Ҥ 3560. Automatic sealing of certain records

“(a) Definitions.—In this section—

“(1) the term ‘covered individual’ means an individual who—

“(A) is not a sex offender;

“(B) (i) has been arrested for a Federal offense; or

“(ii) has been convicted of an offense under section 404 of the Controlled Substances Act (21 U.S.C. 844) or any Federal nonviolent offense involving marijuana; and

“(C) in the case of a conviction described in subparagraph (B)(ii), has fulfilled each requirement of the sentence for the offense, including—

“(i) completing each term of imprisonment, probation, or supervised release; and

“(ii) satisfying each condition of imprisonment, probation, or supervised release;

“(2) the term ‘nonviolent offense’ means an offense that is not a crime of violence, as defined in subsections (a) and (c) of section 3156; and

“(3) the term ‘sex offender’ has the meaning given the term in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911).

“(b) Automatic sealing for certain arrests and nonviolent offenses.—

“(1) IN GENERAL.—At the time of sentencing of a covered individual for a conviction pursuant to section 404 of the Controlled Substances Act (21 U.S.C. 844) or of any Federal nonviolent offense involving marijuana, the court shall enter an order that each record and portion thereof that relates to the offense shall be sealed automatically on the date that is one year after the covered individual fulfills each requirement of the sentence, except that such record shall not be sealed if the individual has been convicted of a subsequent criminal offense.

“(2) ACQUITTAL; DETERMINATION NOT TO FILE CHARGES.—

“(A) ACQUITTAL.—60 days after the date on which a covered individual is acquitted, exonerated, or otherwise subject to a judgment which did not result in a conviction for a Federal offense, each record or portion thereof that relates to the Federal offense shall be sealed automatically.

“(B) DETERMINATION NOT TO FILE CHARGES.—

“(i) IN GENERAL.—If a covered individual is arrested for a Federal offense and the Government does not file charges against the covered individual in relation to the Federal offense before the date that is 180 days after the date on which the arrest was made, each record or portion thereof that relates to the arrest and Federal offense shall be sealed automatically on such date.

“(ii) UNSEALING FOR FILING OF CHARGES.—At the request of the Government, a court may unseal a record sealed under clause (i) in order for the Government to file charges against the covered individual in relation to the Federal offense described in clause (i).

“(iii) LIMITATION.—If a record is unsealed under clause (ii), the record may only be resealed in accordance with subparagraph (A), paragraph (1), or paragraph (2).

“(c) Notice of automatic sealing.—Not later than 60 days after an individual is arrested for a Federal offense, the Attorney General shall, in writing, inform the individual of the automatic sealing of records and the effect of such sealing under this section.

“(d) Effect of sealing order.—

“(1) PROTECTION FROM ACCESS.—Except as provided in paragraph (3), a record that has been sealed under subsection (b) shall not be accessible to any person.

“(2) PROTECTION FROM PERJURY LAWS.—

“(A) IN GENERAL.—Except as provided in subparagraph (B), a covered individual with respect to whom a record has been sealed under subsection (b) shall not be required to disclose such information, and shall not be subject to prosecution under any civil or criminal provision of Federal or State law relating to perjury, false swearing, or making a false statement, including under section 1001, 1621, 1622, or 1623, for failing to recite or acknowledge any information that has been sealed with respect to the offense, or respond to any inquiry made of the covered individual, relating to the protected information.

“(B) EXCEPTION.—A covered individual shall disclose information contained in a record that has been sealed under subsection (b)—

“(i) when testifying in court;

“(ii) in the course of questioning by a law enforcement officer in connection with a subsequent criminal investigation; or

“(iii) in connection with employment described in subclause (I) or (II) of paragraph (3)(A)(ii) that the individual is seeking.

“(3) BACKGROUND CHECKS.—Except as provided in paragraph (4), a sealed record of a covered individual shall not be included in any background check conducted on the covered individual.

“(4) LAW ENFORCEMENT AND COURT EXCEPTION.—

“(A) ACCESS.—An officer or employee of a law enforcement agency or a court may access a sealed record of a covered individual in the possession of the agency or court, or another law enforcement agency or court, solely—

“(i) for investigatory or prosecutorial purposes; or

“(ii) for a background check that relates to—

“(I) employment with a law enforcement agency; or

“(II) any position that a Federal agency designates as a—

“(aa) national security position; or

“(bb) high-risk, public trust position.

