The Tribune reported that Court Executive Officer Susan Matherly, citing the California Rules of Court, was concerned with how case information in the Court’s database was used by those seeking to sell it, namely public records researchers working for private background screening firms. “ One of the problems I have is that we just don’t know where this information is going and how it’s being used,” Matherly said in the story. 

A local background checking consultant and Public Record Retriever Network (PRRN) member interviewed for the article, Judith Smith, said her job was “to provide accurate information and help employers make good decisions” and follows legal guidelines.  Smith told the Tribune that she believed the court’s decision to remove the computer was made too hastily and that job seekers could clear up misconceptions in their backgrounds. 

The Tribune reported that members of the public seeking case information from the SLO Court must now request information at the court’s service windows at 1050 Monterey Street in San Luis Obispo, CA, and that there are limits on how many names can be researched at a time.  The Tribune article ‘SLO court closes public computer’ is available at: http://www.sanluisobispo.com/2012/03/31/2012910/slo-court-closes-public-computer.html. 

“The privacy concerns are ill founded,” stated Lester Rosen, the founder and CEO of San Francisco-area based background check firm Employment Screening Resources (ESR), in response to the article. “ Job applicants have expressly authorized a background screening firm to locate the information, and the policy by San Luis Obispo puts anyone who currently lives or has lived in the area at a disadvantage in the job market.” 

Rosen, author of ‘The Safe Hiring Manual,’ said job applicants do not need the San Luis Obispo Court interfering with their efforts. “ It is the background screening firms that represent the best interest of job applicants,” he said. “ If the Courts were really concerned about the rights of job applicants, then they should have made an effort to understand how hiring works and all of the Federal and state laws that already protect consumers”

Rosen, a frequent speaker nationwide on safe hiring issues, added: “The claim that the San Luis Obispo Courts can do a better job of protecting job applicants than the United States Congress, the Federal Trade Commission, the federal Equal Employment Opportunity Commission, or the California state legislature seems pretty slim.” 

According to reports from PRRN Member Smith, the Public Record Update Newsletter reported that Matherly announced at a local Bar Association luncheon on March 14 that she was shutting down the public access terminal to background screening firms and that on March 19 the staff put the public access computer “in a locked room to be accessible only by attorneys and their investigators.”  The newsletter also summarized the following statements that Matherly made at the March 14 luncheon, as reported by Smith:

Public access information was never intended for background screeners.  Background screening companies just make people not get hired. 

Employers should not be using background screening companies, but rather should be using the DOJ/LiveScan (the FBI). 

There are penal codes stating that the type of research that background screening researchers are doing is illegal. ( But she refused to mention what these laws are.) 

Background screening companies and researchers are not trained to know what they are doing. 

There is no identifying information in the computer to know if a researcher has identified the correct person. ( Note: The terminal does display a full name and the DOB.) 

Employment Screening Resources (ESR) contacted Matherly by email and identified themselves as a “background screening firm in California.”  ESR asked the Court Executive Officer about the apparent issues concerning public access of criminal records, if there were any clarifications or comments she had, and if the information contained in the PRRN Newsletter report was correct (ESR included a URL to the Newsletter report).  Matherly responded with the following email, the full text of which is printed below:

In response to your e-mail, I write regarding recent changes in the manner in which the court provides access to criminal records.  At the outset, I emphasize that this court continues to provide access to criminal case records at the clerk’s counter, as in the past.  All records which the public is entitled to access have been, and will continue to be, made available for inspection. 

The court recently modified its practices to more closely adhere to the records access practices utilized by other courts of similar size and resources.  These practices are necessitated by significant budgetary constraints and consequential staff shortages under which the court is presently operating; the court must prioritize limited resources to emphasize its fundamental, constitutional duty to timely hear and decide cases. 

The law does not require “unfettered” access to criminal case information.  Rather, the law restricts public access to specified information in criminal cases.  Courts are obligated to withhold information to which access is restricted by statute, rule, or case law.  This court is reviewing its procedures to ensure that the information it should provide, is being provided, and that the information that it should not provide, is not. 

In addition, courts may establish reasonable limitations on the amount of time or volume of records allowed a particular individual inspecting case records.  Limitations are necessary to fair and efficient court operations and to ensure that all members of the public have equal access to court files.  Because of the great increase in demand for case file review, this court, like other similarly situated courts, limits the number of paper files a person may inspect at any one time. 

For budgetary and other reasons, the court has discontinued its past practice of providing access to criminal case information at a terminal at the law library and public counters.  The law limits the nature and amount of criminal records information that may be provided remotely. ( See Cal.  Rules of Court, rule 2.503(c).)  The criminal case records provided at the courthouse meet legal access requirements. 

Finally, the San Luis Obispo court has an antiquated records system.  Efforts to update and modernize the system are challenging, particularly in the present economic environment.  For the past ten years, we have been working with the Administrative Office of the Courts to implement the California Case Management System (CCMS) which would have provided public portals for remote access to court records.  However, due to the downturn in the economy, the funds needed to deploy CCMS have dissipated and as a result, the Judicial Council voted to suspend its implementation.  This leaves us with a system that is difficult and costly to program until such time we can find an alternative case management system. 

The court is carefully reviewing its practices and procedures to ensure that it is able to meet the needs of all court users, while complying fully with the law on access to court records. 

Thank you for your patience during this period of change. 

Rosen commented on the email from Matherly: “When it comes to public records, background screening should present the least difficulty for Court officials, since consumers have not only specifically authorized the search, but want a background firm to complete it as soon as possible because typically a job offer is on the line.  Background screening firms need to have reasonable access in order to get the background check report back to the employer quickly, so the hiring decision can be finalized.” 

Rosen noted that it is important Court officials to understand the following:

Under federal law, a background screening firm is known as a “Consumer Reporting Agency” or CRA.  Background checks by a CRA are normally only conducted when a consumer has received (or is about to receive) a job offer and the consumer has authorized the background check in writing.  Both the applicant and the employer want the report completed to the extent possible within 72 hours, which is the industry standard. 

Any delay in a CRA’s ability to complete reports in a timely manner works to the determent of consumers.  Consumers want a CRA to have fast access to criminal records. 

A CRA can only access criminal records with the express written authorization of a job applicant pursuant to the federal Fair Credit Reporting Act (FCRA) and applicable state laws. 

California has one of the strictest laws in the U.S. for background checks: The Investigative Consumer Reporting Agencies Act (ICRA) (CA Civil Code Section 1786 et.  seq.). 

Any CRA that violates the California ICRA is subject to civil liability for $10,000 arguably even if there are no actual damages.  That is a powerful incentive for background screening firms to be accurate in reporting criminal records (CA Civil Code Section 1786.50). 

The researchers who go to courthouses across the U.S. for background screening firms do NOT make any decision as to what is or is not reportable.  One of the services provided by a CRA is that they filter out any information that is non-reportable with reference to applicable federal and state rules. 

Background screening is an intensely regulated task, subject to not only to the FCRA and state laws, but also other laws including civil rights laws and privacy laws.  In addition, background screening is subject to regulation by the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC).  There is also a substantial body of case law on subjects such as accuracy in reporting criminal records. 

Unless expressly authorized by an act of Congress or a state legislature, a private employer cannot utilize the Federal Bureau of Investigation (FBI) database or state criminal database for a “LiveScan” background check.  The vast majority of private employers need to utilize the services of a background screening firm to perform a background check.