SENATE AMENDED
PRIOR PRINTER'S NOS. 1301, 1717, 2440, PRINTER'S NO. 4325
3060, 3835, 3888
No. 1141 Session of 1989
INTRODUCED BY CALTAGIRONE, BIRMELIN, MOEHLMANN, ADOLPH, ALLEN,
ANGSTADT, ARGALL, BARLEY, BATTISTO, BILLOW, BLACK, BOYES,
BRANDT, BROUJOS, BUNT, BURD, BUSH, CARLSON, CAPPABIANCA,
CESSAR, CHADWICK, CIVERA, CLYMER, COLAIZZO, COLE, DAVIES,
DOMBROWSKI, DeLUCA, DEMPSEY, DIETTERICK, DISTLER, DONATUCCI,
FARGO, FARMER, FEE, FLEAGLE, FLICK, FOSTER, FOX, FREIND,
GALLEN, GAMBLE, GEIST, GRUITZA, GRUPPO, HALUSKA, HASAY,
HAYES, HERSHEY, HESS, JACKSON, JADLOWIEC, JOHNSON, KASUNIC,
KONDRICH, KOSINSKI, LaGROTTA, LANGTRY, LEH, LLOYD, LUCYK,
MAIALE, MARKOSEK, MAYERNIK, McNALLY, MELIO, MERRY, MILLER,
MORRIS, MRKONIC, NAHILL, NAILOR, NOYE, O'BRIEN, OLASZ,
PERZEL, PETRONE, PHILLIPS, PISTELLA, PITTS, PRESSMANN,
RAYMOND, RITTER, ROBBINS, ROBINSON, RUDY, RYAN, RYBAK,
SALOOM, SAURMAN, SCHEETZ, SCHULER, SEMMEL, S. H. SMITH,
D. W. SNYDER, STEIGHNER, STRITTMATTER, E. Z. TAYLOR, TRELLO,
VAN HORNE, VEON, VROON, WASS, WESTON, WOGAN, WOZNIAK,
J. L. WRIGHT, DURHAM, MARSICO, WILSON, GLADECK, J. H. CLARK,
MOWERY, TELEK, SCRIMENTI AND BOWLEY, APRIL 11, 1989
AMENDMENTS TO SENATE AMENDMENTS, HOUSE OF REPRESENTATIVES,
NOVEMBER 14, 1990
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, further providing for obscene and
3 other sexual materials; providing for obscene performances;
4 prohibiting the disclosure of confidential tax information by
5 certain persons; and further providing for criminal history <--
6 record information.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Section 5903 of Title 18 of the Pennsylvania
10 Consolidated Statutes is amended to read:
1 § 5903. Obscene and other sexual materials and performances.
2 (a) Offenses defined.--No person, knowing the obscene
3 character of the materials or performances involved, shall:
4 (1) display or cause or permit the display of any
5 explicit sexual materials as defined in subsection (c) in or
6 on any window, showcase, newsstand, display rack, billboard,
7 display board, viewing screen, motion picture screen, marquee
8 or similar place in such manner that the display is visible
9 from any public street, highway, sidewalk, transportation
10 facility or other public thoroughfare, or in any business or
11 commercial establishment where minors, as a part of the
12 general public or otherwise, are or will probably be exposed
13 to view all or any part of such materials;
14 (2) sell, lend, distribute, exhibit, give away or show
15 any obscene materials to any person [17] 18 years of age or
16 older or offer to sell, lend, distribute, exhibit or give
17 away or show, or have in his possession with intent to sell,
18 lend, distribute, exhibit or give away or show any obscene
19 materials to any person [17] 18 years of age or older, or
20 knowingly advertise any obscene materials in any manner;
21 (3) design, copy, draw, photograph, print, utter,
22 publish or in any manner manufacture or prepare any obscene
23 materials;
24 (4) write, print, publish, utter or cause to be written,
25 printed, published or uttered any advertisement or notice of
26 any kind giving information, directly or indirectly, stating
27 or purporting to state where, how, from whom, or by what
28 means any obscene materials can be purchased, obtained or
29 had; [or]
30 (5) produce, present or direct any obscene performance
19890H1141B4325 - 2 -
1 or participate in a portion thereof that is obscene or that
2 contributes to its obscenity; or
3 [(5)] (6) hire, employ, use or permit any minor child to
4 do or assist in doing any act or thing mentioned in this
5 subsection.
6 (b) Definitions.--As used in this section the following
7 words and phrases shall have the meanings given to them in this
8 subsection:
9 "Community." For the purpose of applying the "contemporary
10 community standards" in this section, community means the State.
