Criminal History Records: Additional Actions Could Enhance the Completeness of Records Used For Employment-Related Background Checks
Published: 2015-02-12T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Authorized employers use information from FBI criminal history record checks to assess a person's suitability for employment or to obtain a license. States create criminal records and the FBI facilitates access to these records by other states for nationwide checks. GAO was asked to assess efforts to address concerns about incomplete records, among other things.
This report addresses to what extent (1) states conduct FBI record checks for selected employment sectors and face any challenges; (2) states have improved the completeness of records, and remaining challenges that federal agencies can help mitigate; and (3) private companies conduct criminal record checks, the benefits those checks provide to employers, and any related challenges.
GAO analyzed laws and regulations used to conduct criminal record checks and assessed the completeness of records; conducted a nationwide survey, which generated responses from 47 states and the District of Columbia; and interviewed officials that manage checks from the FBI and 4 states (California, Florida, Idaho, and Washington). GAO selected states based on geographic location and other factors.
section_title: What GAO Found
paragraphs: Most states that responded to GAO's nationwide survey reported conducting Federal Bureau of Investigation (FBI) criminal history record checks for individuals working with vulnerable populations—such as children and the elderly—and other employment sectors that GAO reviewed (see fig. below). States that did not conduct FBI record checks said this was because the state lacked a designated agency to review check results, among other challenges. In 2006, the Attorney General proposed that nongovernmental entities also serve in this role but noted that this would require considerations about securing data and protecting personal information.
States have improved the completeness of criminal history records used for FBI checks—more records now contain both the arrest and final disposition (e.g., a conviction)—but there are still gaps. Twenty states reported that more than 75 percent of their arrest records had dispositions in 2012, up from 16 states in 2006. Incomplete records can delay checks and affect applicants seeking employment. The Department of Justice has helped states improve the completeness of records through grant funding and other resources, but challenges remain. For example, the FBI's Advisory Policy Board—which includes representatives from federal, state, and local criminal justice agencies—created a Disposition Task Force in 2009 to address issues regarding disposition reporting, among other things. The task force has taken actions to better measure the completeness of state records and identify state requirements for reporting disposition information. However, the task force does not have plans with time frames for completing remaining goals, such as examining and recommending improvements in national standards for collecting and reporting disposition information.
According to stakeholders GAO contacted, the use of private companies to conduct criminal history record checks appears to be increasing because of employer demand and can provide benefits, such as faster response times. Federal agencies regulate these companies and have settled complaints, such as in cases where the wrong records were sent to employers. Private companies can face challenges in obtaining complete and accurate records, in part because not all states make their criminal record information accessible for private companies to search.
section_title: What GAO Recommends
paragraphs: GAO recommends, among other things, that the FBI establish plans with time frames for completing the Disposition Task Force's remaining goals. The Department of Justice concurred with all of GAO's recommendations.

section_title: Letter
paragraphs: From fiscal years 2009 through 2013, about 120 million criminal history  record checks were conducted through the Federal Bureau of  Investigation (FBI) for non-criminal-justice purposes. Employers can use  information from these types of checks to screen job applicants, including  those seeking positions working with children, the elderly, or other  vulnerable populations. States primarily create and maintain criminal  history records—which can include arrest and disposition information— and make these records available to the FBI to facilitate the interstate  sharing of records for criminal and non-criminal-justice purposes. In  general, disposition refers to the result or conclusion of criminal  proceedings, such as charge dismissed, acquittal, adjudication withheld,  probation, or conviction. Authorized state agencies have direct access to  FBI-maintained criminal history records to conduct non-criminal-justice  record checks, and the results are automatically sent back to the  requesting agency.
The primary vehicle for states to conduct FBI criminal history record  checks for non-criminal-justice purposes is through provisions contained  in the Departments of State, Justice, and Commerce, the Judiciary, and  Related Agencies Appropriation Act, 1973 (hereinafter referred to as  Public Law 92-544). Pursuant to Public Law 92-544, the FBI is  authorized to use funds for the exchange of identification records,  including criminal history record information, with officials of state and  local governments for purposes of employment and licensing if this is  authorized by state statute and approved by the Attorney General. In  general, government agencies that receive the results of FBI criminal  record checks apply their own suitability criteria for employment or  licensing or criteria established under state law. In addition, to expand  access to FBI record checks for certain populations—such as individuals  who provide services to children—federal laws have been enacted that  authorize state governmental agencies to conduct FBI checks without  requiring a separate state statute and approval from the Attorney  General.
In June 2006, the Attorney General reported that the criminal history  background check system was a patchwork of state and federal laws that  had resulted in inconsistencies in access to FBI criminal record checks  across states and industries. Since then, Congress has raised questions  about the extent to which FBI record checks are carried out across states,  as well as the impact that incomplete records may have on employment  or licensing decisions.
Employers can also obtain background information on an applicant— including criminal record information—from private sector companies that  compile and sell information that they may obtain directly from states or  other sources. You asked that we assess the states’ use of FBI record  checks, the completeness of records, and the role of the private sector in  conducting checks. This report addresses the following questions:
To what extent do states conduct FBI criminal history record checks  for selected employment sectors and what challenges, if any, do they  face in conducting these checks?
To what extent have states made progress in improving the  completeness of criminal history records and what challenges remain  that federal agencies can help mitigate?
To what extent do private companies conduct record checks, what  benefits do they provide, how are they regulated, and what challenges  do they face?
Regarding access to FBI record checks and state challenges, we  assessed whether states had established laws or were using authorities  under federal laws to conduct FBI checks for three employment sectors— those related to the National Child Protection Act of 1993, which covers,  among other things, individuals with responsibility for vulnerable  populations; the Edward M. Kennedy Serve America Act (Serve America  Act), which covers organizations that can serve vulnerable populations  and receive funding under national service laws (e.g., AmeriCorps); and  the Private Security Officer Employment Authorization Act of 2004, which  covers organizations that employ private security officers. We selected  these laws to represent a range of factors, including variation in whether  the law requires or authorizes (permits) an FBI record check. In addition,  we conducted a web-based survey of officials at agencies within all 50  states and the District of Columbia that maintain criminal history records  (state repositories) to determine the extent to which states are conducting  FBI checks for the employment sectors covered under the three federal  laws and what challenges, if any, states face in doing so. We received a  response rate of 94 percent—47 states and the District of Columbia— which we collectively refer to as states throughout this report. We also  interviewed management officials from state repositories and courts that  maintain criminal history information in 4 states—California, Florida,  Idaho, and Washington—to determine the extent to which they conduct  FBI checks, any challenges, and actions taken to address those  challenges. We selected the 4 states based on geographic location and  other factors. In addition, we analyzed federal regulations and procedures  for conducting criminal record checks and interviewed FBI officials who  manage the checks to determine any challenges in providing access. We  also interviewed senior officials from the Compact Council—the primary  state and federal body for setting policy around the interstate sharing of  criminal history records for non-criminal-justice purposes. Further, we  interviewed management officials from the Corporation for National and  Community Service—a federal agency that oversees service programs  such as AmeriCorps and the Senior Corps and requires background  checks for its participants and program employees—to determine whether  challenges existed in obtaining information from FBI record checks. We  also interviewed management officials from the National Center for  Missing and Exploited Children—an organization that uses criminal  history records provided by the FBI to determine suitability of its  volunteers—to determine what challenges existed in its use of FBI  criminal history records.
Regarding the progress states have made in improving the completeness  of criminal history records and related challenges, we analyzed data that  states provided to the Department of Justice (DOJ) via a survey from  2006 through 2012 on the percentage of their arrest records that  contained information on the disposition of those arrests. We selected  this time frame because 2006 was the year the Attorney General issued  the criminal history background check report and 2012 was the year with  the most current available survey data. To assess the reliability of the  data, we analyzed the survey methodology, interviewed DOJ officials who  conducted the surveys, and examined data for obvious errors. We  determined that the data were sufficiently reliable for the purposes of this  report. We also analyzed the results of the FBI’s most recent round of  triennial state audits, which include assessing the completeness of state   As of  records and use of the records for non-criminal-justice purposes.January 2014, the FBI had finalized 44 state audits that the bureau  conducted from 2011 through 2013. Further, we interviewed management  officials who maintain criminal history records in the 4 states we  contacted to determine challenges they face in maintaining complete  records and related initiatives to improve record completeness. We also  interviewed officials from the FBI and DOJ’s Bureau of Justice Statistics  (BJS) who have key roles in providing access to FBI record checks and  providing assistance to states in maintaining complete records. Further,  we interviewed officials from the Office of Personnel Management (OPM)  who collect disposition information as part of OPM background  investigations.
