When performing a background check on a prospective employee, what is the most important piece of information found on each criminal record? Is it the charges and their severity? Is it the filing or offense date which tells you if the record is within scope? Is it the disposition that tells you how the offender was punished? While all of these pieces of information are crucial in the process of completing a background check, the most important piece of a criminal record is the personal identification information (PII). Without those crucial bits of data, whether they be DOB, SSN, DL#, address, etc., the rest of the record essentially becomes null and void. If you are unable to show substantial evidence that a record belongs to your specific subject, you cannot, in good faith, include that record on your final report. In our business, the only thing worse than missing a criminal record is attributing a record to someone to which it does not belong.
The problem we now face in this digital age, in which your identity can so easily be compromised, is finding the balance between protecting the employer and the public by continuing to have PII be available on public records and protecting the individual by safeguarding that same identifying information. Until now, most PII was left on public records because it was believed to be protected by the legal doctrine known as “practical obscurity” (Blankley 2004). This doctrine was first established in 1989 in the Supreme Court case U.S. Dept. of Justice v. Reporters Committee.
Essentially the ruling created the idea that while individual criminal records and the PII that they contain may be part of the public record, the compilation of those records into one vast document (or dossier) is not valid (Weitzner 2006). The rise of the background screening industry and publicly accessible online databases is now at odds with the Supreme Courts belief in practical obscurity. This has led to some states beginning the process of removing PII from their publicly available records. States where this issue has come to the forefront are Virginia, South Carolina, and Florida. In these states, we as background screeners have been forced to deal with drastically increased turnaround times, backlogs, and increases in the costs of completing a search. At the same time, those waiting for their background checks to be completed so that they can begin new jobs are left in limbo.
The challenge for members of the background screening community now becomes how we combat the removal of PII from public criminal records. At the moment, there is no clear cut answer. However, the National Association of Professional Background Screeners (NAPBS), more specifically, the Government Relations Committee, is in talks that are moving towards the creation of a task force that will be dedicated to tackling the PII problem. The goal of this task force would be to get the ear of those at the highest level of county and state governments and express the importance of maintaining the availability of PII. In the meantime, an important step will be alerting the Consumer Financial Protection Bureau (CFPB) to this growing issue so that they are aware of how difficult it is to ensure accurate reporting on subjects when the courts are redacting PII.
If this issue is allowed to spread, it will touch all of us in the background screening industry. Without the proper PII, we simply will not be able to provide the same quality product to our clients that we have in the past, and for that reason, resolving this issue must be of the highest priority to all of us.
Blankley, K. M. (2004, April 13). Are Public Records Too Public? Why Personally Identifying Information Should Be Removed from Both Online and Print Versions of Court Documents. Ohio State Law Journal, 65(2), 1. Retrieved July 7, 2016, from https://kb.osu.edu/handle/1811/70965
Weitzner, D. (2006, April 9). Privacy, practical obscurity and the power of the Semantic Web. Retrieved July 05, 2016, from http://dig.csail.mit.edu/