11 "Knowing." As used in subsection (a), knowing means having
12 general knowledge of, or reason to know or a belief or ground
13 for belief which warrants further inspection or inquiry of, the
14 character and content of any material or performance described
15 therein which is reasonably susceptible of examination by the
16 defendant.
17 "[Obscene materials] Material." Any literature, including
18 any book, magazine, pamphlet, newspaper, storypaper, bumper
19 sticker, comic book or writing[, and]; any figure, visual
20 representation, or image including any drawing, photograph,
21 picture, video tape or motion picture[; if:].
22 "Nude." Means showing the human male or female genitals,
23 pubic area, or buttocks with less than a fully opaque covering,
24 or showing the female breast with less than a fully opaque
25 covering of any portion thereof below the top of the nipple.
26 "Obscene." Any material or performance, if:
27 (1) the average person applying contemporary community
28 standards would find that the subject matter taken as a whole
29 appeals to the prurient interest;
30 (2) the subject matter depicts or describes in a
19890H1141B4325 - 3 -
1 patently offensive way, sexual conduct of a type described in
2 this section; and
3 (3) the subject matter, taken as a whole, lacks serious
4 literary, artistic, political, educational or scientific
5 value.
6 "Performance." Means any play, dance or other live
7 exhibition performed before an audience.
8 "Sadomasochistic abuse." Means, in a sexual context,
9 flagellation or torture by or upon a person who is nude or clad
10 in undergarments, a mask or in a bizarre costume, or the
11 condition of being fettered, bound or otherwise physically
12 restrained on the part of one who is nude or so clothed.
13 "Sexual conduct." Patently offensive representations or
14 descriptions of ultimate sexual acts, normal or perverted,
15 actual or simulated, including sexual intercourse, anal or oral
16 sodomy and sexual bestiality; and patently offensive
17 representations or descriptions of masturbation, excretory
18 functions, sadomasochistic abuse and lewd exhibition of the
19 genitals.
20 "Transportation facility." Any conveyance, premises or place
21 used for or in connection with public passenger transportation,
22 whether by air, rail, motor vehicle or any other method,
23 including aircraft, watercraft, railroad cars, buses, and air,
24 boat, railroad and bus terminals and stations.
25 (c) Dissemination to minors.--No person shall knowingly
26 disseminate by sale, loan or otherwise explicit sexual materials
27 to a minor. "Explicit sexual materials," as used in this
28 subsection, means materials which are obscene or:
29 (1) any picture, photograph, drawing, sculpture, motion
30 picture film, video tape or similar visual representation or
19890H1141B4325 - 4 -
1 image of a person or portion of the human body which depicts
2 nudity, sexual conduct, or sadomasochistic abuse and which is
3 harmful to minors; or
4 (2) any book, pamphlet, magazine, printed matter however
5 reproduced, or sound recording which contains any matter
6 enumerated in paragraph (1), or explicit and detailed verbal
7 descriptions or narrative accounts of sexual excitement,
8 sexual conduct, or sadomasochistic abuse and which, taken as
9 a whole, is harmful to minors.
10 (d) Admitting minor to show.--It shall be unlawful for any
11 person knowingly to exhibit for monetary consideration to a
12 minor or knowingly to sell to a minor an admission ticket or
13 pass or knowingly to admit a minor for a monetary consideration
14 to premises whereon there is exhibited, a motion picture show or
15 other presentation or performance which, in whole or in part,
16 depicts nudity, sexual conduct, or sadomasochistic abuse and
17 which is harmful to minors, except that the foregoing shall not
18 apply to any minor accompanied by his parent.
19 (e) Definitions.--As used in subsections (c) and (d) of this
20 section:
21 (1) "Minor" means any person under the age of [17] 18
22 years.
23 (2) "Nudity" means the showing of the human male or
24 female genitals, pubic area, or buttocks with less than a
25 fully opaque covering, or the showing of the female breast
26 with less than a fully opaque covering of any portion thereof
27 below the top of the nipple, or the depiction of covered male
28 genitals in a discernibly turgid state.
29 (3) "Sexual conduct" means acts of masturbation,
30 homosexuality, sexual intercourse, sexual bestiality, or
19890H1141B4325 - 5 -
1 physical contact with a person's clothed or unclothed
2 genitals, pubic area, buttocks or, if such person be a
3 female, breast.
4 (4) "Sexual excitement" means the condition of human
5 male or female genitals when in a state of sexual stimulation
6 or arousal.
