Survey of law enforcement access to sealed non-conviction records
As part of our non-conviction records project, we have researched what state laws provide on law enforcement agency access to and use of sealed or expunged non-conviction records for routine law enforcement purposes. This issue is particularly salient in light of an ongoing lawsuit against the New York Police Department in which a New York state court found that the NYPD’s routine use and disclosure of sealed arrest information—without securing a court order—violates New York’s sealing statute. Looking across the country, we found an almost even split on this issue: exactly half the states either do not allow law enforcement access to sealed records for routine law enforcement activity, or condition law enforcement access on a court order (as in New York) or formal written request. Specifically, we identified 25 states and two territories that appear to limit law enforcement agency access to and/or use of non-conviction records, either absolutely (12 states and two territories), or without a court order (11 states) or formal written request to the state custodian of records for a specified purpose (two states). The other 25 states, plus two territories, the District of Columbia and the Federal system, exempt law enforcement agencies generally from sealing or expungement laws, or in a few cases have no law authorizing sealing of non-conviction records (American Samoa, the Federal system, and Wisconsin). Note a couple of things about the way we conducted this research. First, our results apply only to records that do not result in a conviction (though in many states the answer is the same for records that do), and we classified them according to their apparent application to law enforcement operations (some states allow law enforcement agency access for employment and certification purposes). There are a handful of states that bar law enforcement agency access but allow access by prosecutors, both generally (NC) and in specific situations (AR, KS), and we classified these as barring law enforcement access, because the possibility of police access to records through prosecutors is not the kind of unregulated direct access at issue in the New York litigation. The second thing to note is that our results say nothing about how easy or hard it is to get a non-conviction record sealed or expunged, or who is eligible for this relief. For example, of the states whose laws bar access, New York offers sealing of non-conviction records right at disposition as a routine matter, with the burden on the prosecutor to show why sealing isn’t appropriate (and it is a high bar). Other states in the “no access” or “court order” categories (e.g. Virginia, Kentucky, West Virginia) require a defendant to file a separate civil petition after an eligibility waiting period, disqualify based on prior record, require a hearing at which the petitioner has the burden of showing why relief should be granted, and even impose civil filing fees. Our classification tells a bit more about the scope or effect of sealing/expungement relief in each state more generally, since states that “delete” or “erase” non-conviction records are more likely to specifically bar law enforcement agency access than states that merely limit public access to the record. But even states that provide some public access (e.g., by licensing boards) may also bar access for law enforcement functions (e.g., KS). (Further information about the effect of sealing or expungement relief in each state may be found in the Restoration of Rights Project profiles.) Our state-by-state research follows. I. NO ACCESS FOR LAW ENFORCEMENT PURPOSES OR ACCESS ONLY WITH COURT ORDER OR FORMAL REQUEST (25 states, 2 territories) A. No authority for law enforcement to access sealed or expunged non-conviction records for regular law enforcement purposes (12 states, 2 territories): Arkansas: Sealed non-conviction records accessible upon written request from a “criminal justice agency” only for employment with the agency, or a background check for polygraph or security license. May also be disclosed to a court (“upon a showing of a subsequent adjudication of guilt” or “another good reason shown to be in the interests of justice”); to “a prosecuting attorney” (if accompanied by a statement that “the request is being made for a criminal justice purpose”); and to agencies engaged in licensing of health care professionals. Ark. Code Ann. § 16-90-1416. Connecticut: “Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken.” Law does not provide for law enforcement access to erased records. Conn. Gen. Stat. § 54-142a(a); See also 54-142c(a). Indiana: Does not allow information about non-conviction records that have been expunged and sealed to be “placed or retained in any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency.” Ind. Code § 35-38-9-1(h). While “this chapter does not require any change or alteration in: (1) any internal record made by a law enforcement agency at the time of the arrest and not intended for release to the public,” § 35-38-9-1(f), we have been advised by the Marion County prosecutor’s office that the state police may destroy expunged and sealed records that did not lead to a conviction. While the law is unclear, we nonetheless place Indiana in the “no access” category on the strength of the reasonably clear directive of § 35-38-9-1(h). Kansas: “Whenever a person’s arrest records have been expunged as provided in this section, the custodian of the records of arrest, incarceration due to arrest or court proceedings related to the