12. Sex offender records
The Alaska Sex Offender Registration Act (ASORA) requires persons convicted of sex offenses or child kidnapping to register and periodically re-register with the Alaska Department of Corrections, the Alaska State Troopers, or local police, and to disclose detailed personal information, including that specified in AS 12.63.010, some of which is not otherwise public. The Department of Public Safety is required to maintain a central registry of sex offenders and child kidnappers. AS 18.65.087. Most of the disclosed information is publicly disseminated and is published by the state on the internet. Specifically, AS 18.65.087(b) provides that information about a sex offender or child kidnapper that is contained in the central registry, including sets of fingerprints, is confidential and not subject to public disclosure except as to the sex offender's or child kidnapper's name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with requirements for reporting residency and other information, or cannot be located. The department, at least quarterly, shall compile a list of those persons with a duty to register under who have failed to register, whose addresses cannot be verified, or who otherwise cannot be located. The department shall post this list on the internet and request the public's assistance in locating these persons. 18.65.087(g). The name, address, and other identifying information of a member of the public who makes an information request under this section is not a public record under the Public Records Act. AS 18.65.087(e).
In general, courts have upheld ASORA against legal challenges. In Patterson v. St., 985 P.2d 1007 (Alaska App. 1999), the appeals court ruled that the state's sex offender registration program does not violate federal or state constitutional rights of privacy. The court in Patterson noted that federal constitution's implicit right of privacy does not attach to matters already within the public domain, as information the public can access under the statute "is already in large part." 985 P.2d at 1016. With respect to the state's explicit constitutional right of privacy, the court noted the constitutional protection of an individual's privacy depends on the factual context and the competing interests between society and the individual, and that at least in the context of convicted sex offenders, the offender's assumed subjective expectation of privacy in biographical information gathered and released pursuant to the statute must yield to society's public safety interest. Id. The court found that any subjective expectation of privacy held by the sex offenders in matters already of public record, such as details of conviction or date of birth, or in his physical appearance — as represented by his photograph, or in his employer's address, was not an expectation society would recognize as reasonable. Id.
However, courts have found the registration requirement unconstitutional with respect to two classes of convicted offenders. First, ASORA violated the due process rights of sex offenders and child kidnappers who were given a suspended imposition of sentence (SIS) by a court, and successfully made a substantial showing of rehabilitation to get through their probationary period without being sentenced, so that their convictions were set aside, before the effective date of ASORA, could not be required to register under the Act. Doe v. State, 92 P.3d 398 (Alaska 2004). The court said there is a significant difference between a public record that continues to memorialize a conviction after it is set aside and a state-sponsored internet site that displays the information ASORA requires. The difference is not merely that the state has improved access to public information it had a legitimate right to gather at the time a defendant was convicted. The difference instead lies in the extent and nature of information to be divulged and the offender's duty to keep it updated. To advance ASORA's purposes effectively, the registry must include enough information to enable the public to reduce the danger registrants are assumed to pose. ASORA therefore requires a sex offender to disclose and update extensive personal information. Much of this information was not otherwise available to the public or the state when the conviction was set aside and much of it would not otherwise be presently available to either the public or the state. Most of the information about Doe that was to have been published in the ASORA registry was not in the public record when Doe was convicted or when the court set aside his conviction and ordered him discharged. (The Legislature subsequently amended ASORA to make it applicable even to offenders whose convictions have been set aside.)
Second, under Alaska’s constitution, ASORA’s registration and publication requirements cannot be applied to persons who committed their crimes before ASORA became effective. See also, Doe v. State, 189 P.3d 999, 1011 (Alaska 2008). The Alaska Supreme Court ruled that ASORA is basically punitive in nature, so that applying its new requirements to those convicted and sentenced before it went into effect violated the ban on retroactive punishment embodied in the “Ex Post Facto clause” of the Constitution. The Ninth Circuit Court of Appeals had reached the same conclusion analyzing the law under the Ex Post Facto clause of the federal constitution, but the U.S. Supreme Court reversed that decision. See Doe I v. Otte, 259 F. 3d 979 (9th Cir. 2001), rev’d. sub nom., Smith v. Doe, 123 S.Ct. 1140 (2003). Noting that it has the authority and, when necessary, duty to construe the provisions of the Alaska Constitution to provide greater protections than those arising out of the identical federal clauses, the Alaska Supreme Court construed the analogous provision of the state constitution as providing more protection in this context than the federal constitution does. The U.S. Supreme Court had held the statute was not punitive, notwithstanding publication of the registry on the internet. 123 S.Ct. at 1150. (“The fact that Alaska posts the information on the internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the internet is greater than anything that could have been designed in colonial times. ... Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.”).