7 (5) "Sadomasochistic abuse" means flagellation or
8 torture by or upon a person clad in undergarments, a mask or
9 bizarre costume, or the condition of being fettered, bound or
10 otherwise physically restrained on the part of one so
11 clothed.
12 (6) "Harmful to minors" means that quality of any
13 description or representation, in whatever form, of nudity,
14 sexual conduct, sexual excitement, or sadomasochistic abuse,
15 when it:
16 (i) predominantly appeals to the prurient, shameful,
17 or morbid interest of minors; and
18 (ii) is patently offensive to prevailing standards
19 in the adult community as a whole with respect to what is
20 suitable material for minors; and
21 (iii) [is utterly without redeeming social
22 importance for minors] taken as a whole, lacks serious
23 literary, artistic, political, educational or scientific
24 value for minors.
25 (7) "Knowingly" means having general knowledge of, or
26 reason to know, or a belief or ground for belief which
27 warrants further inspection or inquiry of both:
28 (i) the character and content of any material or
29 performance described herein which is reasonably
30 susceptible of examination by the defendant; and
19890H1141B4325 - 6 -
1 (ii) the age of the minor: Provided, however, That
2 an honest mistake shall constitute an excuse from
3 liability hereunder if the defendant made a reasonable
4 bona fide attempt to ascertain the true age of such
5 minor.
6 (f) Requiring sale as condition of business dealings.--No
7 person shall knowingly require any distributor or retail seller
8 as a condition to sale or delivery for resale or consignment of
9 any literature, book, magazine, pamphlet, newspaper, storypaper,
10 paper, comic book, writing, drawing, photograph, videotape,
11 figure or image, or any written or printed matter, or any
12 article or instrument to purchase or take by consignment for
13 purposes of sale, resale or distribution any obscene literature,
14 book, magazine, pamphlet, newspaper, storypaper, paper, comic
15 book, writing, drawing, photograph, videotape, figure or image,
16 or any written or printed matter of an obscene nature or any
17 article or instrument of an obscene nature.
18 (g) Injunction.--The attorney for the Commonwealth may
19 institute proceedings in equity in the court of common pleas of
20 the county in which any person violates or clearly is about to
21 violate this section for the purpose of enjoining such
22 violation. The court shall issue an injunction only after
23 written notice and hearing and only against the defendant to the
24 action. The court shall hold a hearing within three days after
25 demand by the attorney for the Commonwealth, one of which days
26 must be a business day for the court, and a final decree shall
27 be filed in the office of the prothonotary within 24 hours after
28 the close of the hearing. A written memorandum supporting the
29 decree shall be filed within five days of the filing of the
30 decree. The attorney for the Commonwealth shall prove the
19890H1141B4325 - 7 -
1 elements of the violation beyond a reasonable doubt. The
2 defendant shall have the right to trial by jury at the said
3 hearing.
4 (h) Criminal prosecution.--
5 (1) Any person who violates subsection (a) or (f) is
6 guilty of a misdemeanor of the first degree. Violation of
7 subsection (a) is a felony of the third degree if the offender
8 has previously been convicted of a violation of subsection (a)
9 or if the material was sold, distributed, prepared or published
10 for the purpose of resale.
11 (2) Any person who violates subsection (c) or (d) is
12 guilty of a misdemeanor of the first degree. Violation of
13 subsection (c) or (d) is a felony of the third degree if the
14 offender has previously been convicted of a violation of
15 subsection (c) or (d).
16 (3) Findings made in an equity action shall not be
17 binding in the criminal proceedings.
18 (i) Right to jury trial.--The right to trial by jury shall
19 be preserved in all proceedings under this section.
20 (j) Exemptions.--Nothing in this section shall apply to any
21 recognized historical society or museum accorded charitable
22 status by the Federal Government, any county, city, borough,
23 township or town library, any public library, any library of any
24 school, college or university or any archive or library under
25 the supervision and control of the Commonwealth or a political
26 subdivision.
27 (k) Ordinances or resolutions.--Nothing in this chapter
28 shall be construed to invalidate, supersede, repeal or preempt
29 any ordinance or resolution of any political subdivision insofar
30 as it is consistent with this chapter, and political
19890H1141B4325 - 8 -
1 subdivisions further retain the right to regulate any
2 activities, displays, exhibitions or materials not specifically
3 regulated by this chapter.
4 Section 2. Title 18 is amended by adding a section to read:
5 § 7326. Disclosure of confidential tax information.