arrest, shall not disclose the arrest or any information related to the arrest, except as directed by the order of expungement or when requested by the person whose arrest record was expunged.” Kan. Stat. Ann. § 22-2410(h). § 22-2410(c) lists a variety of employment and licensing scenarios in which disclosure may be “directed by the order of expungement” as well as a catch-all “in any other circumstances which the court deems appropriate.” Disclosure also authorized to the state bureau of investigation for the central repository and the national instant criminal background check system for firearms. See also §§ 21-6614(1)(6), (15) (expunged conviction records may be disclosed if requested by “a prosecutor, and such request is accompanied by a statement that the request is being made in conjunction with a prosecution of an offense that requires a prior conviction as one of the elements of such offense” or “a law enforcement agency and the request is accompanied by a statement that the request is being made to aid in determining eligibility for employment as a law enforcement officer.”). Kentucky: “After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter.” Ky. Rev. Stat. Ann. § 431.076(6). Michigan: Michigan courts are authorized to seal the record of any case under Michigan Court Rule 8.119(I) for “good cause” shown, after considering the interests of the parties and the public. Under Mich. Comp. Laws 780.623, records sealed under MCR 8.119(I) may be made available to courts and to law enforcement agencies only for specific purposes, including licensing and employment, but not for routine investigative or enforcement functions. Arrest records are expunged or destroyed if: (1) arrest and release without charges; (2) finding of not guilty; (3) nolle prosequi; or (4) charges dismissed before trial. Mich. Comp. Laws §§ 28.243(7), (8), (10). It does not appear that such records are subsequently accessible by law enforcement. See id. Mississippi: “Upon entering an order of expunction under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender.” Miss. Code Ann. § 99-19-71(3). “The order of expunction shall not preclude a district attorney’s office from retaining a nonpublic record thereof for law enforcement purposes only.” Id. North Carolina: Under North Carolina law, expunged records are “deleted,” but the Administrative Office of the Courts maintains a confidential file on those records and makes them available for certain limited specified purposes. N.C. Gen. Stat. § 15A-151(a). While some expunged conviction records may be available to law enforcement for purposes of employment and certification, expunged non-conviction records may not be disclosed to law enforcement agencies under any circumstances. Records of dismissed charges (but not acquittals) may be disclosed to prosecutors under § 15A-151.5. Puerto Rico: Puerto Rico Police Department maintains records of convictions and open cases in a “Criminal Record Certificate” containing record of convictions and open cases. P.R. Laws Ann. tit. 34, § 1725a. Convictions may be “eliminated” upon motion from the certificate after a waiting period. Cases that do not result in conviction appear not to be maintained. South Carolina: If charges are dismissed or the person is found not guilty, all records “must be destroyed and no evidence of the record pertaining to the charge . . . may be retained by any municipal, county or state law enforcement agency.” S.C. Code Ann. § 17-1-40(B)(1). As amended in 2016, this section provides that records may be kept by law enforcement and prosecution agencies for three years and 120 days, or indefinitely in case of an on-going investigation, before destruction for administrative purposes. “The information is not a public document and is exempt from disclosure, except by court order.” The law does not specify what if any use may be made of these records in the period for which they remain available to law enforcement, but we include it in this category because of the evident intent of the more general provision. Texas: Pursuant to the expunction procedure set forth in 55.02, § 3(a), the court shall order “any state agency that sent information concerning the arrest to a central federal depository to request the depository to return all records and files subject to the order of expunction;” once expunged, the law prohibits the “release, maintenance, dissemination, or use of the expunged records and files for any purpose.” Tex. Code Crim. Proc. art. 55.03(1). Vermont: “Upon entry of an expungement order, the order shall be legally effective immediately and the person whose record is expunged shall be treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense. The court shall issue an order to expunge all records and files related to the arrest, citation, investigation, charge, adjudication of guilt, criminal proceedings, and probation related to the sentence . . . . The court shall provide notice of the expungement to the respondent, Vermont Crime Information Center (VCIC), the arresting agency, and any other entity that may have a record related to the order to expunge.” 13 V.S.A. § 7606(a). Virginia: “If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge.” Va. Code Ann. § 19.2-392.2. Virgin Islands: Expungement means that a person will be treated “as not having been or arrested except for the keeping of confidentiality records” [sic]. Court may order the records disclosed to a court in connection with sentencing, or “to an agency of the territorial or federal government that is considering the person for a position.” 