Regarding the role of the private sector in conducting employment-related  criminal record checks, we reviewed relevant sections of the Fair Credit  Reporting Act and Title VII of the Civil Rights Act of 1964 that related  to private background screening companies’ use of criminal history  records. We also analyzed a 2005 national task force report on the  commercial sale of criminal justice record information and a 2006  Attorney General’s report on criminal history background checks. We  also interviewed senior officials from associations that represent  background companies, such as the National Association of Professional  Background Screeners and the Consumer Data Industry Association, to  determine the role of private sector agencies in providing criminal history  information to employers. Further, we interviewed senior officials from  federal agencies that regulate these private sector entities—including the  Federal Trade Commission, the Equal Employment Opportunity  Commission, and the Consumer Financial Protection Bureau—to  determine how the industry is regulated as well as the size and scope of  the industry.
We conducted this performance audit from October 2013 to February  2015 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives. Appendix I contains  additional information on our scope and methodology.
subsections: section_title: Background
paragraphs: Private, public, and nonprofit employers can use information from criminal  history records for non-criminal-justice purposes, such as screening an  individual’s suitability for working with children, the elderly, or other  vulnerable populations. States primarily create and maintain criminal  history records, but the FBI facilitates the interstate sharing of these  records for criminal and non-criminal-justice purposes. Specifically, state  central record repositories collect criminal history information from law  enforcement agencies, courts, and other agencies throughout the state  and submit records to the FBI. For example, state repositories collect  arrest records from local police departments and disposition records from  prosecutors or courts.
The FBI maintains a fingerprint-based criminal history record repository  called the Next Generation Identification (NGI) System (previously the  Integrated Automated Fingerprint Identification System). The NGI System  contains records from all states and territories, as well as from federal  and some international criminal justice agencies. The FBI’s Interstate  Identification Index provides for the decentralized interstate exchange of  criminal history record information for authorized criminal and non- criminal-justice purposes and functions as a part of the NGI System. In  general, states conduct FBI criminal history record checks by searching  an applicant’s fingerprints against records in the NGI System (see fig.  1).
In general, the FBI provides the results of a FBI criminal history record  check to a designated agency—such as a state department of health and  human services or board of occupational licensing—through a criminal  history summary. This summary—often referred to as a criminal history  record, or rap sheet—includes the name of the agency that submitted the  criminal record to the FBI; the date of the arrest; the arrest charge; and  the disposition of the arrest, if known, to the FBI.
Federal laws that require or authorize states to conduct FBI criminal  history record checks for non-criminal-justice purposes—including  employment and licensing—cover a wide range of industries, such as  those that serve vulnerable populations. These federal laws may  authorize states to conduct FBI checks using just the authority of the  federal law without requiring a related state statute.addresses the states’ use of three federal laws, as shown in table 1.
In addition to federal laws, states may pass statutes that the Attorney  General approves pursuant to Public Law 92-544 that require or authorize  employers or organizations to request FBI criminal record checks for  applicants seeking employment or licensing in their state. For example,  states can require FBI checks for non-criminal-justice purposes in areas  regulated by the state, such as civil servants and nursing home workers.  States can also pass laws to implement federal laws, which can include,  for example, additional provisions on the types of criminal activities that  would disqualify an applicant from employment or licensing. All state laws  related to Public Law 92-544 have to be approved by the Attorney  General. According to FBI officials, as of 2014, states had passed a total  of about 2,800 laws that require or authorize FBI criminal history record  checks, which include checks for employment or licensing purposes.
DOJ, states, and others have emphasized the importance of having  complete records when conducting FBI checks—records that contain the  arrest charge and the disposition of the arrest (e.g., conviction or  acquittal)—since incomplete records can lead to delays in completing  checks and have adverse impacts on applicants. In 1995, DOJ  established the National Criminal History Improvement Program (NCHIP)  to enhance the quality, completeness, and accessibility of criminal history  record information maintained by the states. All 50 states, the District of  Columbia, and U.S. territories have received grant awards. The FBI also  helps to ensure the integrity of state-level criminal record systems through  periodic audits.
Employers can also obtain background information—including criminal  record information—from private sector companies that compile and sell  information that they may obtain from state courts or other public sources.  These companies are classified as consumer reporting agencies under  the Fair Credit Reporting Act (FCRA). This act contains provisions that  are intended to require these agencies to adopt reasonable procedures  for using consumer credit, personnel, insurance, and other information in  a manner that is fair and equitable to the consumer, with regard to the  confidentiality, accuracy, relevancy, and proper utilization of such  information. At the federal level, the Federal Trade Commission (FTC)  and the Consumer Financial Protection Bureau (CFPB) regulate private  background companies and employers that conduct background checks  that may contain criminal record information. In addition, the Equal  Employment Opportunity Commission (EEOC) regulates and oversees  employers’ use of criminal record information provided by private  background companies under Title VII of the Civil Rights Act of 1964.
section_title: Most States Conduct FBI Record Checks for Selected Employment Sectors, but Lack of State Agencies to Review Check Results Remains a Challenge
paragraphs: Most states that responded to our nationwide survey reported that they  conduct FBI record checks for individuals working with vulnerable  populations and other employment sectors we reviewed. States not  conducting such checks reported lacking designated state agencies to  review the check results, among other challenges. The Attorney  General has proposed expanding FBI record checks to employers and  other third parties, but also noted that any expansion should consider  concerns about securing data and protecting personal information.
subsections: section_title: Most States Conduct FBI Checks for Individuals Working with Vulnerable Populations and Other Selected Employment Sectors, but Gaps Remain in Conducting Checks
subsections: section_title: Employment and Volunteer Positions with Vulnerable Populations
paragraphs: The National Child Protection Act (NCPA), as amended, authorizes states  to have procedures that require qualified entities designated by the state  to contact an authorized state agency to request an FBI criminal  background check. This check is for the purpose of determining whether  a person has been convicted of a crime that bears upon the person’s  fitness to have responsibility for the safety and well-being of children, the  elderly, or individuals with disabilities. Our survey results show that 45  of 48 respondents conduct FBI record checks for individuals seeking jobs  or licenses to be teachers in schools—positions that are typically  regulated by states. The largest gap in FBI record checks was for  volunteers serving the elderly or individuals with disabilities, where 36 of  47 respondents reported conducting such checks, but 11 of 47  respondents did not, as shown in figure 2.
The primary reasons states reported not conducting FBI criminal history  record checks for employment or volunteer positions covered by the  NCPA were the lack of a designated state agency to review the FBI  record check results or the states did not have licensing or regulatory  requirements to check volunteers. One survey respondent noted that, in  some cases, state legislatures do not support expanding the availability of  background checks to certain classes of employees, despite the  existence of federal laws that seek to encourage such checks.
Recognizing concerns about the background check process available to  volunteer organizations, the Prosecutorial Remedies and Other Tools to  End the Exploitation of Children Today Act of 2003 established the Child  Safety Pilot Program. The act required the Attorney General to establish  an 18-month program that would provide for the FBI to conduct 100,000  criminal history record check requests from certain youth-serving  organizations, such as the Boys and Girls Clubs of America. Under the  pilot, the FBI provided the results of a check to the National Center for  Missing and Exploited Children—rather than through a state agency— which made suitability determinations and conveyed the decision to the  organization that made the request. According to officials from the  national center, of the approximately 105,000 FBI checks that the  organization conducted over the 8-year pilot, about 6,500 (6.2 percent) of  all applicants had a criminal record that disqualified them from working  with children. Officials who represent volunteer organizations said that  they plan to continue to pursue legislation in upcoming congressional  sessions that would provide for certain youth-serving organizations to use  information from FBI record checks to screen applicants.
Some states have also developed programs that allow volunteer  organizations to obtain information from FBI criminal record checks. For  example, according to officials from the Florida Department of Law  Enforcement, Florida has established a program—which the FBI  approved—that authorizes certain volunteer organizations to receive the  results of FBI record checks from the department and determine an  applicant’s suitability for employment, rather than relying on a Florida  agency to adjudicate the results on the organization’s behalf. Senior  officials from the Florida Department of Law Enforcement noted that the  state requires volunteer organizations to sign a user agreement before  gaining access to FBI-maintained criminal records, a requirement that is  intended to help ensure that the organizations properly use and  safeguard the records. The Florida officials also said that the department  can audit these entities to ensure compliance with the agreement.
section_title: Individuals Serving in National Service Programs
paragraphs: In general, the Edward M. Kennedy Serve America Act requires, with  limited exceptions, that entities conduct FBI criminal history checks for  certain individuals working with vulnerable populations. These  individuals serve in positions that provide the individuals with a living  allowance, stipend, national service educational award, or salary through  a program receiving assistance under national service laws. Among  other things, these individuals can tutor children in reading, run after- school programs, provide health information to a vulnerable population,  and conduct neighborhood watch programs. Our survey results show that  30 of 44 respondents conduct FBI record checks for national service  program grant recipients and 14 of 44 respondents did not conduct such  checks.
Of the 14 respondents that did not conduct FBI checks, 12 reported not  having procedures or agencies in place to review the results of checks for  national service program grant recipients, 6 reported lacking sufficient  resources to review check results, and 5 reported lacking a state licensing  or regulatory need to conduct such checks.  According to a senior official  from the Corporation for National and Community Service (CNCS)—the  federal entity that administers programs established under national  service laws—CNCS has received hundreds of requests from national  service program grantees for an exemption from the FBI record check  requirement and for approval to use an alternative screening procedure,  such as the ability to use a substantially equivalent process. The officials  noted that a subset of these requests are from organizations that seek an  exemption to the FBI record check requirement because of the difficulties  they have encountered in obtaining such checks.
