Criminal Records and Technology

by: Brian McElwee

There is a strange dichotomy of information when it comes to criminal record research, with the most easily accessed and ‘technically advanced’ records frequently being outdated and less reliable than those held in paper files, microfiche and archive rooms. Most background checks have multiple components, including an Address History, Criminal Record Searches, Employment and Education Verifications, Credit Reports and more. The purpose of this article however, is to focus on criminal record research and how developments in technology are presenting employers and other end-users with additional options, and more importantly, decisions that can minimize or create legal exposure.

In today’s world of instant information, there is often an assumption that a single, electronically accessible source of all criminal records must be available. Not so. Even the FBI National Criminal Information Center (NCIC), which is available only to law enforcement and certain government agencies, does not contain all records. The bottom line is simple; our laws and record keeping procedures haven’t kept pace with advances in technology. Enter the key words “background check” in any search engine and within a few clicks, you’ll find promotions for “Nationwide Criminal Record Search” and “Instant Statewide Criminal Record Search”. These searches are database oriented and represent the growing availability of what is commonly sold as an instant and complete background check. The idea that a criminal records search can be ordered and completed within a few seconds is very appealing – a miracle of sorts for those experiencing a time famine. In too many cases however, users are focused on delivery time and not content. Would it surprise you to find that an “Instant Statewide Search” doesn’t include all records in the state or that a “Nationwide Search” really isn’t nationwide? Don’t be. Because there is no standard among states as to what should or should not be reported with regard to criminal records, data content varies widely from one state to the next. The Massachusetts CORI system for example, filters the publicly available criminal record data extensively – the North Carolina Statewide search produces an extensive history, all the way down to low level misdemeanors and infractions. Many counties in Texas, which requires all counties to report felony convictions to the state, simply lack the personnel to comply with state regulations, leaving volumes of criminal records unreported. And with Vermont, California, Louisiana and other states offering no widespread electronic access to criminal record databases, how can a search be advertised as ‘Nationwide’? The answer to that question lies with the provider and is a valid consideration when selecting a vendor.

Of equal importance is how records reported from instant database sources can or cannot be used. If the reported information is from sources that are updated monthly, quarterly or even annually, then it isn’t considered to be the most current information available. Under the Fair Credit Reporting Act (FCRA), if a Consumer Reporting Agency (CRA) is reporting information that could have an adverse impact (such as a criminal record), they must either notify the consumer (applicant/employee) of what is being reported and to whom it is being reported; or have strict procedures in place to insure that reported information is the most accurate and up-to-date information available. In most cases, this means the records reported from the database would need to be verified with a County Court Criminal Record search.

Instant criminal record searches definitely have a place in your screening program – it just isn’t as the primary means of research. The most effective and FCRA compliant method of criminal record research is a County Court Criminal Record search conducted in each county of residency and employment during the past 7 years, supplemented by Statewide Criminal Record searches or a Multi-State Criminal Database search. County Court searches generally require a visit to the courthouse; usually Superior Court where felony and serious misdemeanors are handled. These searches produce the most current information available along with at least two identifiers. The Statewide and Multi-State database searches are an excellent means of broadening the geographic scope of the search. Even though most cases occur in a county of residency or employment, there are certainly occasions when individuals violate laws outside these areas. If a record is identified by one of the instant database searches and you plan to use it in making an employment decision, it should be verified via a County Court search.

Eventually, technology at the County Courts will advance to the point where up-to-the-minute information will be available on all records. When that point is reached, the ability to run a truly instant FCRA compliant criminal record search will have been realized. Until then, stick with the standard 7 year County Court search, and use the instant database searches as a supplement to improve your screening program.