5 V.I. Code §§ 3738, 3739. B. Court order required for law enforcement access to sealed or expunged records (11 states, including New York): Idaho requires a court order for disclosure of sealed court records, I.C.A.R. 32(i); no provision appears to authorize access to expunged criminal history records. Maryland only allows access to expunged records with a court order, after notice, a hearing, and the showing of good cause; or an ex parte order, on a verified petition filed by a State’s Attorney alleging that the record is needed by law enforcement for a pending criminal investigation and “the investigation will be jeopardized or life or property will be endangered without immediate access to the expunged record.” Md. Code Ann., Crim. Proc. § 10-108. Minnesota: When a criminal justice agency seeks access to a record that was sealed under section 02, subdivision 3, paragraph (a), clause (1), after an acquittal or a court order dismissing for lack of probable cause, for purposes of a criminal investigation, prosecution, or sentencing, the requesting agency must obtain an ex parte court order after stating a good-faith basis to believe that opening the record may lead to relevant information. Minn. Stat. § 609A.03(2). An expunged record of a conviction may be opened for purposes of evaluating a prospective employee in a criminal justice agency without a court order. § 609A.03(2). Montana: Criminal courts are prohibited from disseminating records made confident by law, under Mont. Code Ann. § 44-5-303(1) (“dissemination of confidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure”). Nevada: The court may order sealed all records of the arrest and of the proceedings leading to the acquittal, declination or dismissal which are in the custody of any agency of criminal justice or any public or private company, agency, official or other custodian of records in the State of Nevada. Nev. Rev. Stat. § 179.255. If a person has been arrested, the charges have been dismissed and the records of the arrest have been sealed, the court may order the inspection of the records by a prosecuting attorney upon a showing that as a result of newly discovered evidence, the person has been arrested for the same or a similar offense and that there is sufficient evidence reasonably to conclude that the person will stand trial for the offense. § 179.295. New Jersey: Expunged records shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a presentence report or for purpose of sentencing. N.J. Stat. Ann. § 2C:52-21. Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. § 2C:52-19. New York: Courts, prosecutors, and law enforcement agencies must “seal” records when a case is terminated in a person’s favor or results in a non-criminal violation. A “sealed” record “shall . . . not [be] made available to any person or public or private agency,” without a court order. The sealing requirement applies to “all official records and papers . . . relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.” In addition, the statute requires that photographs and fingerprints be destroyed or returned to the formerly accused. N.Y. Crim. Proc. Law §§ 160.50 and 160.55. Oregon: Upon motion of any prosecutor or defendant in a case involving records sealed under this section, supported by affidavit showing good cause, the court with jurisdiction may order the reopening and disclosure of any records sealed under this section for the limited purpose of assisting the investigation of the movant. However, such an order has no other effect on the orders setting aside the conviction or the arrest, citation or charge record. ORS 137.225(11) Utah: “The bureau shall keep, index, and maintain all expunged records of arrests and convictions . . . . Employees of the bureau may not divulge any information contained in its index to any person or agency without a court order unless specifically authorized by statute . . . . If, after obtaining an expungement, the petitioner is charged with a felony, the state may petition the court to open the expunged records upon a showing of good cause . . . . For judicial sentencing, a court may order any records expunged under this chapter or Section 77-27-5.1 to be opened and admitted into evidence.” Utah Code Ann. § 77-40-109(1), (4), (5). Washington only allows access to sealed court records after entry of a court order allowing access or if the records have been ordered unsealed pursuant to Washington State Court General Rule 15, GR 15(e); criminal justice records subject to deletion are presumably destroyed and thus inaccessible. Wash. Rev. Code § 10.97.060. West Virginia allows inspection of the sealed records in the court’s possession “upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that the interests of justice will be served by granting the petition, it may be granted.” W. Va. Code § 61-11-25. C. Law enforcement must file formal written request and specify reasons (2 states): Louisiana: Expunged records may be made available to “a member of a law enforcement or criminal justice agency or prosecutor who shall request that information in writing, certifying that the request is for the purpose of investigating, prosecuting, or enforcing criminal law, for the purpose of any other statutorily defined law enforcement or administrative duties, or for the purposes of the requirements of sex offender registration and notification.” La. Code Crim. Proc. Ann. art. 973). Rhode Island: Any custodian of expunged records shall not disclose the existence of the records upon inquiry from any source unless the inquiry is that of any law enforcement agency “when the nature and character