6 (a) Offense defined.--A person commits a misdemeanor of the
7 third degree if he discloses, except to authorized persons for
8 official governmental purposes, any tax information that is:
9 (1) designated as confidential by a statute or ordinance
10 of a city of the second class; and
11 (2) obtained by him in conjunction with any declaration,
12 return, audit, hearing or verification required or authorized
13 by statute or ordinance.
14 (b) Exception.--Subsection (a) shall not apply where
15 disclosure is required by law or by court order.
16 (c) Definition.--As used in this section, the term "person"
17 includes, but is not limited to, a current or former officer or
18 employee of the Commonwealth or any of its political
19 subdivisions and any other individual who has access to
20 confidential tax information.
21 SECTION 3. THE DEFINITIONS OF "INTELLIGENCE INFORMATION" AND <--
22 "TREATMENT INFORMATION" IN SECTION 9102 OF TITLE 18 ARE AMENDED
23 TO READ:
24 § 9102. DEFINITIONS.
25 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
26 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
27 CONTEXT CLEARLY INDICATES OTHERWISE:
28 * * *
29 "INTELLIGENCE INFORMATION." INFORMATION CONCERNING THE
30 HABITS, PRACTICES, CHARACTERISTICS, POSSESSIONS, ASSOCIATIONS OR
19890H1141B4325 - 9 -
1 FINANCIAL STATUS OF ANY INDIVIDUAL[.] COMPILED IN AN EFFORT TO
2 ANTICIPATE, PREVENT, MONITOR, INVESTIGATE OR PROSECUTE CRIMINAL
3 ACTIVITY. NOTWITHSTANDING THE DEFINITION OF "TREATMENT
4 INFORMATION" CONTAINED IN THIS SECTION, INTELLIGENCE INFORMATION
5 MAY INCLUDE INFORMATION ON PRESCRIBING, DISPENSING, SELLING,
6 OBTAINING OR USING A CONTROLLED SUBSTANCE AS DEFINED IN THE ACT
7 OF APRIL 14, 1972 (P.L.233, NO.64), KNOWN AS THE CONTROLLED
8 SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT.
9 * * *
10 "TREATMENT INFORMATION." INFORMATION CONCERNING MEDICAL,
11 PSYCHIATRIC, PSYCHOLOGICAL OR OTHER REHABILITATIVE TREATMENT
12 PROVIDED, SUGGESTED OR PRESCRIBED FOR ANY INDIVIDUAL CHARGED
13 WITH OR CONVICTED OF A CRIME.
14 Section 3 4. Section 9106 of Title 18 is amended to read: <--
15 § 9106. [Prohibited information] INFORMATION IN CENTRAL <--
16 REPOSITORY OR AUTOMATED SYSTEMS.
17 (a) General rule.--
18 (1) Intelligence information, investigative information <--
19 and treatment information shall not be collected in the
20 central repository [nor in any automated or electronic
21 criminal justice information system]. This prohibition shall
22 not preclude the collection in the central repository [or in
23 any automated or electronic criminal justice information
24 system] of names, words, numbers, phrases or other similar
25 index keys to serve as indices to investigative reports.
26 (2) Intelligence information may be placed in an <--
27 automated or electronic criminal justice system only if:
28 (i) the criminal justice agency has reasonable
29 suspicion of criminal activity; and
30 (ii) access to the intelligence information
19890H1141B4325 - 10 -
1 contained in the automated or electronic criminal justice
2 system is restricted to the authorized employees of the
3 criminal justice agency and cannot be accessed by any
4 other individuals inside or outside that agency.
5 (3) Intelligence information shall be placed within
6 categories designated by the head of the criminal justice
7 agency. The categories shall be based on subject matters that
8 would give rise to prosecution for a State offense graded as
9 a misdemeanor or felony, or for a Federal offense for which
10 the penalty is imprisonment for more than one year.
11 (4) Intelligence information may not be collected in
12 violation of State law.
13 (5) Intelligence information may not be disseminated to
14 any outside agency unless the information has been verified.
15 (6) Intelligence information may not be collected or
16 maintained concerning participation in a political, religious
17 or social organization, or the organization or support of any
18 nonviolent demonstration, assembly, protest, rally or similar
19 form of public speech, unless there is a reasonable suspicion
20 that the subject of the information is, or may be, involved
21 in criminal activity.
22 (7) Investigative information and treatment information
23 contained in the files of any criminal justice agency may be
24 placed within an automated or electronic criminal justice
25 information system, provided that access to the investigative
26 information and treatment information contained in the
27 automated or electronic criminal justice information system
28 is restricted to authorized employees of that agency and
29 cannot be accessed by individuals outside of that agency.