“(B) DISCLOSURE.—An officer or employee of a law enforcement agency or a court may disclose information contained in a sealed record only in order to carry out the purposes described in subparagraph (A).

“(e) Penalty for unauthorized disclosure.—

“(1) IN GENERAL.—Whoever knowingly accesses or discloses information contained in a sealed record in a manner that is prohibited under this section, shall be fined under this title, imprisoned for not more than 1 year, or both.

“(2) RULE OF CONSTRUCTION.—Nothing in this subsection prevents a covered individual or an individual who was the victim of an offense from accessing or disclosing information contained in a sealed record.

“(f) Rulemaking.—The Attorney General shall, by rule, establish a process to ensure that any record in the possession of a Federal agency required to be sealed under this section, is automatically sealed in accordance with this section.

“(g) Applicability.—This section shall apply to an arrest or conviction that occurred or was entered before, on, or after the date of enactment of this section. Not later than 2 years after the date of the enactment of this section, the Attorney General shall ensure that any record related to an arrest or conviction that occurred or was entered prior to the automatic sealing of such a record, which record is required to be sealed under this section, is so sealed.

Ҥ 3561. Sealing of certain records upon petition

“(a) Definitions.—In this section—

“(1) the term ‘covered nonviolent offense’ means a Federal criminal offense that is not—

“(A) a crime of violence (as defined in subsections (a) and (c) of section 3156); or

“(B) a sex offense (as that term is defined in section 111 of the Sex Offender Registration and Notification Act (42 U.S.C. 16911));

“(2) the term ‘eligible individual’ means an individual who—

“(A) has been convicted of a covered nonviolent offense;

“(B) has fulfilled each requirement of the sentence for the covered nonviolent offense, including—

“(i) completing each term of imprisonment, probation, or supervised release; and

“(ii) satisfying each condition of imprisonment, probation, or supervised release;

“(C) has not been convicted of more than 2 felonies that are covered nonviolent offenses, including any such convictions that have been sealed (except that for purposes of this subparagraph, 2 or more felony convictions that are covered nonviolent offenses arising out of the same act, or acts committed at the same time, shall be treated as 1 felony conviction); and

“(D) has not been convicted of any felony that is not a covered nonviolent offense;

“(3) the term ‘petitioner’ means an individual who files a sealing petition;

“(4) the term ‘protected information’, with respect to a covered nonviolent offense, means any reference to—

“(A) an arrest, conviction, or sentence of an individual for the offense;

“(B) the institution of criminal proceedings against an individual for the offense; or

“(C) the result of criminal proceedings described in subparagraph (B);

“(5) the term ‘sealing hearing’ means a hearing held under subsection (c)(2); and

“(6) the term ‘sealing petition’ means a petition for a sealing order filed under subsection (b).

“(b) Right To file sealing petition.—

“(1) IN GENERAL.—On and after the date that is 1 year after the date on which the eligible individual has fulfilled each requirement described in subsection (a)(2)(B), an eligible individual may file a petition for a sealing order with respect to a covered nonviolent offense in a district court of the United States.

“(2) NOTICE OF OPPORTUNITY TO FILE PETITION.—

“(A) IN GENERAL.—If an individual is convicted of a covered nonviolent offense and will potentially be eligible to file a sealing petition with respect to the offense upon fulfilling each requirement of the sentence for the offense as described in subsection (a)(2)(B), the court in which the individual is convicted shall, in writing, inform the individual, on each date described in subparagraph (B), of—

“(i) that potential eligibility;

“(ii) the necessary procedures for filing the sealing petition; and

“(iii) the benefits of sealing a record.

“(B) DATES.—The dates described in this subparagraph are—

“(i) the date on which the individual is convicted; and

“(ii) the date on which the individual has completed every term of imprisonment, probation, or supervised release relating to the offense.

“(c) Procedures.—

“(1) NOTIFICATION TO PROSECUTOR.—If an individual files a petition under subsection (b), the district court in which the petition is filed shall provide notice of the petition—

“(A) to the office of the United States attorney that prosecuted the petitioner for the offense; and

“(B) upon the request of the petitioner, to any other individual that the petitioner determines may testify as to the—

“(i) conduct of the petitioner since the date of the offense; or

“(ii) reasons that the sealing order should be entered.