Survey respondents could provide more than one reason for not conducting checks. conducting state and national fingerprint-based criminal history record  checks for national service program participants, in part to allow states to  make their own suitability determinations. In October 2014, CNCS  officials stated that in light of the challenges national service programs  have faced in obtaining FBI record checks, CNCS is assessing the costs  and benefits of acting as a national clearinghouse for such checks if no  option is available in the organization’s own state. CNCS expects to make  a decision in 2015 regarding whether acting as a clearinghouse is  feasible.
section_title: Private Security Officers
paragraphs: In general, the Private Security Officer Employment Authorization Act  (PSOEAA) of 2004 and its associated regulations permit authorized  employers to submit the fingerprints of an employee or applicant for  employment as a private security officer to a state repository of a  participating state for purposes of conducting an FBI criminal history  record check. Congress found that employment of private security  officers in the United States was growing rapidly; private security officers  function as an adjunct to, but not replacement for, public law enforcement  by helping to reduce and prevent crime; and such officers protect  individuals, property, and proprietary information. Private security officers  provide protection to banks, hospitals, manufacturing facilities, nuclear  power plants, airports, and schools, among other operations.
Our survey results show that
37 of 43 respondents conduct FBI record checks for private licensed
7 of 43 respondents conduct FBI record checks for private unlicensed  security officers.
The primary reasons why states reported not conducting FBI record  checks for private security officers were because the states did not  license or regulate security officers or because the states did not have a  designated state agency to adjudicate the results of the checks. Under  certain circumstances, PSOEAA regulations also generally permit  authorized employers to submit the fingerprints to a state other than the  state in which the employee or applicant would be working for purposes  of an FBI criminal history record check. The chair of the Compact  Council informed us about 1 state (Minnesota) that was conducting FBI  checks for employers located in other states. According to a senior official  from Minnesota’s Bureau of Criminal Apprehension, the bureau did not  face any challenges in conducting such checks. The official noted,  however, that only one employer had requested Minnesota’s help and the  employer asked Minnesota to conduct FBI checks for employees in 11  other states where the employer operated.
According to an executive-level official from the National Association of  Security Companies—the nation’s largest contract security trade  association—requiring that a state agency be involved in conducting FBI  checks is a barrier for employers. The official explained that for a state  agency to set up an FBI background check program, the state may need  legislative authority, appropriations, and employees with expertise in  interpreting criminal records, among other things. The official added that  PSOEAA and federal requirements only allow states to provide employers  with a determination as to whether or not an applicant failed to meet the  state’s or PSOEAA’s criteria that would disqualify an applicant from  employment, and that the private security industry would like to see  revisions to PSOEAA that would allow employers greater access to the  actual information returned in a FBI record check. The official said that  the association plans to propose legislative changes in future  congressional sessions to address these and other barriers.
section_title: DOJ and Others Have Recommended Expanding Access to FBI Checks, but Concerns Remain about Securing Data and Protecting Personal Information
subsections: section_title: Recommendations for Expanding Access to FBI Record Checks
paragraphs: In 2005 and 2006, the Attorney General and others recommended  expanding employer and third-party access to FBI criminal history record  checks as a way to overcome barriers presented by the need for a state  agency to adjudicate record check results. For example, according to a  2005 national task force report on criminal background checks, states  faced challenges in conducting FBI record checks for employment  purposes, which resulted in inconsistent use of records across the  states. The task force made recommendations to state and federal  policymakers regarding access to records for non-criminal-justice  purposes, which included removing the federal requirement that a public  agency must receive record check results. Senior officials from SEARCH  and the FBI, as well as a state official we met with who participated on the  task force, said that they were not aware of any specific actions that  either Congress or DOJ took related to expanding record access as a  result of the recommendations. Our discussions with officials from  organizations representing employers for the various employment sectors  we reviewed indicate that the access issues identified in the 2005 report  are still of concern to employers today.
U.S. Department of Justice, The Attorney General’s Report on Criminal History  Background Checks. capacity allows—that private employers are authorized to use to inquire if  an applicant or employee has a criminal history. Senior DOJ officials, a  former official from the Attorney General’s office with direct knowledge of  the report’s history, and SEARCH officials who work with states on  related policy issues were not aware of any specific actions on these  recommendations.
section_title: Concerns Remain over Expanding Access
paragraphs: Senior officials from the FBI’s Criminal Justice Information Services  Division and officials from all 4 case study states raised some concerns  that any attempt to expand access to FBI criminal records checks must  consider. Specifically, FBI officials said that a primary concern is the  extent to which nongovernmental entities would be able to adequately  protect and store criminal history record information and the potential  impacts on individual privacy rights if records were to be shared  extensively beyond state agencies. The officials added that another  concern is the potential resulting increase in the FBI’s workload in  auditing these entities’ compliance with security policies regarding the  storage, use, and dissemination of criminal record information. Senior  officials from SEARCH and all 4 of our case study states noted that  expanding access too broadly to nongovernmental entities could mean  that state agencies could lose the fees collected for facilitating checks,  thereby undermining the revenue streams that states use in turn to  maintain and operate criminal history repositories.
The SEARCH and Attorney General reports discussed above noted  similar concerns with expanding access, and proposed some potential  solutions that could balance expanded access with data security and  applicant privacy concerns. For example, SEARCH recommended steps  to improve the completeness and accuracy of criminal history records and  protection of applicant privacy rights, through allowing individuals to  access and correct their records, among other things. The task force  also recommended expanding access only to organizations that appoint  individuals to positions or responsibilities involving access to vulnerable  populations, sensitive information, or as otherwise deemed necessary by  the Attorney General for public safety or national security. In addition, to  address concerns regarding information security, the Attorney General  recommended that (1) criminal and civil penalties be established for those  provided access under any new authority for the unauthorized use of  criminal history information and (2) users of such information should enter  into agreements that specify the requirements for access, including  security of the information and notice to individuals concerning record  access and correction and fair use of the information. Further, to address  concerns about state fee revenues, the task force noted that any  expansions in access should require authorized entities to go through  state criminal history repositories for access—not directly to the FBI— unless states have specifically opted out of providing such access.
section_title: States Have Improved the Completeness of Criminal History Records with DOJ’s Assistance, but Continue to Face Challenges
subsections: section_title: States Reported Progress in Providing Complete Records to the FBI, but Incomplete Records That Can Delay Criminal Record Checks and Affect Applicants Still Exist
paragraphs: According to BJS surveys of state criminal history information systems,  from 2006 through 2012, states reported making progress in providing  complete criminal history records to the FBI—records that include the  arrest and the final disposition of the arrest. For example, BJS surveys  show that the number of states that reported providing more than 75  percent of their arrest records with final dispositions increased from 16  states in 2006 to 20 states in 2012, as shown in figure 3.
According to officials from BJS’s Statistical Planning, Policy, and  Operations Division and senior officials from our 4 case study states,  factors that help states compile complete criminal records include the  automation of criminal record information—such as devices that digitally  record and electronically transmit fingerprint images from police  departments to state agencies that maintain criminal history records—and  improved coordination among local criminal justice entities. For example,  according to a director in the Florida Department of Law Enforcement, the  high level of coordination among officials on the Florida Criminal and  Juvenile Justice Information Systems Council has helped increase the  completeness of state records because the members collectively decided  on the best use of federal grant funding to improve state record  completeness.
Nevertheless, in 2012, 10 states reported that 50 percent or less of their  arrest records had final dispositions. FBI officials noted that it is not  possible for states to have 100 percent complete records because it can  take more than 1 year for criminal felony cases to conclude and  disposition information to be entered into criminal record systems.
FBI officials also noted that the statement in the 2006 Attorney General’s  report on criminal history background checks that only 50 percent of  arrest records in the FBI’s Interstate Identification Index have final  dispositions reflects a misunderstanding of how criminal history records  are maintained. Rather, during an FBI criminal history record check, the  FBI accesses certain records that states maintain that are not forwarded  to the FBI. For example, some states forward arrest records to the FBI  but not disposition information. For these states, during an FBI record  check, the FBI reaches out to the state to obtain the arrest and disposition  information from the state’s records.
The impact of incomplete criminal history records on individuals seeking  employment or licensing depends in part on whether a state’s laws permit  employers or licensing agencies to hire applicants contingent upon the  completion of a criminal record check. According to senior repository  officials from our 4 case study states, 2 states permit contingent hiring for  certain positions and 2 do not. For example, a manager within the Idaho  State Police’s Bureau of Criminal Identification said that it could take  months to obtain disposition information from other states, but that  applicants are placed in certain jobs if they are supervised pending the  results of the FBI record check. In contrast, a bureau chief within the  California Department of Justice said that applicants cannot be hired or  licensed until all aspects of the background check are completed, which  includes following up on incomplete criminal records. A senior official from  Washington’s Department of Social and Health Services Background  Check Central Unit said that incomplete records can lead to negative  impacts on the applicant, since the applicant is responsible for obtaining  missing information from courts. The official added that when employers  have urgent hiring needs, they may choose another qualified applicant  rather than wait for an individual to gather court records that are needed  to complete the FBI record check.
