“Ants under the refrigerator”
The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv. In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act. (See our recent 50-state survey of record-closing laws, with their intended effect.)
You probably are wondering, “What is she talking about, with a subject line like that?” The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders. I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others.
As you doubtlessly know, “criminal records” are not a single, monolithic document. Criminal record data about a single case exists in numerous databases. Public sources of criminal record information include court records, local law enforcement, state police or other “central repositories,” and FBI records. Criminal record information is also maintained in privately owned databases, consisting of information obtained from the public sources (most often court records). The majority of criminal background checks are done by the commercial background screeners, using the private databases.
The general idea of record sealing is to suppress the case from public view, so that employers, landlords and others who use background checks don’t make decisions based on these cases. For expungement or sealing of a case to be effective, then, it must be removed at least from all of the sources used in background screening. That is usually not too difficult in the public record sources (except possibly FBI records – which could be a subject for another post). But the same is not true of the private databases. The private data brokers often take the position that they report expunged cases because they don’t know that cases in their data have been expunged.
The result? Expunged or sealed cases are often still reported by commercial screeners. Compromising the whole idea of expungement (and public policies to expand it). And violating the Fair Credit Reporting Act (the FCRA). And resulting in the “ants under the refrigerator” – you think you managed to expunge the case everywhere, but then here comes a background check with the expunged case unexpectedly reported from a source that missed the order.
This is a difficult problem. But do not despair. There are things that can be done to improve the situation for your clients. Here are a few.
- Advocate for your state’s public record sources that sell their data to private companies to provide a list of expunged cases to be removed from the private data. This is an elegantly simple solution, pioneered by the Pennsylvania courts, that usually works.
- Take affirmative steps to provide the expungement or sealing orders to the commercial vendors. One way of doing that is to register with the Expungement Clearinghouse (www.expungementclearinghouse.org).
- Use the FCRA. Tell your clients to return if the expunged case is reported. File a dispute of a background check reporting a case that should have been removed. Even better, sue the company!
We must demand better of the commercial screeners that make their money from using public data, but aren’t adequately motivated to remove expunged or sealed cases! Of course, if they were double-checking their results as they should under the FCRA (my opinion, which only some of the screeners share), they would learn that a case was expunged, and they would not potentially cost our clients jobs.
Read Sharon Dietrich’s full article on these issues, which appeared in the Winter 2016 edition of Criminal Justice magazine, here.
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