The Alaska Supreme Court, however, found that whatever the intent of the Alaska Legislature in passing ASORA, the effects of the law were clearly punitive. It analyzed the same seven factors the US Supreme Court did, but reached a different conclusion in doing so. With respect to one factor, for example, the Alaska court found “ASORA requires release of information that is in part not otherwise public or readily available. Moreover, the regulations authorize dissemination of most ASORA registration information ‘for any purpose, to any person.’ Taken in conjunction with the Alaska Public Records Act, ASORA's treatment of this information, confirmed by the regulations, seems to require that the information be publicly available. By federal law, it is disseminated statewide, indeed worldwide, on the state's website. There is a significant distinction between retaining public paper records of a conviction in state file drawers and posting the same information on a state-sponsored website; this posting has not merely improved public access but has broadly disseminated the registrant's information, some of which is not in the written public record of the conviction. As the Alaska Court of Appeals noted, ‘ASORA does provide for dissemination of substantial personal and biographical information about a sex offender that is not otherwise readily available from a single governmental source.’ We also recognized in Doe A that several sex offenders had stated that they had lost their jobs, been forced to move from their residences, and received threats of violence following establishment of the registry, even though the facts of their convictions had always been a matter of public record. We therefore conclude that the harmful effects of ASORA stem not just from the conviction but from the registration, disclosure, and dissemination provisions.” 189 P.3d at 1011.
The Department of Public Safety maintains a website for sexual offenders who have been given a level two or level three risk assessment. A.R.S. § 13-3827(A). The website will provide (1) the offender’s name, address, and age, (2) a current photograph, and (3) the offense committed and notification level. Id. After a sexual offender has been released from confinement, the local law enforcement agency will notify the community of the offender’s presence. A.R.S. § 13-3825(C).
Information collected by the Sex Offender Assessment Committee is generally exempt from the FOIA. Ark. Code Ann. § 12-12-913(e)(2). However, certain information shall be published on the website for the State of Arkansas for sex offenders who are classified as Level 3 or 4 offenders or who were at least eighteen years old at the time of their crime and the victim was fourteen years old or younger. The following information that must be made public:
(i) The sex offender’s complete name, as well as any alias;
(ii) The sex offender’s date of birth;
(iii) Any sex offense to which the sex offender has pleaded guilty or nolo contendere or of which the sex offender has been found guilty by a court of competent jurisdiction;
(iv) The street name and block number, county, city, and zip code where the sex offender resides;
(v) The sex offender’s race and gender;
(vi) The date of the last address verification of the sex offender provided to the Arkansas Crime Information Center;
(vii) The most recent photograph of the sex offender that has been submitted to the center; and
(viii) The sex offender’s parole or probation office.
Ark. Code Ann. § 12-12-913(j).
Local summary criminal history information (“rap sheet”) is exempt from disclosure. Cal. Penal Code § 13300. Also, records pertaining to closed investigations unrelated to any contemporaneous law enforcement activities are not required to be disclosed under Government Code Section 6254(f). Only specific information from arrest records must be disclosed. Cal. Gov’t Code § 6254(f). See Cty. of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 589-99, 22 Cal. Rptr. 2d 409 (1993). But see Frederick v. Superior Court, 233 Cal. App. 4th 209, 233, 182 Cal. Rptr. 3d 526 (2015) (casting doubt on continued validity of Kusar).
Despite these laws and pursuant to the Sex Offender Registration Act of Section 290 of the Penal Code, certain sex offenders are required to register with local law enforcement agencies when coming into the state or moving residences within the state. Cal. Penal Code § 290. Notwithstanding any other law, law enforcement agencies may provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, “when necessary to ensure the public safety based upon information available to the entity concerning that specific person’s current risk of sexual or violent re-offense . . . .” Cal. Penal Code § 290.45. Additionally, under Megan’s Law, the Department of Justice is required to make information about registered sex offenders publicly available via the Internet. Cal. Penal Code § 290.46. There are four categories of sex offenders for purposes of the disclosure requirements. The name of the registrant, address, a photograph, the year of most recent conviction, year of release and subsequent felony convictions is among the information available on the DOJ’s website for some categories of registrants. Cal. Penal Code § 290.46; see also DOJ's Megan’s Law Website.