30 (b) Dissemination of protected information.--
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1 (1) Intelligence information, investigative information
2 and treatment information shall not be disseminated to any
3 department, agency or individual unless the agency requesting
4 the information is a criminal justice agency.
5 (2) Criminal justice agencies may request and may
6 receive intelligence information, investigative information
7 and treatment information only in connection with the duties
8 of a criminal justice agency and only when the request for
9 information is based upon the name, fingerprints, modus
10 operandi, genetic typing, voice print or other identifying
11 characteristic.
12 (3) Intelligence information shall be disseminated only
13 to other criminal justice agencies which have established
14 policies and procedures regarding data entry, maintenance,
15 security, categorization and dissemination which are
16 consistent with the regulations promulgated under this
17 section. The regulations should not include any review of
18 intelligence information by the promulgating agency.
19 (4) If an intelligence officer of the disseminating
20 agency is notified that intelligence information which has
21 been previously disseminated to another criminal justice
22 agency is materially misleading, obsolete or otherwise
23 unreliable, the information shall be corrected and the
24 recipient agency notified of the change within a reasonable
25 period of time.
26 (5) Criminal justice agencies shall establish retention
27 schedules for intelligence information. Intelligence
28 information shall be purged under the following conditions:
29 (i) The data is no longer relevant or necessary to
30 the goals and objectives of the criminal justice agency.
19890H1141B4325 - 12 -
1 (ii) The data has become obsolete, making it
2 unreliable for present purposes; and the utility of
3 updating the data would be worthless.
4 (iii) The data cannot be utilized for present or
5 future strategic or tactical intelligence studies.
6 (c) Security of the information.--A criminal justice agency
7 or other entity which possesses information protected by this
8 section, but which is not the source of the information, may
9 make use of or disclose such information to the extent that such
10 use or disclosure is appropriate to the proper performance of
11 the criminal justice agency using or disclosing the information;
12 otherwise, the criminal justice agency may not disseminate such
13 information. Agencies and individuals receiving intelligence
14 information, investigative information or treatment information
15 assume equal responsibility for the security of such information
16 as the originating agency.
