly preempts contrary state or local law. "Covered agencies" include the Department of Defense (which houses the requesting agency), the State Department, Transportation, OPM, CIA, FBI, Homeland Security, and the Office of the Director of National Intelligence, plus other executive agencies authorized to do background investigations. "Criminal justice agencies" are the state and local courts and agencies that administer criminal justice and spend a substantial part of their budget doing so.
There is one prerequisite: consent. The opinion stresses that a Kentucky criminal justice agency must release the records only after the person under investigation has given written consent. Once the requester is a covered agency and the individual has consented, the agency must provide the requested information as a matter of federal law.
What this means for you
Kentucky criminal justice agencies and records custodians
Under this opinion, when a covered federal agency requests criminal history records under 5 U.S.C. § 9101 and the subject has given written consent, you are required to provide the records, and the federal statute overrides any contrary state or local law. The consent requirement is the gating condition.
Court clerks and law enforcement
The opinion treats state and local courts and agencies that administer criminal justice as "criminal justice agencies" bound by the federal mandate once the two conditions (covered requester, subject consent) are met.
Federal security investigators
The opinion confirms that agencies like the Defense Counterintelligence and Security Agency, as part of the Department of Defense, are "covered agencies" entitled to request the records.
People undergoing a clearance or federal job investigation
The opinion makes clear your written consent is what unlocks the release; the records are not provided to the federal agency without it.
Common questions
Q: Can a Kentucky agency refuse to share criminal history with a federal investigator?
A: Not if the requirements of 5 U.S.C. § 9101 are met. The opinion reads the statute as mandatory ("shall make available") once a covered agency requests the records and the subject has consented, and it preempts contrary state or local law.
Q: Which federal agencies count as "covered"?
A: The opinion lists the Department of Defense, State, Transportation, OPM, CIA, FBI, Homeland Security, the Office of the Director of National Intelligence, and other executive agencies authorized by federal statute to conduct background investigations.
Q: Is consent really required?
A: Yes. The opinion identifies written consent from the individual under investigation as a prerequisite; the agency must release the records only after that consent is given.
Q: Does state law that limits disclosure still apply?
A: No, as to these requests. The opinion notes 5 U.S.C. § 9101(b)(4) makes the federal requirement apply notwithstanding any state or local law.
Background and statutory framework
5 U.S.C. § 9101 requires criminal justice agencies to make available all criminal history information regarding individuals under investigation upon a covered agency's request (§ 9101(b)(1)), defines "covered federal agencies" (§ 9101(a)(6)) and "criminal justice agency" (§ 9101(a)(1)), preempts contrary state or local law (§ 9101(b)(4)), and conditions release on the subject's consent (§ 9101(c)). The opinion applies these provisions to the Defense Counterintelligence and Security Agency as a Department of Defense component, concluding Kentucky agencies must comply when the requester is covered and the subject has consented.
Citations and references
Statutes:
- 5 U.S.C. § 9101; § 9101(b)(1) (mandatory disclosure to covered agencies)
- 5 U.S.C. § 9101(a)(6), (a)(1) (covered agency and criminal justice agency definitions)
- 5 U.S.C. § 9101(b)(4) (preemption); § 9101(c) (consent)
Source
- Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
- Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%2023-01.pdf
Original opinion text
The full opinion as issued by the Office of the Kentucky Attorney General:
Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
January 3, 2023
OAG 23-01
Subject: Whether federal agencies have authority to require Kentucky agencies to disclose criminal history information for background checks and national security review procedures.
Requested by: David J. Hicks, Chief Law Enforcement Liaison, Defense Counterintelligence and Security Agency
Written by: Rachel Wright, Assistant Attorney General
Syllabus: Subject to consent by the individual being investigated and a request by a covered federal agency, Kentucky criminal justice agencies shall provide criminal history information for purposes of background checks and national security review procedures.
Opinion of the Attorney General
The Defense Counterintelligence and Security Agency has asked the Office of the Attorney General to clarify whether criminal justice agencies in Kentucky are authorized and required to release criminal history record information to covered federal agencies under 5 U.S.C. § 9101. For the reasons that follow, it is the opinion of this Office that criminal justice agencies in Kentucky are required to provide criminal history background information upon request to a covered federal agency insofar as the individual under investigation has consented.
The Defense Counterintelligence and Security Agency is a federal security agency housed within the Department of Defense. One of the agency's primary functions is personnel vetting, which includes conducting background investigations and continuous screening for the federal and contractor workforce. The agency performs background investigations for several reasons, including to determine an individual's eligibility for government employment and whether an individual may serve in a national security sensitive position, have access classified information, and perform work under certain government contracts.
Congress passed 5 U.S.C. § 9101 to ensure that all states participated in this important information-sharing duty. Prior to its passage, while many states and localities provided requested information voluntarily, a significant number did not, hindering the ability of covered federal agencies to conduct effective investigations. To eliminate this ambiguity, 5 U.S.C. § 9101(b)(1) mandates that criminal history record information be provided to covered federal agencies upon request.
In relevant part, this statute requires that "[u]pon request by a covered agency, criminal justice agencies shall make available all criminal history information regarding individuals under investigation by that covered agency." Such requests are allowed for purposes enumerated in the statute, including but not limited to, determining eligibility, conducting suitability or fitness assessments for Federal or contractor employees, and Federal Aviation Administration checks."
Thus, pursuant to this statute, covered federal agencies are entitled to receive criminal history record information from state and local criminal justice agencies once the federal agency requests it. The requesting covered federal agencies include, among others, the Department of Defense. Since the Defense Counterintelligence and Security Agency is an agency within the Department of Defense, it is a covered agency that may make such a request. [Footnote: Under 5 U.S.C. § 9101(a)(6), the term "covered federal agencies" includes any of the following: the Department of Defense, the Department of State, the Department of Transportation, the Office of Personnel Management, the Central Intelligence Agency, the Federal Bureau of Investigation, the Department of Homeland Security, and Office of the Director of National Intelligence, and "[a]n executive agency that [] is authorized to conduct background investigations under a Federal statute."]
After the request is made, "criminal justice agencies" are required to comply. This includes state and local courts, agencies, and their subunits that "perform[] the administration of criminal justice . . . and allocate[] a substantial part of [their] annual budget to the administration of criminal justice." To demonstrate the importance of this requirement, 5 U.S.C. § 9101(b)(4) provides that it will preempt any state or local laws.
There is, however, one requirement that must be satisfied before a "criminal justice agency" must release the requested information: consent. A criminal history record information must be provided over to a requesting federal agency only after the individual under investigation provides written consent. Once an agency has the individual's consent, it must provide the criminal history record information requested.
Conclusion. For these reasons, it is the opinion of this Office that criminal justice agencies in Kentucky must comply with federal requests for criminal history record information so long as the following prerequisites are met: (1) the federal agency that makes the request is a "covered agency" under 5 U.S.C. § 9101(a)(6); and (2) the individual under investigation has consented to the investigation. When these conditions are satisfied, a Kentucky criminal justice agency must provide the requested information pursuant to federal law.
Daniel Cameron
ATTORNEY GENERAL
Rachel Wright
Assistant Attorney General