According to a 2005 BJS report, complete records enable hiring entities to  avoid delays due to the time needed to track down missing criminal  record information. Senior officials from central record repositories at all  4 of the states we visited noted that incomplete criminal records returned  from an FBI record check can result in a variety of challenges when  screening an individual’s suitability for employment or licensing. For  example, an official from 1 state said that because of limited staff and  resources, criminal justice agencies in other states may not be responsive  to requests for information on incomplete criminal records. The official  noted that these agencies may also give a higher priority to addressing  inquiries from law enforcement, further delaying responses to record  inquiries for employment and licensing purposes. Repository officials from  another state noted that it generally takes 1 or 2 days to finish an FBI  criminal record check when no records are returned or the records are  complete, but otherwise it can take up to several months, for example, to  conduct the research needed to complete a record.
Further, officials from the four record repositories said that state privacy  laws—which can restrict the information that agencies are allowed to  disseminate for non-criminal-justice purposes—can affect a state’s ability  to obtain information. For example, officials in Washington State said that  according to state law, they can disseminate a criminal record for non- criminal-justice purposes only if the record contains conviction information  or arrest information that is less than 1 year old. Also, the officials said  that it can be difficult to interpret whether records returned from another  state would prohibit employment or licensing in the state where an  individual is seeking employment, since state laws can define felonies  and misdemeanors differently. The officials noted that these differences  require following up with the state that generated the record, thus adding  more time to the background check.
section_title: DOJ Helps States Improve Record Completeness, but States Continue to Face Challenges in Submitting Complete Records to the FBI
paragraphs: DOJ has several programs designed to help states improve the overall  quality of criminal history records—including the completeness of  records—and officials from our 4 case study states said that they  generally found DOJ’s assistance to be helpful. Our analysis of published  reports and interviews with officials from our case study states, BJS,  SEARCH, and the National Center for State Courts indicate that state  challenges in submitting complete records to the FBI are generally  inherent to local jurisdictions, and states have used DOJ’s assistance  programs to help address these challenges.
subsections: section_title: DOJ Efforts to Help States
paragraphs: DOJ provides a number of different resources to help states improve  criminal record completeness, including grant funding, sharing best  practices, task forces, and audits.
National Criminal History Improvement Program: DOJ assists states  in improving the completeness, accuracy, and timeliness of criminal  history records through the National Criminal History Improvement  Program. For fiscal years 2008 through 2012, DOJ targeted  approximately $23 million in NCHIP grants to state record disposition  improvement projects, such as updating records that only contain arrests  to include disposition information and upgrading and automating criminal  history record systems to capture data on dispositions from courts and  prosecutors. Senior officials from all 4 of our case study states reported  that NCHIP grants have helped improve the quality and completeness of  their criminal history records. For fiscal years 2008 through 2012, NCHIP  grant funds ranged from $6 million to $11 million and averaged  approximately $9.5 million per year. Appropriations for NCHIP for fiscal  year 2014 were at $46.5 million. This was primarily intended to support  state efforts to increase the number of felony records and criminal-related  mental health records available for firearm background checks through  the National Instant Criminal Background Check System. BJS officials  who administer the NCHIP grants said that an increase in felony records  available for firearm checks will also benefit non-criminal-justice checks  because the FBI searches the Interstate Identification Index, which stores  felony records for both types of checks.
Best practices: DOJ has also worked to help states improve record  completeness by sharing best practices through informational websites  and reports, among other avenues. For example, under a DOJ grant, the  National Center for State Courts is creating a web-based tool kit that  brings together information from state pilot projects, focus groups, and  other research reports to identify, among other things, best practices on  how to overcome disposition reporting and coordination challenges  among state and local criminal justice agencies. Also, under DOJ’s  funding and direction, SEARCH is implementing the State Repository  Records and Reporting Quality Assurance Program, which includes a  voluntary self-assessment checklist for states as a way to disseminate  best practices. According to a director at SEARCH, after a state  completes the checklist, a SEARCH official provides on-site technical  assistance to review the responses and recommend additional state  follow-up actions. The official noted that, as of September 2014, SEARCH  officials had provided on-site technical assistance in 20 states. The official  said that the program will continue under BJS grant funding in order to  provide on-site technical assistance to additional states, continue  improving the checklist, and incorporate new standards that states need  to meet in order to utilize the FBI’s technology advancements related to  criminal record information.
Disposition Task Force: The FBI’s Advisory Policy Board formed the  Disposition Task Force in 2009 to address issues related to the  completeness, accuracy, and availability of criminal record dispositions  from courts and prosecutors and develop a national strategy for improving  the quality of disposition reporting. The task force is composed of  representatives from different components of state and local criminal  justice systems—including state repositories, state courts, prosecutors,  and Compact Council members—as well as federal criminal justice  officials, such as from DOJ and OPM. According to an FBI official who  helps facilitate task force meetings, the task force established an initial  set of goals in 2009, but under new leadership in 2012 determined that  these goals would not address the greatest disposition-reporting  challenge—the lack of national disposition-reporting standards. As a  result, the FBI official noted that the task force decided to take a broader  look at disposition-reporting issues, and evolved its initial goals into five  broader goals and the foundation of a national strategy.
According to FBI officials, as of September 2014, the task force had  achieved one of its 2012 goals by refining the calculation that the task  force would use to estimate the rate in which state and federal arrest  records contained dispositions and reaching consensus on the definition  of the term “disposition” to calculate the disposition rate. The officials  noted that the task force had also taken steps to achieve two other goals  by (1) reviewing the results of a National Center for State Courts national  survey to identify existing federal and state requirements for collecting  and reporting disposition information, and (2) identifying steps to develop  and produce a guide on disposition best practices.
The task force, however, did not have a plan with time frames or  milestones for either completing the best practices guide or achieving the  remaining goals, which could also lead to a national strategy—an original  2009 objective for the task force. Our work indicates that the task force  has not formulated such plans or set time frames and milestones in part  because of the changes in leadership and goals in 2012. Nevertheless,  after more than 5 years, the task force has not issued best practices or  national standards for collecting and reporting disposition information or  developed a national strategy, even though disposition reporting has  been a long-standing challenge. Establishing plans with time frames and  milestones could help hold the task force accountable for more progress  in achieving the goals and the overall results of improved disposition  reporting. Taking these steps would also be consistent with program  management standards that call for specific goals and objectives to be  conceptualized, defined, and documented in the planning process, along  with the appropriate steps, time frames, and milestones needed to  achieve those results.
FBI audits of states: The FBI conducts a triennial audit of state criminal  justice information systems to determine, among other things, whether (1)  the records the state maintains contain all known arrest and disposition  information and (2) the submission of criminal record information to the  FBI has been “unduly” delayed. Federal regulations provide that states  should submit dispositions to the Interstate Identification Index within 120  days after the disposition occurred. meeting these two requirements, FBI auditors review state-level  processes and procedures and assess, among other things, if the state  repository has a backlog of dispositions that it has not submitted to the  FBI. The FBI found that from 2011 through 2013, 12 of the 44 states that  To determine whether states are  it had audited were noncompliant with one or both of the requirements.
28 C.F.R. § 20.37.
For example, a 2012 FBI audit of 1 state found that the state was  submitting dispositions to the FBI only twice a year. In response to  noncompliant audit findings, states are required to submit a corrective  action plan to the FBI describing how the state plans to come into  compliance with audit requirements.
section_title: Challenges Faced by State Criminal Justice Agencies
paragraphs: In addition to the lack of national standards that govern the submission of  dispositions from state criminal justice agencies and repositories to the  FBI, our discussions with officials from our 4 case study states, BJS,  SEARCH, and the National Center for State Courts—and our review of  reports that these entities published—identified three challenges as most  frequently cited as negatively affecting the completeness of state criminal  records: (1) prosecutors not reporting final decisions in a case, (2) lack of  official arrest records when law enforcement cites and then releases an  individual, and (3) case numbers not transferring accurately among local  agencies. DOJ’s grant funding and other assistance programs have  helped states address these challenges.
Prosecutors not reporting final case decisions: According to officials  from DOJ and our case study states, one of the major contributors to  arrest records not having final dispositions occurs when prosecutors  decline to prosecute an individual but do not report this information to the  state’s central records repository. Prosecutors may decline to prosecute  an individual for a variety of reasons, such as insufficient evidence or the  low severity of the offense. Prosecutors also have the authority to offer  plea bargains, which reduce the seriousness of a charge in return for a  guilty plea or other forms of cooperation with the prosecution. Prosecutors  cited excessive workload and the lack of technology and human  resources as reasons why they did not report declinations to prosecute,  according to a 2005 BJS survey.decisions that can lead to an arrest record without a disposition include  decisions to consolidate a case into another case and to close a case that  has become dormant because of insufficient evidence or witnesses,  among other things.