“(2) HEARING.—

“(A) IN GENERAL.—Not later than 180 days after the date on which an individual files a sealing petition, the district court shall—

“(i) except as provided in subparagraph (D), conduct a hearing in accordance with subparagraph (B); and

“(ii) determine whether to enter a sealing order for the individual in accordance with paragraph (3).

“(B) OPPORTUNITY TO TESTIFY AND OFFER EVIDENCE.—

“(i) PETITIONER.—The petitioner may testify or offer evidence at the sealing hearing in support of sealing.

“(ii) PROSECUTOR.—The office of a United States attorney that receives notice under paragraph (1)(A) may send a representative to testify or offer evidence at the sealing hearing in support of or against sealing.

“(iii) OTHER INDIVIDUALS.—An individual who receives notice under paragraph (1)(B) may testify or offer evidence at the sealing hearing as to the issues described in clauses (i) and (ii) of that paragraph.

“(C) MAGISTRATE JUDGES.—A magistrate judge may preside over a hearing under this paragraph.

“(D) WAIVER OF HEARING.—If the petitioner and the United States attorney that receives notice under paragraph (1)(A) so agree, the court shall make a determination under paragraph (3) without a hearing.

“(3) BASIS FOR DECISION.—

“(A) IN GENERAL.—In determining whether to enter a sealing order with respect to protected information relating to a covered nonviolent offense, the court—

“(i) shall consider—

“(I) the petition and any documents in the possession of the court; and

“(II) all the evidence and testimony presented at the sealing hearing, if such a hearing is conducted;

“(ii) may not consider any non-Federal nonviolent crimes for which the petitioner has been arrested or proceeded against, or of which the petitioner has been convicted; and

“(iii) shall balance—

“(I) (aa) the interest of public knowledge and safety; and

“(bb) the legitimate interest, if any, of the Government in maintaining the accessibility of the protected information, including any potential impact of sealing the protected information on Federal licensure, permit, or employment restrictions; against

“(II) (aa) the conduct and demonstrated desire of the petitioner to be rehabilitated and positively contribute to the community; and

“(bb) the interest of the petitioner in having the protected information sealed, including the harm of the protected information to the ability of the petitioner to secure and maintain employment.

“(B) BURDEN ON GOVERNMENT.—The burden shall be on the Government to show that the interests under subclause (I) of subparagraph (A)(iii) outweigh the interests of the petitioner under subclause (II) of that subparagraph.

“(4) WAITING PERIOD AFTER DENIAL.—If the district court denies a sealing petition, the petitioner may not file a new sealing petition with respect to the same offense until the date that is 2 years after the date of the denial.

“(5) UNIVERSAL FORM.—The Director of the Administrative Office of the United States Courts shall create a universal form, available over the Internet and in paper form, that an individual may use to file a sealing petition.

“(6) FEE WAIVER.—The Director of the Administrative Office of the United States Courts shall by regulation establish a minimally burdensome process under which indigent petitioners may obtain a waiver of any fee for filing a sealing petition.

“(7) EFFECT OF SEALING.—Subsections (d) and (e) of section 3560 shall apply to any record that is sealed under this section.

“(8) REPORTING.—Not later than 2 years after the date of enactment of this section, and each year thereafter, each district court of the United States shall issue a public report that—

“(A) describes—

“(i) the number of sealing petitions granted and denied under this section; and

“(ii) the number of instances in which the office of a United States attorney supported or opposed a sealing petition;

“(B) includes any supporting data that the court determines relevant and that does not name any petitioner; and

“(C) disaggregates all relevant data by race, ethnicity, gender, and the nature of the offense.

“(9) PUBLIC DEFENDER ELIGIBILITY.—

“(A) IN GENERAL.—The district court may, in its discretion, appoint counsel in accordance with the plan of the district court in operation under section 3006A to represent a petitioner for purposes of this section.

“(B) CONSIDERATIONS.—In making a determination whether to appoint counsel under subparagraph (A), the court shall consider—

“(i) the anticipated complexity of the sealing hearing, including the number and type of witnesses called to advocate against the sealing of the protected information of the petitioner; and

“(ii) the potential for adverse testimony by a victim or a representative of the office of the United States attorney.

“(10) RULE OF CONSTRUCTION.—Nothing in this section may be construed to require a covered individual (as such term is defined in section 3560) to submit a sealing petition with respect to records required to be automatically sealed under section 3560.”.