District of Columbia
D.C. Code Ann. § 22-4011 gives the Court Services and Offender Supervision Agency for D.C. the authority to maintain registration of sex offenders, to affirmatively inform persons (through electronic notification, media release, or telephone calls, for example) regarding sex offenders, and to make information about sex offenders available for public inspection or in response to inquiries. The Code gives the Metropolitan Police Department authority and control over the system of public inspection by means of the Internet.
Information on the Sex Offender Custody Level Review form is protected from disclosure under Haw. Rev. Stat. chapter 846. The form contains information about inmates who: (1) were charged but not convicted of a sex offense as an adult, (2) have a prior juvenile record of a sex offense, or (3) have exhibited deviant behavior while incarcerated. Sex Offender Data, OIP Op. Ltr. No. 95-11 (May 8, 1995).
Open and accessible via http://www.isp.state.il.us/sor/. See 730 ILCS 152/115 (a), (b). The Illinois Department of State Police maintains that statewide online sex offender database, which identifies persons who have been convicted of certain sex offenses and/or crimes against children. Id.
Access to criminal histories is governed by Ind. Code Section 10-13-2-27. Indiana Code Section11-8-8-7 requires sex offenders to register with the state. The Indiana Sheriffs’ Association maintains the searchable Indiana Sex and Violent Registry at http://www.icrimewatch.net/indiana.php.
See generally Iowa Code § 22.7(5).
Sex offender records are not confidential under Iowa Code § 692A.121, which provides:
1. The department shall maintain an internet site for the public and others to access relevant information about sex offenders. The internet site, at a minimum, shall be searchable by name, county, city, zip code, and geographic radius.
2. The department shall provide updated or corrected relevant information within five business days of the information being updated or corrected, from the sex offender registry to the following:
a. A criminal or juvenile justice agency, an agency of the state, a sex offender registry of another jurisdiction, or the federal government.
b. The general public through the sex offender registry internet site.
(1) The following relevant information about a sex offender shall be disclosed on the internet site:
(a) The date of birth.
(b) The name, nickname, aliases, including ethnic or tribal names.
(d) The physical description, including scars, marks, or tattoos.
(e) The residence.
(f) The statutory citation and text of the offense committed that requires registration under this chapter.
(g) A specific reference indicating whether a particular sex offender is subject to residency restrictions pursuant to section 692A.114.
(h) A specific reference indicating whether a particular sex offender is subject to exclusion zone restrictions pursuant to section 692A.113.
(2) The following relevant information shall not be disclosed on the internet site:
(a) The relevant information about a sex offender who was under twenty years of age at the time the offender committed a violation of section 709.4, subsection 2, paragraph "c", subparagraph (4).
(b) The employer name, address, or location where a sex offender acts as an employee in any form of employment.
(c) The address and name of any school where a student required to be on the registry attends.
(d) The real name of a sex offender protected under 18 U.S.C. § 3521.
(e) The statutory citation and text of the offense committed for an incest conviction in violation of section 726.2, however, the citation and text of an incest conviction shall be disclosed on the internet site as a conviction of section 709.4 or 709.8.
(f) Any other relevant information not described in subparagraph (1).
c. The general public through any other means, at the discretion of the department, any relevant information that is available on the internet site.
3. A criminal or juvenile justice agency may provide relevant information from the sex offender registry to the following:
a. A criminal or juvenile justice agency, an agency of the state, or a sex offender registry of another jurisdiction, or the federal government.
b. The general public, any information available to the general public in subsection 2, including public and private agencies, organizations, public places, child care facilities, religious and youth organizations, neighbors, neighborhood associations, community meetings, and employers. The relevant information available to the general public may be distributed to the public through printed materials, visual or audio press releases, radio communications, or through a criminal or juvenile justice agency's internet site.
4. When a sex offender moves into a school district or moves within a school district, the county sheriff of the county of the offender's new residence shall provide relevant information that is available to the general public in subsection 2 to the administrative office of the school district in which the person required to register resides, and shall also provide relevant information to any nonpublic school near the offender's residence.
5. a. A member of the public may contact a county sheriff's office to request relevant information from the registry regarding a specific sex offender. A person making a request for relevant information may make the request by telephone, in writing, or in person, and the request shall include the name of the person and at least one of the following identifiers pertaining to the sex offender about whom the information is sought:
(1) The date of birth of the person.
(2) The social security number of the person.
(3) The address of the person.
(4) Internet identifiers.