When not reported, other prosecutorial  Fingerprints not collected under cite-and-release practices:  Incomplete criminal history records can also result from law enforcement  officials citing and releasing individuals without formally arresting and  fingerprinting them. This can result in state and local courts submitting  dispositions to a state’s central records repository without a  corresponding arrest record because the individual was never  fingerprinted. Typically, states allow citation and release for misdemeanor  offenses, but according to the National Conference of State Legislatures,  at least 2 states permit citation and release for some felonies. Cite-and- release policies can result in a significant number of incomplete criminal  history records. For example, a senior official from 1 of our case study  states said that cite-and-release arrests were one of the practices that  contributed to approximately 1.6 million dispositions that are not linked to  an arrest, which the state keeps in an independent data system and is  working to match up with the corresponding arrest records.
According to the National Conference of State Legislatures, cite-and- release arrests are a common practice for law enforcement agencies and  are useful to these agencies. These arrests can lower jail populations and  reduce costs by releasing arrestees who pose little risk to public safety.  According to officials from our 4 case study states and a national focus  group convened by the National Center for State Courts, mobile “live  scan” devices that digitally record and electronically transmit fingerprint  images or live scan devices in courtrooms could help improve the  completeness of criminal history records. Courts can use such devices to  immediately fingerprint individuals upon arrival in court for the citation  hearing. However, a senior official from one of our case study states and  a senior official from the National Center for State Courts said that local  criminal justice agencies face significant barriers—such as the lack of  resources and difficulty of integrating live scan devices into existing  courtroom procedures.
Case numbers not transferring among local agencies: Senior officials  in 3 of our 4 case study states said that they faced challenges in  transferring unique case control numbers among local criminal justice  agencies—such as law enforcement agencies, courts, prosecutors, and  the state record repository. Law enforcement typically generates the case  control number when an individual is arrested and fingerprinted, and  some states use the number to associate all subsequent criminal history  information from criminal justice entities with the original arrest event.  According to the state officials, the process to transfer the case control  number among local criminal justice entities may be manual and therefore  prone to errors or occur inconsistently. For example, officials from 1 state  said that certain local agencies that make arrests write case control  numbers on a white board, and the numbers do not always get  transferred to prosecutors and courts. A disposition-reporting focus group  convened by the National Center for State Courts proposed that local and  state governments develop policies that identify the case control number  and specify that this number should be maintained in all criminal justice  systems.
DOJ’s assistance programs—such as best practice dissemination  programs and NCHIP grant funding—have helped states address  challenges in providing complete criminal records. For example, sections  of the Quality Assurance Program’s checklist address state practices  regarding prosecutors failing to report declinations to prosecute, cite-and- release arrests, and the transfer of case numbers among local agencies.  Further, the National Center for State Courts’ web-based tool kit contains  information on the impact that each of these challenges has on the  completeness of criminal records as well as potential solutions to  overcome these challenges. Additionally, states have used NCHIP grants  to help overcome these challenges. For example, in fiscal year 2013, 1  state received NCHIP grant funds to implement the electronic transfer of  prosecutorial case management information to the state’s court system,  and another state used NCHIP grant funds to automate transferring the  case control number from some prosecutors to the courts.
section_title: The FBI and OPM Have Not Yet Determined How the FBI Could Use Information Obtained during OPM Security Clearance Investigations to Help States Update Criminal Records
paragraphs: In June 2010, the Compact Council and the FBI’s Advisory Policy Board  approved the practice of having the FBI supply states with source  documents that OPM personnel obtain during their investigations of  applicants for federal employment and security clearances. The  information contained in these source documents, such as arrest  dispositions, could help to enhance the completeness of state criminal  history records. The agencies did not enter into a formal written  agreement for this information-sharing arrangement, but it was discussed  and recommended in Advisory Policy Board meeting minutes.
According to FBI and OPM officials, each week, OPM is to provide  criminal justice-related information to the FBI, such as disposition  information related to an applicant’s arrest records. The FBI would then  review the information and send any relevant information to state record  repositories so that the states could decide whether to update their  records. OPM began sending this information to the FBI in January 2011.  According to OPM officials, OPM sends approximately 3,500 to 4,500  investigative records to the FBI each week, with each record representing  state or local criminal record information obtained by an OPM  investigator.
According to officials from the FBI’s Criminal Justice Information Services  Division, the FBI has not been able to utilize any of the information that  OPM has provided since 2011 because OPM has not provided the source  documents uncovered during OPM’s investigations, such as a copy of a  court record. Instead, OPM provided the FBI with information derived  from its final investigative reports, which can include the results of OPM  investigators’ phone or in-person conversations with court officials or  other state criminal justice officials, among other things. According to  OPM officials, OPM informed the FBI during briefings prior to when it  started sending information to the FBI that OPM investigators generally  do not collect source documents as part of their investigations and would  not be able to do this on a routine basis. OPM officials noted that there  may have been a misunderstanding with the FBI regarding the term  “source” as to whether the FBI required an original court record.
In October 2014, senior FBI officials said that they had had recent  discussions with OPM officials to determine what, if any, criminal record  information that OPM collects could be provided to the FBI to meet the  FBI’s requirement for source documents. A senior OPM official noted that  these discussions included an FBI request for OPM to change how it  provided the disposition information to the FBI to better support sorting of  the information. The official added that OPM’s initial assessment of the  FBI’s request was that it is most likely feasible. Further, the official noted  that OPM had been engaged in a dialog with the FBI regarding its request  and was researching the possibilities as the FBI further defined what it  needed from OPM. Prior GAO work has found that collaborative  activities—such as the one between the FBI and OPM—benefit from   By clarifying  agreeing upon decisions to achieve desired outcomes.what disposition information OPM will provide to the FBI and formally  agreeing on how OPM will provide it, the FBI would be able to forward the  information to states. This would allow each state to determine if the  information can be used to update their criminal history records.
section_title: Many States Did Not Fully Comply with Federal Requirements to Inform Individuals of Rights to Correct or Complete Their Criminal History Records
paragraphs: FBI audits of the states’ use of criminal history records conducted from  2011 through 2013 show that 44 states went through an audit within  these 3 years, and 31 of the 44 states (about 70 percent) had at least one  state agency that was out of compliance with federal regulations related  to applicant notifications. Specifically, the agency did not provide all of the  required notifications to a job or license applicant on the individual’s rights  to challenge and correct that person’s criminal history records.According to FBI audit management officials, state agencies did not  provide the required notifications primarily because the agencies were not  aware that they had to do so. According to federal regulations:
Officials at governmental institutions and other entities that are  authorized to submit fingerprints and receive FBI identification  records, including criminal history records, must notify the individuals  that their fingerprints will be used to check FBI criminal history  records.
Officials making the determination of suitability for employment or  licensing must provide applicants the opportunity to complete or  challenge the accuracy of information contained in the FBI records.
Officials making suitability determinations must also advise applicants  that procedures for obtaining a change, correction, or update to FBI  identification records are set forth in 28 C.F.R. § 16.34.
Officials making employment and licensing determinations should not  deny employment or licenses based on information in the record until  the applicant has been afforded a reasonable time to correct or  complete the record, or has declined to do so.
On the basis of our analysis of FBI audit results, the two notifications that  state agencies most frequently did not provide to applicants were (1) that  the applicant’s fingerprints would be used to check FBI criminal history  records, and (2) the process for changing or updating FBI records. For  each audit finding related to applicant notifications, the FBI is to make a  recommendation to the state that addresses the finding. The state in turn  is to respond in writing with a description of the state’s plans to address  the FBI’s recommendation, including how the state will correct its  practices to ensure compliance with the audit requirements. The Compact  Council or FBI may also require the state to provide additional information  or updates on the state’s progress in addressing the FBI’s  recommendations.
According Compact Council and FBI officials, the Compact Council and  the FBI have educated states on the applicant notification requirements  through different methods, including biannual Compact Council meetings,  a communication notice from the FBI to states in 2010, and during the  FBI’s triennial audit of states. Additionally, from May through August  2012, the Compact Council disseminated documents to states that are  affiliated with the Compact Council via e-mail and at FBI Advisory Policy  Board meetings that, among other things, describe (1) applicant rights to  challenge and correct their criminal records during a FBI record check,  and (2) the states requirement to notify applicants of these rights.FBI also published the information from these documents on the FBI’s  website. FBI officials noted that these documents have been widely  distributed to the states and are now provided as training tools during  audits. Therefore, the FBI expects that audit findings regarding the  provision of applicant notice may improve in the future.
Despite the FBI’s audit process and the FBI’s and Compact Council’s  efforts to educate states on the applicant notification requirements, FBI  audit findings show that states generally do not provide all of the required  applicant notifications. Specifically, the FBI finalized audits for 14 states  after August 2012—when the Compact Council disseminated the  documents to states—and 13 of the 14 states had at least one agency out  of compliance with the federal notification requirements. Internal control  standards note that an agency’s management should ensure that audit  findings are resolved, and that separate evaluations of control activities  that are designed to ensure compliance with regulations can be useful to  determine their effectiveness. reasons why states continue to fail to comply with applicant notification  requirements could help the FBI and Compact Council revise the  methods they use to educate states and achieve compliance, thereby  helping the FBI and states ensure that applicants are aware of their rights  to challenge and correct their criminal history records.