of the offense with which an individual is to be charged would be affected by virtue of the person having been previously convicted of the same offense.” “The custodian of any records which have been expunged pursuant to the provisions of this chapter shall only release or allow access to those records for the purposes specified in subsections (b) or (c) [above] of this section or by order of a court.” R.I. Gen. Laws §§ 12-1.3-4 (c) and (d). II. LAW ENFORCEMENT AGENCIES HAVE ACCESS TO SEALED NON-CONVICTION RECORDS OR NO SEALING IS AUTHORIZED (25 states, 2 territories, D.C. and the Federal system) American Samoa: Does not provide record-closing relief to non-conviction records. Alabama: Expunged non-conviction records accessible to criminal justice agencies “upon acknowledgement of an investigation or other criminal matter involving the person related to the expungement.” Ala. Code § 15-27-7(a). Alaska: Non-conviction criminal justice records that are not generally releasable to the public “may be provided to a criminal justice agency for a criminal justice activity.” Alaska Stat. 12.62.160(b)(4). Sealed records may be provided “when necessary to prevent imminent harm to a person…[, or] for a use authorized by statute or court order.” § 12.62.180. Arizona: Cleared records are not “expunged or hidden from law enforcement officials.” State v. Mohajerin, 226 Ariz. 103 (Ariz. Ct. App. 2010). California: A criminal justice agency may continue “in the regular course of its duties, to access, furnish to other criminal justice agencies, and use, including, but not limited to, by discussing in open court and in unsealed court filings, sealed arrests, sealed arrest records, sealed police investigative reports, sealed court records, and information relating to sealed arrests, to the same extent that would have been permitted for a criminal justice agency if the arrest had not been sealed.” Cal. Penal Code § 851.92(b)(6). Colorado: Sealed arrest records may be shared between criminal justice agencies. Col. Rev. Stat. § 24-72-702(4)(e). Delaware: Expunged records may be disclosed to law enforcement officers acting in the lawful performance of their duties in investigating criminal activity where the person whose record was expunged is a suspect of a felony or for an application to be an employee of a law-enforcement agency by the person whose record was expunged. Del. Code Ann. tit. 11, § 4376(a). District of Columbia: Records sealed on grounds of actual innocence may be opened only upon court order based on a showing of compelling need or by the person who is the subject of the records, D.C. Code § 16-806(a); all other sealed records may be made available to a prosecutor or law enforcement agency for any lawful purpose. § 16-806(b) (provides examples of lawful purposes). Federal: Makes no provision for sealing or expunging non-conviction records. Florida: Sealed and expunged records available to criminal justice agencies for criminal justice purposes or criminal justice employment purposes. Fla. Stat. §§ 943.059(4), 943.0585(4). Georgia: Restricted criminal history record information is available to “criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the [Georgia Crime Information Center]),” and sealed court records may be accessed by criminal justice agencies. Ga. Code Ann. § 35-3-37. Guam: Sealed records accessible to law enforcement agencies. 8 Guam Code Ann. § 11.10. Hawaii: Expunged records may be divulged upon inquiry by a state or federal agency considering the subject for a position “immediately and directly affecting the national or state security” or a law enforcement agency acting within the scope of their duties. Haw. Rev. Stat. § 831-3.2(d). Illinois: “The Department of State Police shall retain records sealed under subsection (c) or (e-5) of Section 5.2 or impounded [expunged] under subparagraph (B) or (B-5) of paragraph (9) of subsection (d) of Section 5.2 and shall release them only as authorized by this Act. . . . Notwithstanding the foregoing, all sealed or impounded records are subject to inspection and use by the court and inspection and use by law enforcement agencies and State’s Attorneys or other prosecutors in carrying out the duties of their offices.” 20 ILCS 2630/13. Iowa: Criminal history records are generally public, Iowa Code § 22(7), except that court records of cases where judgment deferred are confidential except to county attorneys, courts, the department of public safety, and the department of corrections upon request. § 907.4. Maine: Non-conviction records are not generally available to the public after one year, so long as no prosecution is pending and a person is not a fugitive from justice. Confidential records may be disclosed to criminal justice agencies—or their contractors—for criminal justice purposes, criminal justice employment, and certain research and statistical purposes. Me. Rev. Stat. Ann. tit. 16, § 703(2); 705. Massachusetts: Criminal justice agencies “shall have immediate access to, and be permitted to use as necessary for the performance of their criminal justice duties, any sealed criminal offender record information as defined in section 167 of chapter 6 and any sealed information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 17.” Mass. Gen. Law ch. 276, 100D. Missouri: Mo. Rev. Stat. § 610.105 authorizes automatic “closure” of records in all cases disposed of favorably to the defendant (nolle prossed, acquitted, dismissed), or where imposition of sentence is suspended pursuant to § 557.011.2(3), upon conclusion of the case, “except that the court’s judgment or order or the