(5) Telephone numbers, including any landline or wireless numbers.
b. The relevant information made available to the general public pursuant to this subsection shall include all the relevant information provided to the general public on the internet site pursuant to subsection 2, and the following additional relevant information:
(1) Educational institutions attended as a student, including the name and address of such institution.
(2) Employment information including the name and address of employer.
(3) Temporary lodging information, including the dates when residing at the temporary lodging.
(4) Vehicle information.
c. A county sheriff or police department shall not charge a fee relating to a request for relevant information.
6. A county sheriff shall also provide to a person upon request access to a list of all registrants in that county.
7. The following relevant information shall not be provided to the general public:
a. The identity of the victim.
b. Arrests not resulting in a conviction.
c. Passport and immigration documents.
d. A government issued driver's license or identification card.
e. DNA information.
g. Palm prints.
h. Professional licensing information.
i. Social security number.
j. Real name protected under 18 U.S.C. § 3521.
8. Notwithstanding sections 232.147 through 232.151, records concerning convictions which are committed by a minor may be released in the same manner as records of convictions of adults.
9. A person may contact the department or a county sheriff's office to verify if a particular internet identifier or telephone number is one that has been included in a registration by a sex offender.
10. The department shall include links to sex offender safety information, educational resources pertaining to the prevention of sexual assaults, and the national sex offender registry.
11. The department shall include on the sex offender registry internet site instructions and any applicable forms necessary for a person seeking correction of information that the person contends is erroneous.
12. When the department receives and approves registration data, such data shall be made available on the sex offender registry internet site within five business days.
13. The department shall maintain an automated electronic mail notification system, which shall be available by free subscription to any person, to provide notice of addition, deletion, or changes to any sex offender registration, relevant information within a postal zip code or, if selected by a subscriber, a geographic radius or, if selected by a subscriber, specific to a sex offender.
14. Sex offender registry records are confidential records not subject to examination and copying by a member of the public and shall only be released as provided in this section.
Disclosure of sex offender information is public record available for disclosure so long as the victim’s identifying information is not disclosed. K.S.A. 45-221(a)(29)(c). The state Bureau of Investigation's disclosure on the internet of sex offender registration information, when construed in harmony with the Open Records Act, does not violate the sex offender registration statute. K.S.A. 22-4901 et seq.; 45-215 et seq.; State v. Wilkinson, 9 P.3d 1, 269 Kan. 603 (2000).
No specific provision, but under the Act, sex offender records should be treated as a public record and should be produced to a requester absent an applicable exemption. Photographs of convicted sex offenders are not available without special authorization from the Parole Board. La. Rev. Stat. Ann. § 15:546(A), 15:547(C); Op. Att'y Gen. 94-338. One opinion of the Attorney General further suggests that mugshots in general are also not available for inmates or ex-offenders without special authorization from the Department of Corrections. Op. Att'y Gen. 94-338.
Sex offender records are not addressed under the Act. Minn. Stat. § 241.67, subd. 9, requires facilities providing treatment to sex offenders as a condition of probation to provide the commissioner with relevant information on the treatment of those offenders, however, such data is to be reported in the aggregate.
Any person convicted in Montana (or outside of Montana under a similar state or federal statute) under Mont. Code Ann. § 46-23-502(2), must register with the city or county law enforcement within 10 days of entering a county of the state for purposes of taking up either temporary or permanent residence in the county. 47 Mont. A.G. Op. 15 (1998). At a minimum, the name of the offender must be released to the public. 47 Mont. A.G. Op. 15 (1998). Additional information is now available. See the Montana Department of Justice website for more information and a listing of registered sexual offenders in each Montana community. Web site address is: https://app.doj.mt.gov/apps/svow/search.aspx.
In Doe v. Poritz, 142 N.J. 1 (1995), the Supreme Court examined the constitutionality of two statutes concerning sex offenders that were enacted as part of a group of laws generally referred to as Megan's Law. The Registration Law, N.J.S.A. 2C:7-1 to :7-5, required that certain convicted sex offenders register with law enforcement authorities. The Community Notification Law, N.J.S.A. 2C:7-6 to :7-11, provided for notice to the community of the presence of such offenders.
In ruling that both laws were constitutional, the court held that the constitution did not prevent society from attempting to protect itself from convicted sex offenders, so long as the means of protection were reasonably designed for that purpose, and only for that purpose, and were not designed to punish. The court found, however, that appellant had a protectable liberty interest in his privacy and reputation, which triggered the right to due process. The court, therefore, concluded that a judicial hearing was constitutionally mandated prior to community notification under the Community Notification Law.
