WILL THEY EVER FIND OUT? WHAT YOU SHOULD KNOW ABOUT CRIMINAL HISTORY BACKGROUND CHECKS

One of the most frequently asked questions people have after they get arrested is will anyone else find out about it. Most often people are concerned that their employers or prospective employers will find out. The answer is complicated and depends on the situation. Read below to find out more.

I. Federal Records

Criminal histories are available, in varying degrees, from organizations at the federal, state and local levels. At the federal level, the FBI compiles criminal history records through the National Crime Information Center. The records that are stored there include outstanding arrest warrants, arrest records, stolen property, missing persons, felonies and misdemeanors. Additionally, the FBI runs the National Instant Criminal Background Check System (used to screen would-be purchasers of guns), the Integrated Automated Fingerprint Identification System (allows for background searches by fingerprint, when available), and the Combined DNA Index System (matches DNA to crime scenes and DNA on file).

The FBI gets the information for these databases from federal records (e.g. crime scenes and federal arrests), state and local data sharing, and the National Law Enforcement Telecommunications System (NLETS). NLETS compiles data from every local, state and federal law enforcement, justice and public safety agency for the purposes of sharing and exchanging that information. The data compiled includes motor vehicle and driver data, Canadian and Interpol databases, state criminal history records, and driver’s license and DOC images.

It is possible to obtain copies of criminal records maintained by Federal Agencies under the Freedom of Information Act (FOIA) and the Privacy Act. In general, however, private citizens or companies may only obtain such records concerning themselves, deceased individuals, or living individuals who have given their permission for their records to be obtained. Thus, it is possible for companies seeking to hire new employees to retain the services of any number of private companies that may procure criminal records from the FBI, as long as the prospective employee signs a waiver giving the permission for his records to be accessed first. Conversely, it would not be possible for a private law firm, for example, to use FOIA to retrieve a criminal history from the FBI without first getting permission from the person it wishes to research.

The FBI also makes criminal history background checks available through the Automated Fingerprint Identification System. This service is exclusively available for individuals wishing to obtain their own criminal histories; no third party will be given any report from the FBI, regardless of any permission given by the individual. You can contact the FBI directly or obtain it through an FBI-approved Channeler, which is a private business that has contracted with the FBI. These businesses receive fingerprint submission and relevant data, collect the associated fee(s), electronically forward the fingerprint submission with the necessary information to the FBI Criminal Justice Information Service (CJIS) Division for a national criminal history record check, and receive the electronic record check result for dissemination to the individual. There are eight approved Channelers:

1. 3M Cogent Systems
2. Accurate Biometrics
3. Eid Passport, Inc.
4. Fieldprint, Inc.
5. Inquiries, Inc.
6. National Background Check, Inc.
7. National Credit Reporting
8. TRP Associates, LLP dba ID Solutions

For federal records, it is only possible to obtain criminal history background checks if you have the permission of the person you want to check out, and even then it must be through a FOIA request, which can take some time. Because of this, it is necessary to explore the state and local channels in order to obtain information about people without their permission.

II. State Level

Although it is possible for background check companies to get information through FOIA, it is standard practice in the industry to use state or even county resources to complete criminal history background checks. Background check companies use statewide court, corrections and law enforcement records to compile a criminal history of the targeted individual.

Though the companies admit to using statewide databases, this method can lead to incomplete results. State repositories gather information from local courts and agencies, which they rely on to provide this information to them, so their records may not be comprehensive. Although possibly incomplete, state repositories contain arrest records, felony convictions, misdemeanor convictions, cases without disposition, expunged cases, and possibly juvenile records.
The National Association of Professional Background Screeners (NAPBS) advises its members to use statewide database searches to narrow down their search and obtain more information about the individual they are searching for. Once the statewide databases have confirmed the identity of the person whose background must be checked, the NAPBS recommends companies then use the information obtained at the state level and go to relevant county courthouses to do their primary research on the individual.

To gather this information from state agencies, the employer/background check company must obtain written authorization from the individual. The background check companies, or Consumer Reporting Agencies (CRAs), can report interactions with law enforcement going back seven years from the time of the request. Although the CRAs can report this information to employers, states place restrictions on what information employers may consider when making hiring decisions. Most states restrict employers’ consideration of criminal records that are sealed, annulled, expunged and/or pardoned by the governor during the hiring process. Although most states have these rules, employers are still able to legally view whatever information they are given by a CRA. Thus, it is difficult, if not impossible, to completely prohibit employers from considering criminal histories that they are not supposed to.

In New York, CRAs can obtain criminal history reports from the New York State Unified Court System for a fee. These reports include conviction and pending records as they relate to felony and misdemeanor cases originating in Town and Village Courts, City, and County/Supreme Courts. Data relating to non-criminal offenses (e.g. violations and infractions) do not appear on these reports. Cases processed in Town/Village Courts from 1991-2002 also do not appear on the reports. Finally, sealed records are not reported. These reports are not certified, but it is possible to contact the court of origination, where an offense was tried, and obtain a Certificate of Disposition for a nominal fee. To get these criminal history reports, it is necessary to have the full name and date of birth of the individual; the system will then provide results for all 62 counties within New York State.

Although the New York State Unified Court System will give anyone criminal history records as described above, the New York State Division of Criminal Justice Services will not. The records from the Division of Criminal Justice Services are more comprehensive than those available through the New York State Unified Court System, but it is against the law for them to give out personal criminal history records to anyone other than the individual whose record is sought or that individual’s attorney. This rule is pursuant to 9 New York Code of Rules and Regulations Part 6050.1.

III. Local/County Level

As recommended by the NAPBS, county courthouses are the places with the most first-hand information and most complete records pertaining to the criminal history of an individual. County courthouses generally contain information about felonies, misdemeanors, infractions and traffic violations in addition to arrest records, cases without disposition and expunged cases. Anyone is able to walk into a county courthouse and conduct a search of such records, as they are public property. The line is drawn, however, at expunged cases, as a member of the general public cannot go into a county courthouse and obtain information about such cases. It is possible to search New York City county records online. Search options on the court website include an index number search, plaintiff search and defendant search.

The downside to searching at the county level is that it is much more time consuming than searching state or federal databases. There are 62 counties in New York State, and although it is unlikely that an individual will have lived in all of them, it is very possible that an individual would have a criminal record in several counties in New York, as well counties in other states. Whereas researching individual counties’ records could take quite a long time, by searching in state and federal databases that time would be significantly reduced.

While it would seem as though expunged and sealed records would not be available for public viewing, evidently there are cracks in the wall. Because of agencies like NLETS and the unprecedented speed and frequency with which information is shared and passed from agency to agency, coupled with the fact that there is considerable time from the beginning of the process to when records are expunged or sealed, these records can be provided to state and federal agencies. Once they are in the federal and state databases, they are accessible to CRAs. Although CRAs generally collect data on individuals only when they are hired to do so by potential employers, the data will be stored in the state and federal databases for CRAs to access whenever they are hired to do so.

By: Charles Welcome for the Law Office of A. Adam Mehrfar

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