17 (B) COLLECTION OF PROTECTED INFORMATION.-- <--
18 (1) INTELLIGENCE INFORMATION MAY BE PLACED IN AN
19 AUTOMATED OR ELECTRONIC CRIMINAL JUSTICE SYSTEM ONLY IF THE
20 FOLLOWING APPLY:
21 (I) THE CRIMINAL JUSTICE AGENCY HAS REASONABLE
22 SUSPICION OF CRIMINAL ACTIVITY.
23 (II) ACCESS TO THE INTELLIGENCE INFORMATION
24 CONTAINED IN THE AUTOMATED OR ELECTRONIC CRIMINAL JUSTICE
25 SYSTEM IS RESTRICTED TO THE AUTHORIZED EMPLOYEES OF THE
26 CRIMINAL JUSTICE AGENCY AND CANNOT BE ACCESSED BY ANY
27 OTHER INDIVIDUALS INSIDE OR OUTSIDE OF THE AGENCY.
28 (III) THE INTELLIGENCE INFORMATION IS RELATED TO
29 CRIMINAL ACTIVITY THAT WOULD GIVE RISE TO PROSECUTION FOR
30 A STATE OFFENSE GRADED A MISDEMEANOR OR FELONY, OR FOR A
19890H1141B4325 - 13 -
1 FEDERAL OFFENSE FOR WHICH THE PENALTY IS IMPRISONMENT FOR
2 MORE THAN ONE YEAR. INTELLIGENCE INFORMATION SHALL BE
3 CATEGORIZED BASED UPON SUBJECT MATTER.
4 (IV) THE INTELLIGENCE INFORMATION IS NOT COLLECTED
5 IN VIOLATION OF STATE LAW.
6 (2) INTELLIGENCE INFORMATION MAY NOT BE COLLECTED OR
7 MAINTAINED IN AN AUTOMATED OR ELECTRONIC CRIMINAL JUSTICE
8 SYSTEM CONCERNING PARTICIPATION IN A POLITICAL, RELIGIOUS OR
9 SOCIAL ORGANIZATION, OR IN THE ORGANIZATION OR SUPPORT OF ANY
10 NONVIOLENT DEMONSTRATION, ASSEMBLY, PROTEST, RALLY OR SIMILAR
11 FORM OF PUBLIC SPEECH, UNLESS THERE IS A REASONABLE SUSPICION
12 THAT THE PARTICIPATION BY THE SUBJECT OF THE INFORMATION IS
13 RELATED TO CRIMINAL ACTIVITY OR PRISON RULE VIOLATION.
14 (3) INVESTIGATIVE INFORMATION AND TREATMENT INFORMATION
15 CONTAINED IN FILES OF ANY CRIMINAL JUSTICE AGENCY MAY BE
16 PLACED WITHIN AN AUTOMATED OR ELECTRONIC CRIMINAL JUSTICE
17 INFORMATION SYSTEM, PROVIDED THAT ACCESS TO THE INVESTIGATIVE
18 INFORMATION AND TREATMENT INFORMATION CONTAINED IN THE
19 AUTOMATED OR ELECTRONIC CRIMINAL JUSTICE INFORMATION SYSTEM
20 IS RESTRICTED TO AUTHORIZED EMPLOYEES OF THAT AGENCY AND
21 CANNOT BE ACCESSED BY INDIVIDUALS OUTSIDE OF THE AGENCY.
22 (C) DISSEMINATION OF PROTECTED INFORMATION.--
23 (1) INTELLIGENCE INFORMATION MAY BE PLACED WITHIN AN
24 AUTOMATED OR ELECTRONIC CRIMINAL JUSTICE INFORMATION SYSTEM
25 AND DISSEMINATED ONLY IF THE FOLLOWING APPLY:
26 (I) THE INFORMATION IS RELIABLE AS DETERMINED BY AN
27 AUTHORIZED INTELLIGENCE OFFICER.
28 (II) THE DEPARTMENT, AGENCY OR INDIVIDUAL REQUESTING
29 THE INFORMATION IS A CRIMINAL JUSTICE AGENCY WHICH HAS
30 POLICIES AND PROCEDURES ADOPTED BY THE OFFICE OF ATTORNEY
19890H1141B4325 - 14 -
1 GENERAL IN CONSULTATION WITH THE PENNSYLVANIA STATE
2 POLICE WHICH ARE CONSISTENT WITH THIS ACT AND INCLUDE:
3 (A) DESIGNATION OF AN INTELLIGENCE OFFICER OR
4 OFFICERS BY THE HEAD OF THE CRIMINAL JUSTICE AGENCY
5 OR HIS DESIGNEE.
6 (B) ADOPTION OF ADMINISTRATIVE, TECHNICAL AND
7 PHYSICAL SAFEGUARDS, INCLUDING AUDIT TRAILS, TO
8 INSURE AGAINST UNAUTHORIZED ACCESS AND AGAINST
9 INTENTIONAL OR UNINTENTIONAL DAMAGES.
10 (C) LABELING INFORMATION TO INDICATE LEVELS OF
11 SENSITIVITY AND LEVELS OF CONFIDENCE IN THE
12 INFORMATION.
13 (III) THE INFORMATION IS REQUESTED IN CONNECTION
14 WITH THE DUTIES OF THE CRIMINAL JUSTICE AGENCY REQUESTING
15 THE INFORMATION, AND THE REQUEST FOR INFORMATION IS BASED
16 UPON A NAME, FINGERPRINTS, MODUS OPERANDI, GENETIC
17 TYPING, VOICE PRINT OR OTHER IDENTIFYING CHARACTERISTIC.
18 (2) IF AN INTELLIGENCE OFFICER OF A DISSEMINATING AGENCY
19 IS NOTIFIED THAT INTELLIGENCE INFORMATION WHICH HAS BEEN
20 PREVIOUSLY DISSEMINATED TO ANOTHER CRIMINAL JUSTICE AGENCY IS
21 MATERIALLY MISLEADING, OBSOLETE OR OTHERWISE UNRELIABLE, THE
22 INFORMATION SHALL BE CORRECTED AND THE RECIPIENT AGENCY
23 NOTIFIED OF THE CHANGE WITHIN A REASONABLE PERIOD OF TIME.
24 (3) CRIMINAL JUSTICE AGENCIES SHALL ESTABLISH RETENTION
25 SCHEDULES FOR INTELLIGENCE INFORMATION. INTELLIGENCE
26 INFORMATION SHALL BE PURGED UNDER THE FOLLOWING CONDITIONS:
27 (I) THE DATA IS NO LONGER RELEVANT OR NECESSARY TO
28 THE GOALS AND OBJECTIVES OF THE CRIMINAL JUSTICE AGENCY.
29 (II) THE DATA HAS BECOME OBSOLETE, MAKING IT
30 UNRELIABLE FOR PRESENT PURPOSES; AND THE UTILITY OF