GAO, Standards for Internal Control in the Federal Government, GAO-AIMD-00-21.3.1  (Washington, D.C.: Nov. 1, 1999).
section_title: Private Company Criminal Record Checks Increasing; Companies Face Challenges in Obtaining Complete and Accurate Records
subsections: section_title: Number of Private Companies Conducting Criminal Record Background Checks Appears to Be Increasing because of Employer Demand
paragraphs: The exact number of private companies that conduct criminal record  checks, the number of checks conducted each year, and the number of  employers and industries requesting checks are generally unknown, but  appear to be increasing. According to a 2005 SEARCH report on criminal  background checks—the most recent report DOJ has funded on this  issue—in addition to a few large industry players, there are hundreds,  perhaps even thousands, of regional and local background check  companies that conduct criminal record checks. Management officials  from the FTC, EEOC, and two industry associations we contacted said  that they believed the industry is growing because of employer demand  for such checks. For example, according to a senior official from the  Consumer Data Industry Association—a trade association that represents  private background screening companies and other companies that  compile data on consumers—new companies that perform criminal  records checks are regularly forming due in part to employers’ increasing  demand for background checks, as well as the availability of online  criminal history records and publicly available databases of court records.
The 2005 SEARCH report also noted that private background check  companies can offer benefits that government agencies are not always  able to provide, including collecting and consolidating criminal justice  information from multiple sources, achieving faster response times than  state agencies, and creating reports that include non-criminal-justice  information. For example, in addition to an applicant’s criminal history  record, private companies can search other sources of information to help  employers assess an applicant’s suitability for employment, including  public records (e.g., real estate records, liens, and motor vehicle  registrations) and nonpublic information related to an individual’s credit  history (mortgages, auto loans, and student loans). Information provided  to us by a senior official from the Consumer Data Industry Association in  September 2014 cited similar benefits that private background check  companies can provide.
section_title: Private Background Check Companies That Compile and Use Criminal Record Information Are Subject to Federal Regulation
paragraphs: At the federal level, the Federal Trade Commission and the Consumer  Financial Protection Bureau are responsible for, among other things,  enforcing provisions of the Fair Credit Reporting Act. FCRA provisions  require consumer reporting agencies to maintain reasonable procedures  designed to avoid violations of requirements relating to information that  may not be contained in consumer reports, to limit furnishing consumer  reports to the permissible statutory purposes, and to assure maximum  possible accuracy of the information concerning the individual referenced  in the report. In addition, generally under FCRA, if an employer intends  to take an adverse action on an employee or applicant based in whole or  in part on a consumer report, the employer must first provide that person  with a copy of the report and a description in writing of that person’s rights  under FCRA.
According to senior FTC and CFPB officials, the agencies can take law  enforcement action in connection with alleged FCRA violations through  filing civil lawsuits in federal courts or through settlements with  companies. In addition, the FCRA contains provisions that generally allow  for a civil action to address certain FCRA violations to be brought in an  appropriate United States district court or another court of appropriate  jurisdiction within specified time frames.FCRA does not require private criminal background check companies to  submit to federal audits or provide disclosure statements on their  activities.
FTC officials stated that the  According to FTC officials, from fiscal years 2009 to 2014, the FTC  settled 16 complaints against private background screening companies  and employers for alleged FCRA violations involving information that  private background check companies reported. Of the 16 complaints, 4  included allegations that related to the use of criminal record information  in employment matters, such as not following reasonable procedures  when providing information to employers or not providing proper notice to  employees under FCRA provisions on how the information will be used.  For example, in 1 complaint, the FTC alleged that a private background  company failed to follow reasonable procedures to prevent the company  from including the same criminal offense information in a consumer report  multiple times, failed to follow reasonable procedures to prevent the  company from providing obviously inaccurate consumer report  information to employers, and in numerous cases provided the records of  the wrong person to employers. The FTC alleged that these failures led to  consumers being denied employment or other employment-related  benefits. The private background company agreed to settle with the FTC  by paying a civil penalty and is barred from continuing the practices that  the FTC identified as violating the FCRA.
CFPB also accepts complaints regarding consumer financial products  and services within its jurisdiction. According to senior CFPB officials, the  bureau forwards those complaints directly to the relevant companies for a  response. The CFPB officials noted that they have not received many  consumer complaints regarding the use of criminal history records in  employment background checks. The officials said that consumers may  not think to contact CFPB with such complaints because consumers may  think that criminal background checks are outside of CFPB’s jurisdiction  since the complaints are not “financial” in nature, even though CFPB has  had jurisdiction to enforce most FCRA provisions since 2011. As of  October 2014, CFPB had not brought any FCRA enforcement actions  against private companies related to the use of criminal history  information in employment background checks.
In addition, the Equal Employment Opportunity Commission enforces  Title VII of the Civil Rights Act of 1964, which makes it illegal to  discriminate in employment against a job applicant or employee on the  basis of race, color, religion, national origin, or sex. In general, there are  two ways in which an employer’s use of criminal history records may  violate Title VII—disparate treatment and disparate impact. Under  disparate treatment, an employer may face liability for discrimination if an  employer treats criminal history information differently for different  applicants or employees based on a Title VII-protected characteristic,  such as race or national origin. Under disparate impact, if an employer’s  neutral employment practice (e.g., excluding any applicant from  employment based on certain criminal conduct) disproportionately harms  individuals based on race or national origin, the policy will violate the law  if it is not job related and consistent with business necessity for the  position in question. For example, in fiscal year 2012, a large employer  agreed to pay a monetary penalty and make major policy changes to  resolve an EEOC administrative charge. Specifically, under the  company’s former background check policy, the company did not hire job  applicants for permanent jobs if the applicants had been (1) arrested and  were pending prosecution but were never convicted of an offense, or (2)  arrested or convicted of certain minor offenses. The EEOC investigation  revealed that this policy operated to disproportionately deny permanent  employment to African-Americans, and found reasonable cause to  believe that the policy was discriminatory under Title VII of the Civil Rights  Act of 1964.
In addition to enforcing the FCRA and Title VII of the Civil Rights Act of  1964, federal agencies have taken actions to help ensure industry  compliance with, and consumer awareness of, employers’ and private  background companies’ use of criminal history records. For example,  according to senior EEOC officials, because of the increased ease of  employers’ access to criminal history record information, in 2012, EEOC  updated its guidance on the use of criminal records in employment  decisions.use criminal history information—such as conviction records—to make  nondiscriminatory employment decisions and to ensure that the employer  uses the information for legitimate job-related purposes. For example, the  guidance states that the fact of an arrest does not establish that criminal  conduct has occurred, and excluding an applicant based on an arrest, in  itself, is not job related and consistent with business necessity. The  guidance notes, however, that an employer may make an employment  decision based on the conduct underlying an arrest if the conduct makes  the applicant unfit for the position in question.
The guidance provides information on how an employer may  The guidance also suggests examples of best practices that employers  may adopt on the use of criminal history information to make employment  decisions. One example from the guidance suggests that employers  develop a narrowly tailored written policy and procedure for screening  applicants and employees for criminal conduct that (1) identifies essential  job requirements and the actual circumstances under which an applicant  would perform the jobs, and (2) determines the specific offenses that may  demonstrate an individual is not fit for performing such jobs. In addition,  EEOC and the FTC jointly published employer guidance on how to  comply with federal requirements when an employer receives background  check information from private background screening companies. example, the guidance states that if an employer is going to get criminal  history and other background information from a company that is in the  business of compiling such information, the employer must first get an  applicant’s or employee’s written permission to do the check.
section_title: Private Companies Face Challenges in Obtaining Complete and Accurate Criminal Records
paragraphs: EEOC and FTC. Background Checks: What Employers Need to Know, 2012. accessible for private companies to search. The report added that states  and state agencies that do make their criminal history records accessible  to the public may only periodically update these records, which may affect  the information the private background companies access. Senior officials  from the Washington State Patrol who maintain the state’s criminal record  repository said that the state provides a subscription service to private  vendors for access to public records, but that the state updates the  records only every few months.
Also, private companies generally conduct name-based checks (versus  fingerprint-based checks), which can decrease the accuracy of the  information that the check produces. According to the Attorney General’s  2006 report, name-based checks can result in false positives—which can  occur when a person with a common name is associated with another  person’s records—and false negatives, which can occur when a search  misses a record because of errors in the record or in the information used  to initiate the search. According to CFPB officials, private background  check companies can use additional identifiers—such as date of birth— when conducting checks in order to help mitigate inaccurate search  results. We have also reported that using personal identifying information  in addition to an individual’s name when conducting a check, such as the person’s date of birth, can minimize false positives and false negatives.The stakeholders we contacted did not have information on the extent to  which private companies use additional identifiers when conducting  checks.
