News From Terre Haute, Indiana

August 8, 2012

State’s criminal-records shield law doesn’t stop release of information

By Maureen Hayden
CNHI Statehouse Bureau

INDIANAPOLIS — Using a law passed last year aimed at giving people a “second chance,” hundreds of Indiana residents with years-old arrests for low-level crimes have been granted court orders shielding their criminal histories from employers.

The law has been hailed as a success, but there’s no guarantee yet that sealed-off information won’t show up on employment background checks that are conducted by third parties.

Earlier this year, the Indiana General Assembly passed a subsequent law that bars companies that buy and sell data used by employers in hiring decisions from releasing criminal records that have been shielded by the court.

But the law doesn’t go into effect until July 2013. And there is some concern now that those private background-check companies will try to get the Legislature to roll back the law before then, citing the difficulties and expense of updating computerized criminal records that they buy by the bulk and collect by the millions.

Later this month, a legislative study committee is slated to take up the issue. In passing the legislation to regulate what those private background check companies can release, lawmakers agreed to delay its implementation until 2013 to give those companies a chance to voice their concerns to legislators.

Backers of the 2011 law that allows for the shielding of some criminal records, say the law was intended to make it easier for people with years-old, nonviolent, low-level offenses to get a job. To date, the Indiana State Police has received hundreds of court orders requiring it to remove nearly 1,700 criminal records from public access.

“Our intention was to give people who had made a mistake in their past and who had worked to redeem themselves a second chance,” said state Rep. Eric Turner, R-Cicero, who co-authored the bipartisan bill.

“It undermines our intent if the information that is supposed to be shielded is being released because of mistakes by a third party,” Turner said.

For Indiana residents who have taken advantage of the 2011 law that gave them a legal right to shield some criminal records from employers, the issue is critical.

In April, the National Consumer Law Center, an advocacy organization, released a report that said an increasing number of background employment checks are error-filled because millions of criminal records are being collected digitally and not updated or checked for accuracy.

The report cites multiple examples of errors, including those involving job candidates who’d been charged with a crime and later exonerated, but only the criminal charge showed up on the record. The center also found examples of people who’d had their court records expunged or sealed, but the information showed up in their employment background checks anyway.

“It’s heart-breaking for someone who thinks he’s been given a second chance to find out that’s not really true,” said Persis Yu, the National Consumer Law Center attorney who authored the report. “It certainly undermines their faith in the judicial system.”

State Rep. Jud McMillin, R-Brookville, has been both a prosecutor and a defense attorney. He supports the 2011 law that allows people to have their arrests records shielded, and he’s convinced that third-party data collectors can comply with the state’s requirements, set to kick in next July, that they maintain accurate records.

“They’ve told us they can do this, that have the right technology,” McMillin said. “We need to hold them to their word.”

Rep. Greg Steuerwald, R-Avon, an attorney, chairs the House Courts and Criminal Code committee where the issue will be discussed on Aug. 23. Steuerwald said he supports the law. “We just need to make sure it does what we intended it to do.”

A spokesman for Lexis-Nexis, one of the world’s biggest providers of background information to employers, declined to comment on the company’s concerns about what the Indiana law will require the company to do when it goes into effect next year.

There is already a federal law, the Fair Credit Reporting Act, that requires companies that collect and sell background information to employers to keep their records updated and accurate. But in its April study, the National Consumer Law Center said the industry is largely unregulated and infrequently policed.

On Wednesday, the Federal Trade Commission announced that one of the biggest employment background screening companies, HireRight Solutions, agreed to pay $2.6 million to settle FTC charges that it violated the Fair Credit Reporting Act by failing to use reasonable procedures to assure the accuracy of the criminal history information it sold to employers.

It was the first time the FTC has charged an employment background screening firm with violating the federal law. The FTC said HireRight Solutions sold information to employers that included criminal history records that had been expunged or sealed, failed to prevent the same criminal offense information from being included in a background report multiple times, and failed to follow reasonable procedures to prevent obviously inaccurate consumer report information from being provided to employers.