19890H1141B4325 - 15 -
1 UPDATING THE DATA WOULD BE WORTHLESS.
2 (III) THE DATA CANNOT BE UTILIZED FOR STRATEGIC OR
3 TACTICAL INTELLIGENCE STUDIES.
4 (4) INVESTIGATIVE AND TREATMENT INFORMATION SHALL NOT BE
5 DISSEMINATED TO ANY DEPARTMENT, AGENCY OR INDIVIDUAL UNLESS
6 THE DEPARTMENT, AGENCY OR INDIVIDUAL REQUESTING THE
7 INFORMATION IS A CRIMINAL JUSTICE AGENCY WHICH REQUESTS THE
8 INFORMATION IN CONNECTION WITH ITS DUTIES, AND THE REQUEST IS
9 BASED UPON A NAME, FINGERPRINTS, MODUS OPERANDI, GENETIC
10 TYPING, VOICE PRINT OR OTHER IDENTIFYING CHARACTERISTIC.
11 (5) EACH MUNICIPAL POLICE DEPARTMENT ACCESSING AUTOMATED
12 INFORMATION SHALL FILE A COPY OF ITS PROCEDURES WITH THE
13 PENNSYLVANIA STATE POLICE FOR APPROVAL. SUCH PLAN SHALL BE
14 REVIEWED WITHIN 60 DAYS.
15 (6) EACH DISTRICT ATTORNEY ACCESSING AUTOMATED
16 INFORMATION SHALL FILE A COPY OF ITS PROCEDURES WITH THE
17 OFFICE OF ATTORNEY GENERAL FOR APPROVAL. SUCH PLAN SHALL BE
18 REVIEWED WITHIN 60 DAYS.
19 (D) SECONDARY DISSEMINATION PROHIBITED.--A CRIMINAL JUSTICE
20 AGENCY WHICH POSSESSES INFORMATION PROTECTED BY THIS SECTION,
21 BUT WHICH IS NOT THE SOURCE OF THE INFORMATION, SHALL NOT
22 DISSEMINATE OR DISCLOSE THE INFORMATION TO ANOTHER CRIMINAL
23 JUSTICE AGENCY BUT SHALL REFER THE REQUESTING AGENCY TO THE
24 AGENCY WHICH WAS THE SOURCE OF THE INFORMATION. THIS PROHIBITION
25 SHALL NOT APPLY IF THE AGENCY RECEIVING THE INFORMATION IS
26 INVESTIGATING OR PROSECUTING A CRIMINAL INCIDENT IN CONJUNCTION
27 WITH THE AGENCY POSSESSING THE INFORMATION. AGENCIES RECEIVING
28 INFORMATION PROTECTED BY THIS SECTION ASSUME THE SAME LEVEL OF
29 RESPONSIBILITY FOR THE SECURITY OF SUCH INFORMATION AS THE
30 AGENCY WHICH WAS THE SOURCE OF THE INFORMATION.
19890H1141B4325 - 16 -
1 (d) (E) Notations of the record.--Criminal justice agencies <--
2 maintaining intelligence information, investigative information
3 or treatment information must enter, as a permanent part of an
4 individual's information file, a listing of all persons and
5 agencies to whom they have disseminated that particular
6 information, the date of the dissemination and the purpose for
7 which the information was disseminated. This listing shall be
8 maintained separate from the record itself.
9 (e) (F) Security requirements.--Every criminal justice <--
10 agency collecting, storing or disseminating intelligence
11 information, investigative information or treatment information
12 shall insure the confidentiality and security of such
13 information by providing that wherever such information is
14 maintained, a criminal justice agency must:
15 (1) institute procedures to reasonably protect any
16 repository from theft, fire, sabotage, flood, wind or other
17 natural or man-made disasters;
18 (2) select, supervise and train all personnel authorized
19 to have access to intelligence information, investigative
20 information or treatment information;
21 (3) insure that, where computerized data processing is
22 employed, the equipment utilized for maintaining intelligence
23 information, investigative information or treatment
24 information is dedicated solely to purposes related to the
25 administration of criminal justice, or, if the equipment is
26 not used solely for the administration of criminal justice,
27 the criminal justice agency is accorded equal management
28 participation in computer operations used to maintain the
29 intelligence information, investigative information or
30 treatment information.
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1 (f) (G) Penalties.--Any person, including any agency or <--
2 organization, who violates the provisions of this section shall
3 be subject to the administrative penalties provided in section
4 9181 (relating to general administrative sanctions) and the
5 civil penalties provided in section 9183 (relating to civil
6 actions) IN ADDITION TO ANY OTHER CIVIL OR CRIMINAL PENALTY <--
7 PROVIDED BY LAW.
8 SECTION 5. SECTION 9141 OF TITLE 18 IS AMENDED TO READ: <--
9 § 9141. [ANNUAL AUDIT OF REPOSITORIES] AUDITS.