final action taken by the prosecutor in such matters may be accessed.” In addition, the complete record remains available to law enforcement and other governmental entities (e.g., department of revenue for driver license administration and the department of health and senior services facilities for licensing decisions). Mo. Rev. Stat. § 610.120. Nebraska: Court, “upon acquittal or entry of an order dismissing a case,” sends notice to state records repository, law enforcement agencies and city and county attorneys, that any information pertaining to the case should be “sealed” and not disseminated to persons other than criminal justice agencies. Neb. Rev. Stat. § 29-3523(7). New Hampshire: Annulled records are only available to the person receiving the annulment and to law enforcement. N.H. Rev. Stat. Ann. § 651:5(XI)(c). New Mexico: Section 5D of CREA (2019), effective January 1, 2020, provides that upon granting an order of expungement, “the court shall cause a copy of the order to be delivered to all relevant law enforcement agencies and courts. The order shall prohibit all relevant law enforcement agencies and courts from releasing copies of the records to any person, except upon order of the court.” Presumably they can use it for their own purposes, but the statute is not explicit on this issue. North Dakota: Bureau of criminal investigation may disclose sealed information to 1) “a criminal justice agency that requests the information for its functions as a criminal justice agency or for use in hiring or retaining its employees”; 2) “a court, on request, to aid in a decision concerning sentence, probation, release pending trial or appeal, or a name change petition”; 3) “[p]ursuant to a judicial, legislative, or administrative agency subpoena issued in this state; or 4) as otherwise provided by law. N.D. Cent. Code § 12-60-16.5. Ohio: Sealed records may also be accessed by law enforcement agencies, by other state agencies in connection with applications for certain state employment, and for purposes of a variety of other employments set forth in the statute governing the Bureau of Criminal Identification (state repository of criminal records), including licensed facilities working with vulnerable populations, schools, home health agencies and financial institutions. See Ohio Rev. Code § 2953.32(D); 109.57 et seq. Oklahoma: Expungement is available to those charged with a felony or misdemeanor where the charge was dismissed, there are no other pending charges, the person has never been convicted of a felony, and the statute of limitations has expired on the charges or the prosecuting authority has confirmed that it does not intend to re-file charges. Okla. Stat. § 18(A)(7). Expungement means “the sealing of criminal records, as well as any public civil record, involving actions brought by and against the State of Oklahoma arising from the same arrest, transaction or occurrence.” 22 Okla. Stat Ann. § 18(B). Expunged conviction records (including those for pardoned offenses) and records expunged following successful completion of probation remain available to law enforcement and may be used in subsequent prosecutions. § 18(D). However, any record that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years. § 19(K). Pennsylvania: Expungement is available from the court for non-conviction records where no disposition is indicated after 18 months, or otherwise where the court orders it. “Such information shall be made available to any court or law enforcement agency upon request, but may be used solely for the purpose of determining subsequent eligibility for diversion programs, probation, and expungement, and for identifying persons in criminal investigations.” 18 Pa. Cons. Stat. § 9122(c). Records sealed under an “order for limited access” under the Clean Slate Act are not destroyed and may “be disseminated to a criminal justice agency or as provided in section 9121(b.1) and (b.2)” (agencies such as the Department of Human Services for child protective services uses, and to state professional and occupational licensing agencies). 18 Pa. Cons. Stat. § 9122.1. South Dakota: “Any order of expungement shall be reported to the Division of Criminal Investigation pursuant to chapters 23-5 and 23-6. The court shall forward a nonpublic record of disposition to the Division of Criminal Investigation which shall be retained solely for use by law enforcement agencies, prosecuting attorneys, and courts in sentencing the defendant or arrested person for subsequent offenses.” S.D. Codified Laws § 23A-3-31. Tennessee: Law enforcement records, including records of district attorneys, are excluded from the definition of “public records” destroyed by an expungement order, as are court records and appellate opinions. Tenn. Code Ann. § 40-32-101(b)(1). Wisconsin: Does not provide for sealing of non-conviction records. Wyoming: Court may expunge non-conviction records 180 days after dismissal of the proceedings, if no charges are pending. Wyo. Stat. Ann. § 7-13-1401. Court sends copy of its order to division of criminal justice, which must maintain them in a manner “reasonably tailored to ensure that the record will not be available for dissemination purposes other than to a criminal justice agency of any state or a federal criminal justice agency, to be used solely for criminal justice purposes.” Wyo. Stat. § 7-13-1401(j). Expungement shall not include investigatory files of any local, state or federal criminal justice agency, where those files are being used solely for criminal justice purposes. Id.
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