STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6192

November 9, 1983

SOCIAL SERVICES, DEPARTMENT OF:

Access to state and federal law enforcement criminal history information

STATE POLICE LAW ENFORCEMENT INFORMATION NETWORK (LEIN):

Access by criminal justice agency to LEIN

The office of inspector general of the Department of Social Services may receive information from state and federal law enforcement criminal history information systems.

Licensing and child protective services programs of the Department of Social Services are not criminal justice agency programs eligible to receive such information.

Agnes M. Mansour

Director

Department of Social Services

300 South Capitol Avenue

Lansing, Michigan

Your predecessor requested my opinion whether the office of inspector general, the bureau of regulatory services, and the office of children and youth services of the Department of Social Services may have access to the Law Enforcement Information Network (LEIN) and the National Crime Information Center Computerized Criminal History (CCH) files.

OAG, 1979-1980, No 5662, p 652 (March 4, 1980), reviewed the criteria imposed by the Omnibus Crime Control and Safe Street Act of 1968, 82 Stat 197 (1968); 42 USC 3701 et seq, and 28 CFR 20.3(c) and (d) and 28 CFR 20.21(f)(4)(v), for the eligibility of public agencies to have access to LEIN, and concluded that criminal justice agencies only may have access to LEIN. 28 CFR 20.33 provides that criminal history record information contained in any federal Department of Justice criminal history information system will be made available to criminal justice agencies for criminal justice purposes.

It is noted that 28 CFR, Part 20, was amended on June 13, 1980 to add the following language to the end of 28 CFR 20.3(c):

45 Fed. Reg. 40,114, in announcing the final rule change, noted:

However, this amendment to 28 CFR, Part 20, when published therein, appears as the last sentence of 28 CFR 20.3(b) and (d), but not in (c). Nevertheless, the intent is still the same to include state and federal offices of inspectors general as criminal justice agencies eligible for access to LEIN.

Administrative Code 1981 AACS, R 28.5101(i), contains a comparable definition of a criminal justice agency, although it does not, unlike 28 CFR 20.3, expressly include a state office of inspector general.

For the fiscal year 1983-1984, the Legislature, in 1983 PA 171, Sec. 1, provides an appropriation of $2,380,600 to the Department of Social Services for the inspector general. The prior appropriation act, 1982 PA 257, noted: 'The inspector general investigates all cases of alleged fraud.'

It is abundantly clear that the office of inspector general of the Department of Social Services is a criminal justice agency within the contemplation of 28 CFR 20.3 and 1981 AACS, R 28.5101(i), and may have access to LEIN and CCH.

In 1983 PA 171, Sec. 1, the Legislature has appropriated $5,613,700 to the Department of Social Services for bureau of regulatory services purposes. The prior appropriation act, 1982 PA 257, Sec. 1 stated:

The bureau of regulatory services, in exercising its licensing and regulation functions, is charged with administrative duties in these areas. It is not a part of the criminal justice administration of this state and the bureau may not have access to LEIN or CCH.

Finally, in regard to the child protective services program of the office of children and youth services component of the Department of Social Services, the Legislature, in making appropriations for this unit in the prior appropriation act, 1982 PA 257, Sec. 1, noted that it 'develops, implements and evaluates children's services conducted, administered, or purchased by the department. This unit provides funds for central office staff, the operation of community centers, runaway and status offender programs, including delinquency and protective services contracts and demonstration projects.'

The Legislature created this office within the department by means of 1939 PA 280, Sec. 114, as amended by 1978 PA 87; MCLA 400.114; MSA 16.490(24). It administers the Child Protection Law, 1975 PA 238; MCLA 722.621 et seq; MSA 25.248(1) et seq, which provides for the protection of children who are abused and neglected. While personnel of the office of children and youth services of the department work closely with law enforcement officials and with the courts, 1975 PA 238, supra, does not empower such office to function as a criminal justice agency. It must follow that the office of children and youth services of the Department of Social Services may not have access to LEIN and CCH.

In summary, it is my opinion that the office of inspector general of the Department of Social Services is a criminal justice agency for purposes of and access to LEIN and CCH. It is my further opinion that the bureau of regulatory services and the office of children and youth services of the Department of Social Services are not criminal justice agencies for the purposes of LEIN and CCH and are barred from access to LEIN and CCH.

Frank J. Kelley