10 (A) AUDIT REQUIRED.--
11 (1) THE ATTORNEY GENERAL SHALL CONDUCT ANNUAL AUDITS OF
12 THE CENTRAL REPOSITORY AND OF A REPRESENTATIVE SAMPLE OF ALL
13 REPOSITORIES. THE OFFICE OF ATTORNEY GENERAL SHALL CONDUCT A
14 REVIEW OF STATE CRIMINAL JUSTICE AGENCIES' AUTOMATED POLICIES
15 AND PROCEDURES ESTABLISHED PURSUANT TO SECTION 9106 (RELATING
16 TO INFORMATION IN CENTRAL REPOSITORY OR AUTOMATED SYSTEMS) TO
17 ENSURE THAT THE PROVISIONS OF THIS CHAPTER ARE UPHELD WITHIN
18 TWO YEARS OF THE EFFECTIVE DATE OF THIS ACT.
19 (2) THE PENNSYLVANIA STATE POLICE SHALL CONDUCT AN
20 ANNUAL AUDIT OF AT LEAST 5% OF ALL MUNICIPAL POLICE
21 DEPARTMENT PLANS, POLICIES OR PROCEDURES WHICH ARE
22 IMPLEMENTED PURSUANT TO SECTION 9106(C), TO ENSURE THAT THE
23 PROVISIONS OF THIS CHAPTER ARE UPHELD. THE FIRST SUCH AUDIT
24 SHALL BE CONDUCTED WITHIN TWO YEARS OF THE EFFECTIVE DATE OF
25 THIS ACT. A COPY OF THE AUDIT SHALL BE SUBMITTED TO THE
26 ATTORNEY GENERAL.
27 (B) ACCESS TO RECORDS.--PERSONS CONDUCTING THE AUDIT SHALL
28 BE PROVIDED ACCESS TO ALL RECORDS, REPORTS AND LISTINGS REQUIRED
29 TO CONDUCT AN AUDIT OF CRIMINAL HISTORY RECORD INFORMATION, AND
30 ALL PERSONS WITH ACCESS TO SUCH INFORMATION OR AUTHORIZED TO
19890H1141B4325 - 18 -
1 RECEIVE SUCH INFORMATION SHALL COOPERATE WITH AND PROVIDE
2 INFORMATION REQUESTED.
3 (C) CONTENTS OF AUDIT.--THE AUDIT SHALL CONTAIN A REPORT OF
4 DEFICIENCIES AND RECOMMENDATIONS FOR THE CORRECTION OF SUCH
5 DEFICIENCIES. UPON THE COMPLETION OF EVERY AUDIT, THE AUDITED
6 AGENCY SHALL CARRY OUT THE RECOMMENDATIONS WITHIN A REASONABLE
7 PERIOD OF TIME UNLESS THE AUDIT REPORT IS APPEALED TO THE
8 ATTORNEY GENERAL AND THE APPEAL IS UPHELD.
9 (D) MODIFICATION OF RECOMMENDATIONS.--THE ATTORNEY GENERAL
10 SHALL HAVE THE POWER TO MODIFY THE CORRECTIVE MEASURES
11 RECOMMENDED BY THE AUDIT.
12 SECTION 6. TITLE 18 IS AMENDED BY ADDING A SECTION TO READ:
13 § 9143. REGULATIONS.
14 IT SHALL BE THE DUTY AND RESPONSIBILITY OF THE ATTORNEY
15 GENERAL IN CONSULTATION WITH THE PENNSYLVANIA STATE POLICE TO
16 ADOPT RULES AND REGULATIONS PURSUANT TO THIS ACT. THE OFFICE OF
17 ATTORNEY GENERAL IN CONSULTATION WITH THE PENNSYLVANIA STATE
18 POLICE SHALL HAVE THE POWER AND AUTHORITY TO PROMULGATE, ADOPT,
19 PUBLISH AND USE GUIDELINES FOR THE IMPLEMENTATION OF THIS ACT
20 FOR A PERIOD OF ONE YEAR IMMEDIATELY FOLLOWING THE EFFECTIVE
21 DATE OF THIS SECTION PENDING ADOPTION OF FINAL RULES AND
22 REGULATIONS.
23 Section 4 7. This act shall take effect as follows: <--
24 (1) Section 3 4 of this act, amending section 9106, <--
25 shall take effect in 60 days.
26 (2) The remainder of this act shall take effect
27 immediately.
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