Related to the accuracy of private company checks, senior officials from  two private sector screening companies we interviewed raised concerns  about FCRA’s “contemporaneous notice” provision and its potentially  negative effects on employees and applicants. In general, under FCRA, a  consumer reporting agency that provides a consumer report for  employment purposes that contains public record information and is likely  to have an adverse effect on an individual’s ability to obtain employment  is required to either (1) notify the individual that is the subject of the report  that the public record information is being reported and of the name and  address of the person receiving the information or (2) maintain strict  procedures designed to insure that the public record information reported  is complete and up to date.employee that a company is reporting public record information to the  employer relieves the consumer reporting agency from ensuring that  criminal record information provided to an employer is accurate. The  officials did not have data or other information on how this provision has  affected employees and applicants.
section_title: Conclusions
paragraphs: Employers’ increasing use of criminal history record checks to determine  applicants’ suitability for employment, licensing, or volunteering  underscores the need for accurate and complete criminal records— including the final disposition of any criminal charges—and assurances  that applicants have an opportunity to challenge or correct potentially  inaccurate records. DOJ components have taken a range of actions to  help state and local agencies improve the accuracy and completeness of  their criminal history records and address related challenges. However,  the FBI Advisory Policy Board’s Disposition Task Force has been in  existence since 2009, but it has not issued best practices or national  standards for collecting and reporting disposition information or  developed a national strategy for improving the quality of disposition  reporting, as intended. Establishing a plan with time frames and  milestones could help the task force achieve its remaining goals and help  improve disposition reporting.
In addition, for more than 3 years, the FBI has received but not used  disposition information from OPM to potentially help states enhance the  completeness of their criminal history records. It is important that the FBI  and OPM clarify what disposition information that OPM collects will be  provided to the FBI and formally agree on how OPM will provide it. This  would enable the FBI to forward the information to states and allow each  state to determine if the information can be used to update their criminal  history records. Finally, although the FBI and the Compact Council have  taken steps to educate states on the regulatory requirement that they  notify applicants of their right to challenge and correct the information in  their criminal history records, FBI audits of state and local agencies’ use  of criminal history records consistently show that states do not notify all  applicants as required. Taking additional action to determine why states  do not comply with this requirement could help the FBI and the Compact  Council revise their educational programs and achieve compliance,  thereby helping to ensure that applicants are aware of their rights to  challenge and correct their criminal history records.
section_title: Recommendations for Executive Action
paragraphs: We are making the following three recommendations:
To improve disposition reporting that would help states update and  complete criminal history records, we recommend that the Director of  the FBI task the FBI Advisory Policy Board to establish a plan with  time frames and milestones for achieving its Disposition Task Force’s  stated goals.
To potentially help states enhance the completeness of their criminal  history records, we recommend that the Director of the FBI and the  Director of the Office of Personnel Management clarify what  disposition information OPM will provide to the FBI and formally agree  on how OPM will provide it. This would enable the FBI to forward the  information to states and allow each state to determine if the  information can be used to update their criminal history records.
To better equip states to meet the regulatory requirement to notify  individuals of their rights to challenge and update information in their  criminal history records, and to ensure that audit findings are  resolved, we recommend that the Director of the FBI—in coordination  with the Compact Council—determine why states do not comply with  the requirement to notify applicants and use this information to revise  its state educational programs accordingly.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to DOJ and OPM for their review and  comment. OPM provided written comments, which are reprinted in  appendix IV.
DOJ concurred with all three recommendations in this report in an e-mail  provided on January 13, 2015. In its written comments, OPM concurred  with the one recommendation that was directed to the office. Specifically,  the recommendation calls for the FBI and OPM to clarify what disposition  information that OPM collects as part of its background investigations will  be provided to the FBI and formally agree on how OPM will provide it.  OPM noted that preliminary discussions between the FBI and OPM  indicate that the disposition data in OPM’s reports of investigations may  be useful to the FBI in identifying records in its system that are lacking  dispositions but that contain a disposition at the local level. OPM added  that it has been researching internal technical strategies that will provide  specific data fields to the FBI that can be formatted and sorted in a  manner best suited to the FBI’s needs. OPM noted, however, that the  format in which OPM collects and maintains data is necessarily oriented  toward fulfilling the agency’s assigned mission. OPM added that it is not  tasked with the authority to perform criminal justice record management  functions for the FBI or criminal justice assistance functions for the states  and localities.
DOJ and OPM also provided technical comments, which we incorporated  in this report as appropriate.
As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the Attorney General, the  Director of the Office of Personnel Management, and appropriate  congressional committees. The report is also available at no charge on  the GAO website at http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-9627 or maurerd@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix V.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This report addresses the following questions:
To what extent do states conduct Federal Bureau of Investigation  (FBI) criminal history record checks for selected employment sectors  and what challenges, if any, do they face in conducting these checks?
To what extent have states made progress in improving the  completeness of criminal history records and what challenges remain  that federal agencies can help mitigate?
To what extent do private companies conduct record checks, what  benefits do they provide, how are they regulated, and what challenges  do they face?
Regarding the extent to which states conduct FBI record checks and  related challenges, we assessed the extent to which states were  conducting checks—either under state statutes or regulations, or under  federal authorities—for employment and volunteer positions covered by  three federal laws. Specifically, the National Child Protection Act of 1993,  the Edward M. Kennedy Serve America Act, and the Private Security  Officer Employment Authorization Act of 2004. We selected these laws  to represent a range of factors, including variation in whether the law  requires or authorizes (permits) an FBI record check, different  employment sectors covered (i.e., nonprofit, private, or public  employment), and variation in paid versus volunteer positions.
In addition, we conducted a web-based survey of officials at agencies  within all 50 states and the District of Columbia that maintain criminal  history records (state repositories) to determine the extent to which states  are conducting FBI checks for the employment sectors covered under the  three federal laws. We conducted the survey from July 29, 2014, to  September 30, 2014. We received a response rate of 94 percent—47  states and the District of Columbia—which we collectively refer to as  states throughout this report. Because this was not a sample survey, it  has no sampling errors. However, the practical difficulties of conducting  any survey may introduce errors, commonly referred to as nonsampling  errors. We took steps in developing the questionnaire, collecting the data,  and analyzing them to minimize such nonsampling error. To ensure our  survey questions were accurate, understandable, and unbiased, we  pretested our survey instrument with officials in 3 states—California,  Idaho, and Washington. An independent reviewer within GAO also  reviewed a draft of the questionnaire prior to its administration. We made  appropriate revisions to the content and format of the questionnaire after  the pretests and independent review. To ensure the validity of the  responses, we reviewed survey responses to ensure logic and  consistency in the responses.
We also analyzed federal regulations and procedures for conducting  criminal record checks and evaluated previously published reports from  SEARCH, the Department of Justice (DOJ), and other organizations  regarding the national availability of FBI background checks, solutions  proposed to address access challenges, and what challenges remain.supplement information obtained through our national survey and our  analysis of previously published reports, we conducted semistructured  interviews with management officials from repositories and courts that  maintain criminal history information in 4 case study states—California,  Florida, Idaho, and Washington—to determine the extent to which they  conduct FBI checks, any challenges faced with conducting checks, and  actions taken to address those challenges. We selected the 4 states  based on geographic location and other factors, including participation in  the Compact Council—the primary state and federal body for setting  policy regarding the interstate sharing of criminal history records for non- criminal-justice purposes.
We interviewed FBI officials with responsibility for managing the Interstate  Identification Index—the national system for the interstate sharing of  criminal history records—to determine any challenges employers face in  obtaining access to checks, and any challenges states face in  adjudicating records on behalf of employers. Further, we interviewed  management officials from the National Mentoring Organization, the  National Center for Missing and Exploited Children, the Corporation for  National and Community Service—the federal agency that oversees  service programs such as AmeriCorps and Senior Corps—and the  National Association of Security Companies—to obtain their views on the  availability of FBI criminal record checks and any challenges in obtaining  access. To better understand state legal and policy challenges regarding  access to background checks, we interviewed officials with SEARCH and  attended a November 2013 meeting of the Interstate Compact Council,  where a wide range of issues related to the non-criminal-justice use of  criminal history records were discussed.
Regarding the progress states have made in improving the completeness  of criminal history records and related challenges, we analyzed data that  states provided to DOJ via a survey from fiscal years 2006 through 2012  on the percentage of their arrest records that contained information on the  disposition of those arrests. We selected this time frame because 2006  was the year the Attorney General issued the criminal record background  check report and 2012 was the year with the most current available  survey data. To assess the reliability of the data, we analyzed the survey  methodology, interviewed DOJ officials who conducted the surveys, and  examined data for obvious errors. We determined that the data were  sufficiently reliable for the purposes of this report.
