Q: The County Board of Supervisors announced it will conduct a criminal and financial background check on the individual it selects to fill an open elected position for the clerk-recorder/registrar of voters.
The county manager and county counsel say the results of these checks will not be public documents pursuant to the penal code which bars release of this information to individuals ineligible to receive such information.
They also cite AB2410 by Fuentes, a law passed last year that says that individuals convicted of certain crimes that violate the public trust (embezzlement, bribes, the like) are ineligible to run for public office. The law previously barred those individuals from holding public office but this law expands it to include even candidates.
The county does not conduct such checks on other officeholders nor does it plan to start doing them for all candidates. It did, however, conduct such a check in 1989 when it last made an appointment to the clerk-recorder position.
Is the county’s interpretation correct? Can the county keep the results of a background check on a person holding elected office confidential?
A: The records to which the board of supervisors gained access as part of the criminal and financial background checks was likely the “summary criminal history information” that is compiled by a local criminal justice agency pursuant to Penal Code section 13300, or “criminal offender record information” compiled by state and local agencies and maintained by the state Attorney General. Penal Code section 11075.
The local summary criminal history information may be disclosed to a “city, county . . . or any officer or official thereof, when access is needed in order to assist the agency, officer, or official in fulfilling employment, certification, or licensing duties, and when access is specifically authorized by the city council, board of supervisors . . . when the local summary criminal history information is required to implement a statute, regulation or ordinance that expressly refers to specific criminal conduct applicable to the subject person . . . and contains requirements or exclusions, or both, expressly based upon the specified criminal conduct.” Penal Code section 13300(b)(11). Any information obtained from the local summary criminal history information is confidential unless the disclosure of the information is specifically permitted by another provision of law.
The criminal offender record information is likewise confidential and may be released only to such agencies that are authorized by statute to receive the information. Penal Code section 11076.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.