FBI Disclosure of Criminal History Record Information to the Florida Board of Bar Examiners ( 1979 )

January 22, 1979
79-7 MEMORANDUM OPINION FOR THE
DIRECTOR, FEDERAL BUREAU OF
INVESTIGATION
Federal Bureau of Investigation—Disclosure of
Criminal Record—Admission to the Bar
This responds to your request for our opinion whether the Florida
Board o f Bar Examiners is authorized to receive criminal history record in­
formation maintained by the Federal Bureau o f Investigation (FBI) for the
purpose o f investigating the character o f applicants for admission to the
bar. We understand that there is no Florida statute that authorizes
criminal history record exchanges between the Board and the FBI. The
Board is established by rule o f the Florida Supreme C ourt under that
court’s inherent judicial authority to regulate admission to the b ar.' By
rule o f the court, the Board is authorized to investigate the character and
fitness o f applicants for admission.2 The B oard’s own rules require that
applicants submit fingerprints.3 On the basis o f these facts, we concur in
your conclusion that neither § 201 o f the Act o f October 25, 1972, 86 Stat.
1115, 28 U.S.C. § 534 note, nor 28 CFR § 20.33(a)(1), authorizes the FBI
to provide the Board the criminal history record information for the pur­
pose o f determining the fitness o f bar applicants.
Under 28 CFR § 20.33(a)(1), the FBI may make criminal record history
information available to “ criminal justice agencies for criminal justice
purposes.” The Commissioner o f the Florida Department o f Law En­
forcement argues that the Board o f Bar Examiners is a “ criminal justice
agency,” as defined by 28 CFR § 20.3(c), and is therefore authorized to
receive that inform ation. We need not decide this point. The “ administra­
tion o f criminal justice,” as defined by 28 CFR § 20.3(d), includes only
1 See Fla. Stat. A nn. § 454.021; Rules o f the Florida Supreme C ourt Relating to Admis­
sions to the Bar, A rt. 1, § 2; see generally, Barr v. Watts, 70 So. 2d 347, 350 (1953).
2 Rules o f the Florida Supreme C ourt Relating to Admissions to the Bar, A rt. 2, § 12.
‘ Rules o f the Florida Board o f Examiners, Rule II, §10(4).
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the detection and prosecution o f crimes, the administration o f pretrial
release, and the operation o f a correctional system. It does not include the
licensing o f attorneys to practice law. See generally, Menard v. Mitchell,
328 F. Supp. 718, 726-27 (D .D .C . 1971, a ff’d in part, rev’d in part on
other grounds sub nom. Menard v. Saxbe, 498 F. (2d) 1017 (D.C. Cir.
1974)). Regardless o f whether the Board is a criminal justice agency, 28
CFR § 20.33(a)(1) does not authorize it to receive criminal record history
information for the purpose o f determining the character o f applicants to
the bar.
Under § 201 o f the Act, as implemented by 28 CFR § 20.33(a)(3), the
FBI may provide criminal record history information to a State for
employment or licensing purposes only if “ authorized by State statute.”
Section 201 was enacted in response to the Menard decision. It held that
the FBI lacked authority under then existing law to disseminate criminal
history inform ation outside the Federal Government for employment or
licensing purposes. It also stated that statutes governing the dissemination
o f criminal history inform ation must be strictly construed to avoid serious
constitutional issues. The express restrictive language o f § 201, when read
in the light o f Menard, requires a narrow interpretation o f State authority
to receive criminal history inform ation from the FBI for employment or
licensing use.
Accordingly, this Office has construed § 201 to permit a State board of
bar examiners to obtain criminal history inform ation from the FBI only
when a statute expressly authorized it to fingerprint applicants or to ex­
change criminal history inform ation with other agencies. As your
memorandum points out, we have specifically concluded that court or ad­
ministrative rules based on general authority to regulate admission to the
bar do not meet the requirements o f § 201. The facts in this case are iden­
tical to those in our prior opinion on the subject.
The State has argued that the rules o f the Florida Supreme C ourt requir­
ing bar applicants to be fingerprinted are the full equivalent o f a statute
because that court has authority superior to the legislature in this area.
However, the Florida court has held that the legislature has “ concurrent”
power to regulate bar admissions. See, Barr v. Watts, 70 So.2d 347, 350
(1953). It is therefore questionable as a m atter o f Florida law whether the
legislature lacks power to enact a statute requiring fingerprinting. More
im portantly, the language o f § 201 is explicit. Had Congress wished to per­
mit dissemination authorized by judicial or administrative rule, it could
easily have done so by having the section read “ by law” instead o f “ by
statute.” In the light o f the Menard decision, this choice o f language must
be given effect.
M a r y C. L a w t o n
D eputy Assistant A ttorney General
Office o f Legal Counsel
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