Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron
Attorney General
Capitol Building, Suite 118
700 Capital Avenue
Frankfort, Kentucky 40601
(502) 696-5300
Fax: (502) 564-2894
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.Opinion of the Attorney General 23-01
January 3, 2023
Page 2
2
The Defense Counterintelligence and Security Agency is a federal security
agency housed within the Department of Defense.1 One of the agency’s primary
functions is personnel vetting, which includes conducting background investigations
and continuous screening for the federal and contractor workforce.2 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.3
Congress passed 5 U.S.C. § 9101 to ensure that all states participated in this
important information-sharing duty.4 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.5
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.”6 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.”7
Thus, pursuant to this statute, covered federal agencies are entitled to receive
criminal history record information from state and local criminal justice agencies
1
Def.
Counterintelligence
&
Sec.
Agency,
Frequently
Asked
Questions,
https://www.dcsa.mil/about/faq/ (last visited Jan. 3, 2023).
2
Def. Counterintelligence & Sec. Agency, About Us, https://www.dcsa.mil/About/ (last visited Jan.
3, 2023).
3
5 U.S.C. §9101(b)(1)(A)(i)-(iv), Def. Counterintelligence & Sec. Agency, Background Investigations,
https://www.dcsa.mil/mc/pv/investigations/ (last visited Jan. 3, 2023).
4
H.R. Conf. Rep. No. 99-373, at 24, 25 (1985) (“[W]hile many states and localities have cooperated
voluntarily in providing criminal history record information to DOD, OPM, and CIA for the purpose of
determining eligibility for access to classified information or assignment to or retention in sensitive
national security duties, a significant number of states and localities because of their laws or policies
have not done so, which has limited the ability of DOD, OPM and CIA to conduct effective
investigations.”).
5
Id.
6 5 U.S.C. § 9101(b)(1).
7 Id. 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.”Opinion of the Attorney General 23-01
January 3, 2023
Page 2
3
once the federal agency requests it.8 The requesting covered federal agencies include,
among others, the Department of Defense.9 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.
After the request is made, “criminal justice agencies” are required to comply.10
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.”11 To demonstrate the
importance of this requirement, 5 U.S.C. § 9101(b)(4) provides that it will preempt
any state or local laws.12
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.13 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
8
5 U.S.C. § 9101(b)(1) (1985).
9
5 U.S.C. § 9101(a)(6).
10 5 U.S.C. § 9101(b)(1) (“…criminal justice agencies shall make available all criminal history record
information regarding individuals under investigation by that covered agency[.]”).
11 5 U.S.C. § 9101(a)(1).
12 5 U.S.C. §9101(b)(4) (“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.”)
13 5 U.S.C. § 9101(c).