Generally open. See N.D.C.C. § 12.1-32-15. Relevant and necessary conviction and registration information must be disclosed to the public if the individual is a moderate or high risk and the disclosure is necessary for public protection. N.D.C.C. § 12.1-32-15(13). Upon request, law enforcement agencies may release conviction and registration information regarding low-risk, moderate-risk, or high-risk offenders. N.D.C.C. § 12.1-32-15(13).
Written notice that is provided to neighbors regarding tier III offenders are public records, as is the electronic database containing information to such offenders. Ohio Rev. Code §§ 2950.081, 2950.11(E), 2950.13(A)(11). A more detailed electronic database that allows law enforcement representatives to electronically search the state registry of such offenders is not a public record. Ohio Rev. Code §§ 2950.11(E), 2950.13(A)(13).
ORS 163A.225 places limits on the information that may be released, concerning first-time sex offenders and juvenile sex offenders, to the sex offender’s name and date of birth, name and zip code, name and telephone number of the supervising contact person; the names of any institutions of higher education that the sex offender attends or works at, and—in the case of non-juvenile first-time offenders—the offender’s physical description and photograph.
42 Pa. C.S.A. § 9798.1 sets forth the affirmative duty of the Pennsylvania State Police to post sex offender registry records on the internet. The following information must be posted: name and all known aliases; year of birth; the street address, municipality, county and zip code of all residences, including, where applicable, the name of the prison or other place of confinement; the street address, municipality, county, zip code and name of any institution or location at which the person is enrolled as a student; the municipality, county and zip code of any employment location; a photograph of the offender, which shall be updated not less than annually; a physical description of the offender, including sex, height, weight, eye color, hair color and race; any identifying marks, including scars, birthmarks and tattoos; the license plate number and description of any vehicle owned or registered to the offender; whether the offender is currently compliant with registration requirements; whether the victim is a minor; a description of the offense or offenses which triggered the application of this subchapter; and the date of the offense and conviction, if available.
The information contained in the sexual offender database including the numeric risk level assigned to the sex offender is public information. Tex. Code Crim. Proc. Art. 62.005(b). However, information regarding the sex offender’s social security number or driver's license number, or any home, work, or cellular telephone number, information that would identify the victim of the offense for which the person is subject to registration, is not public. Id. The department is tasked with maintaining the database and must post any photograph of the person that is available.
Further, a local law enforcement authority shall release information deemed public to any person who requests the information from the authority. The authority may charge the person a fee not to exceed the amount reasonably necessary to cover the administrative costs associated with the authority's release of information to the person under this subsection. Id. at (d).
The Texas Code of Criminal Procedure requires juvenile sex offenders to provide “registration information” but this information is not public information and is restricted to use by law enforcement and criminal justice agencies, the Council on Sex Offender Treatment, and public or private institutions of higher education. Tex. Code Crim. Proc. Art. 62.352(b)(2).
Information regarding sex offender registration is generally public. See Utah Code § 77-41-103(1)(b). However, GRAMA classifies such information as private to the extent that the information is both required by the registration provisions of Utah Code section 77-41-108 and expressly exempted from public disclosure under Utah Code section 77-41-103(1). Id. § 63G-2-302(o)(i)-(ii).
Vermont maintains a public, online version of the sex offender registry. 13 V.S.A. § 5411a; see also Vermont Crime Information Center, Sex Offender Registry, https://vcic.vermont.gov/sor. This online database includes information on all offenders convicted of the crimes delineated in 13 V.S.A. § 5411a, unless the crime was expunged from the online database pursuant to 13 V.S.A. § 5411(e). Certain employers are authorized by law to access even more expansive information relating to the sex offender registry. 13 V.S.A. § 5402 (detailing entities legally permitted to access information).
“[T]he Department of Corrections, and any authorized local law enforcement agency shall release Registry information concerning persons required to register under State law if the requestor can articulate a concern about the behavior of a specific person regarding the requestor’s personal safety or the safety of another, or the requestor has reason to believe that a specific person may be a registered sex offender and can articulate a concern regarding the requestor’s personal safety or the safety of another. However, the identity of a victim of an offense shall not be released.”
13 V.S.A. § 5411(b)(1). If an offender’s profile is included in the online offender database, the Department of Corrections shall, upon request, release Registry information relating to that sex offender. 13 V.S.A. § 5411(c)(1); but see 13 V.S.A. § 5411(e) (noting exception for certain offenders after 10 years since the last offense).