§ 37-2-81. Authority to conduct state and national background checks for vendors with access to federal tax information. (a) Definitions. As used in this section, the following terms shall be defined as follows:

(1) "Access," shall mean the direct and indirect use, contact, handling or viewing of federal tax information, as defined herein, in paper or electronic form, regardless of the frequency, likelihood or extent of such access or whether the access is intentional or inadvertent.

(2) "Agency" or "state agency," shall mean a Rhode Island state department within the executive branch.

(3) "Agency head" shall mean the director or designee of a state department for which the vendor is providing services.

(4) "Division" shall mean the division of purchases.

(5) "Federal tax information" or "FTI" shall mean:

(i) Federal tax returns or information created or derived from federal tax returns that is in an agency's possession or control, which is covered by the confidentiality protections of the Internal Revenue Code and subject to 26 U.S.C. section 6103(p)(4) safeguarding requirements, including oversight by the Internal Revenue Service ("IRS"); and is received directly from the IRS or obtained through an authorized secondary source, such as the Social Security Administration (SSA), Federal Office of Child Support Enforcement (OCSE), Bureau of the Fiscal Service (BFS), Centers for Medicare and Medicaid Services (CMS), or another entity acting on behalf of the IRS pursuant to an Internal Revenue Code ("IRC") 6103(p)(2)(B) agreement; and

(ii) Shall not include federal tax returns or information created or derived from federal tax returns received directly from taxpayers or other third-parties.

(6) "Vendor" shall mean any individual, firm, corporation, partnership or other corporate entity, including employees, subcontractors, who are performing services for the state and has access, as defined herein, to FTI.

(b) The agency head shall require a vendor to complete a state and national fingerprint-based criminal background check, as authorized by Public Law 92-544, to determine the suitability of a vendor's employees and subcontractors if the services to the state require or include, or may require or include, access to FTI. This requirement for a vendor shall be incorporated by reference into the vendor's agreement with the state. No new vendor employee or subcontractor who has or may have access to FTI shall perform services for the State until the person is deemed suitable by the agency head. Existing vendor employees and subcontractors, as of September 1, 2019, shall complete the background check requirement within a reasonable time as approved by the agency head.

(c) The national fingerprint-based criminal background check shall be facilitated through the Rhode Island office of the attorney general or other law enforcement authorized agency, using the same criteria established under § 36-3-16 for applicants and current state employees. The information shall be forwarded to the Federal Bureau of Investigation (FBI) for a national criminal history check, according to the policies, procedures, and/or regulations established by the office of the attorney general or other law enforcement authorized agency. The office of the attorney general or other law enforcement authorized agency may disseminate the results of the national criminal background checks to the Department of Administration and/or the agency head where the services are being provided.

(d) Reciprocity. Nothing herein shall prevent the agency head, at his or her discretion, from accepting a recent national fingerprint-based criminal background check for a vendor related to FTI access conducted in another suitable jurisdiction.

(e) The agency head may receive criminal offender record information to the extent required by federal law and the results of checks of national criminal history information databases under Public Law 92-544. Upon receipt of the results of state and national criminal background checks, the agency head shall treat the information as non-public and exempt from disclosure in accordance with the Rhode Island access to public records act, § 38-2-2(4)(B). Information acquired by any agency in the background check process pursuant to this section shall be used solely for the purpose of making a determination as to the suitability of a vendor in a position which requires or includes, or may require or include, access to FTI.

(f) The state shall not be responsible for any fees charged through the office attorney general, other law enforcement authorized agency or other jurisdiction to conduct the state and national background check for vendor.

(g) A vendor who refuses to comply with the fingerprint-based background check requirement shall be considered unsuitable for services requiring or involving, or which may require or involve, access to FTI. Refusal to comply by the vendor may result in termination of the contract with the State and/or other procurement sanctions if appropriate. Nothing herein shall prevent the vendor from replacing an employee or subcontractor who refuses to comply with this requirement, subject to written approval by the agency head.

(h) Upon receipt of the results of a state and national criminal background check for the vendor the agency head shall review the results and determine the suitability of the person with regard to service in a position requiring or involving, or which may require or involve, access to FTI. In making a determination of suitability, the agency head may consider mitigating factors relevant to the vendor's scope of work and the nature of any disqualifying offense. Unsuitability of a vendor may result in termination of the contract with the state and/or a requirement that the vendor replace the employee or subcontractor, with a suitable person, subject to written approval by the agency head.

(i) If the office of the attorney general or other law enforcement authorized agency receives criminal record information from the state or national fingerprint-based criminal background checks that includes no disposition or is otherwise incomplete, the subject person shall be responsible for resolving any issues in other jurisdictions causing an incomplete background check. The vendor shall immediately notify the state in writing the name and circumstances of any employees or subcontractors who have received an incomplete background check. Failure to establish suitability of a vendor employee, subcontractor or other agent may result in termination of the contract with the state and/or a requirement that the vendor replace the employee, subcontractor or other agent with a suitable person, subject to written approval by the agency head.

(j) Nothing in this section shall limit or preclude an agency's right to carry on a background investigation of a vendor using other authorized means.

(k) The department of administration is hereby authorized to promulgate and adopt regulations necessary to carry out this section.

(l) The judicial branch is hereby authorized to comply with the provisions herein related to vendors working on behalf of the judiciary receiving access to FTI.

History of Section. (P.L. 2019, ch. 88, art. 3, § 7.)