We also analyzed the results of the FBI’s most recent round of triennial  state audits, which include assessing the completeness of state records  and use of the records for non-criminal-justice purposes. As of January  2014, the FBI had finalized 44 state audits that the FBI conducted from  2011 through 2013. Further, we interviewed officials who maintain  criminal history records in our 4 case study states to determine  challenges they face in maintaining complete records and related  initiatives to improve record completeness. We also interviewed officials  from the FBI and DOJ’s Bureau of Justice Statistics (BJS) who have key  roles in providing access to national criminal history records and providing  assistance to states in maintaining complete records. In addition, we  interviewed officials from the National Employment Law Project to discuss  the potential impacts that incomplete criminal records have on job  applicants. Further, we interviewed officials from the Office of Personnel  Management (OPM) who collect disposition information as part of OPM  background investigations.
Regarding what is known about the role of the private sector in  conducting employment-related background checks, we reviewed  relevant sections of the Fair Credit Reporting Act (FCRA) and Title VII of  the Civil Rights Act of 1964, laws that govern the use of criminal history  records and that regulate background checks conducted by private  background screening companies. We analyzed SEARCH’s 2005 report  on the commercial sale of criminal justice record information and a 2006  Attorney General’s report on criminal history background checks.analyzed guidance prepared by the Equal Employment Opportunity  Commission on the use of criminal history record information in  employment decisions in order to better understand what challenges  employers, applicants, and consumer reporting agencies face in using  criminal history record information. We also interviewed senior officials  from associations that represent background screening companies,  including the National Association of Professional Background Check  Screeners and the Consumer Data Information Association, to determine  the role of private sector agencies in providing criminal history information  to employers. Further, we interviewed senior officials from federal  agencies that regulate these private sector entities—including the Federal  Trade Commission, the Equal Employment Opportunity Commission, and  the Consumer Financial Protection Bureau—to determine how the  industry is regulated as well as the size and scope of the industry.
We conducted this performance audit from October 2013 to February  2015 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
section_title: Appendix II: Examples of Federal Laws Authorizing State Access to FBI-Maintained Criminal History Records for Non-Criminal- Justice Employment and Licensing Purposes
paragraphs: Appendix II: Examples of Federal Laws  Authorizing State Access to FBI-Maintained  Criminal History Records for Non-Criminal- Justice Employment and Licensing Purposes Description  Allowing expenditure of funds for the Federal Bureau of Investigation (FBI) to be used for the  exchange of identification records, including criminal history record information, with officials of  state and local governments for purposes of employment or licensing if authorized by state  statute and approved by the Attorney General.
Allowing authorized employers to submit to the state identification bureau of a participating  state, fingerprints or other means of positive identification, as determined by the Attorney  General, of an employee or applicant for employment as a private security officer.
For conducting criminal history checks of individuals selected to serve in a position in which  the individuals receive a living allowance, stipend, national service educational award, or  salary through a program receiving assistance under the national service laws.
Permitting states to have in effect procedures requiring qualified entities designated by the  state to contact an authorized agency of the state to request a nationwide background check  for the purpose of determining whether an individual has been convicted of a crime that bears  upon that individual’s fitness to have responsibility for the safety and well-being of children, the  elderly, or individuals with disabilities.
Relating to promulgation of regulations by the Attorney General to address the minimum  standards for background checks, including criminal background checks, and pre-employment  drug testing for potential employees involved in the transportation of violent prisoners in or  affecting interstate commerce in the private prisoner transport industry.
Relating to the fingerprinting and criminal background check of individuals involved with the  provision to children under the age of 18 of child care services for each federal agency or  facility operated by the federal government that hires such individuals.
Provides for the Attorney General, upon request of the chief executive officer of a state, to  conduct fingerprint-based checks of the national crime information databases pursuant to a  request submitted by a private or public elementary or secondary school, a local educational  agency, or state educational agency, on individuals employed by or under consideration for  employment by, or otherwise in a position in which the individual would work with or around  children in the school or agency.
For use of officials of the National Indian Gaming Commission in conducting background  checks on key employees and primary management officials.
Upon the request of a state regarding the issuance of a license to operate a motor vehicle  transporting in commerce a hazardous material to an individual, the Attorney General shall  carry out a background records check, including a check of the relevant criminal history  databases, regarding the individual and notify the Secretary of Homeland Secretary regarding  the results.
The Commodity Futures Trading Commission is authorized to register futures commission  merchants, associated persons of futures commission merchants, introducing brokers,  associated persons of introducing brokers, commodity trading advisors, associated persons of  commodity trading advisors, commodity pool operators, associated persons of commodity pool  operators, floor brokers, and floor traders upon application in accordance with rules and  regulations and in the form and manner to be prescribed by the commission, which may  require the applicant, and such persons associated with the applicant as the commission may  specify, to be fingerprinted and to submit, or cause to be submitted, such fingerprints to the  Attorney General for identification and appropriate processing.
Description  A nursing facility or home health care agency may submit a request to the Attorney General  (through the appropriate state agency or agency designated by the Attorney General) to  conduct a search of the records of the Criminal Justice Information Services Division of the  Federal Bureau of Investigation for any criminal history records corresponding to the  fingerprints or other identification information submitted regarding an applicant for employment  if the employment position is involved in direct patient care.
The Under Secretary of Transportation for Security shall require that an individual to be hired  as a security screener undergo an employment investigation (including a criminal history  record check) under 49 U.S.C. § 44936(a)(1).
An association of state officials regulating pari-mutuel wagering, designated by the Attorney  General, may submit fingerprints to the Attorney General on behalf of any applicant for a state  license to participate in pari-mutuel wagering. In response to such a submission, the Attorney  General may, to the extent provided by law, exchange, for licensing and employment  purposes, identification and criminal history records with state governmental bodies to which  such applicant has applied.
Every member of a national securities exchange, broker, dealer, registered transfer agent,  registered clearing agency, registered securities information processor, national securities  exchange, and national securities association, shall require that each of its partners, directors,  officers, and employees be fingerprinted and shall submit such fingerprints, or cause the same  to be submitted, to the Attorney General for identification and appropriate processing. In  providing identification and processing functions, the Attorney General shall provide the  Securities and Exchange Commission and self-regulatory organizations designated by the  commission with access to all criminal history record information.
section_title: Appendix III: Summary of Selected Federal Trade Commission (FTC) Complaints and Outcomes Involving Criminal History Record Information, Fiscal Years 2009 through 2014
paragraphs: Summary of federal complaint  According to the FTC’s complaint, a private background company  failed to follow reasonable procedures to prevent the company  from including the same criminal offense information in a  consumer report multiple times, failed to follow reasonable  procedures to prevent the company from providing obviously  inaccurate consumer report information to employers, and in  numerous cases even included the records of the wrong person to  employers. The FTC alleged that these failures led to consumers  being denied employment or other employment-related benefits.
Outcome  The private background company agreed to settle with the FTC by  paying a civil penalty and is barred from continuing the practices  that the FTC identified as violating the Fair Credit Reporting Act  (FCRA).
According to the FTC’s complaint, a private background company  obtained, and provided employers with, information about job  applicants, including possible criminal records of applicants on the  National Sex Offender Registry. The FTC claimed the company  violated the FCRA by failing to use reasonable procedures to  assure maximum possible accuracy of the information and failing  to provide written notices to applicants that the company reported  public record information to prospective employers that may  adversely affect the applicant’s ability to obtain employment.
The private background company agreed to settle with the FTC by  maintaining reasonable procedures to (1) assure the maximum  possible accuracy of information provided in background checks,  and (2) notify consumers when the company has provided public  information about them that is likely to have an adverse affect  upon their ability to obtain employment.
According to the FTC complaint, a private background company  offered an online service allowing employers to purchase  background reports that contain, among other information, arrest  and conviction records. The FTC claimed that the background  company violated several provisions of the FCRA, including failure  to maintain reasonable procedures that the information provided  was used for a permissible purpose and failure to use reasonable  procedures to assure maximum possible accuracy of information  provided to employers.
The private background company agreed to settle with the FTC  and pay a civil penalty. In addition, the settlement barred the  private background company from continuing the practices that  the FTC identified as violating the FCRA.
According to the FTC’s complaints, two employers contracted with  a private background company to conduct background checks  that included, among other information, criminal history records.  The employers used the results of the background checks as a  basis for hiring applicants or retaining employees, and throughout  the course of a year, took adverse action against numerous job  applicants by denying employment to them. The FTC claimed that  the employers violated the FCRA by, among other things, failing  to provide the employees and applicants with notices before  taking adverse actions. Providing such notices would have  allowed the applicants and employees to dispute the accuracy of  the background checks.
The two employers agreed to settle with the FTC and both paid  civil penalties. In addition, the settlements required the employers  to provide FCRA-required notices to applicants and employees in  the future. The settlements also contain record-keeping and  reporting provisions to allow the FTC to monitor compliance.
section_title: Appendix IV: Comments from the Office of Personnel Management
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
paragraphs: David C. Maurer, (202) 512-9627 or maurerd@gao.gov.
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Eric Erdman (Assistant Director),  Joanna Chan, Willie Commons III, Charlotte Gamble, Eric Hauswirth,  Brandon Jones, Jill Lacey, Eileen Larence, Winchee Lin, Linda Miller,  Jessica Orr, Martene Rhed, Tovah Rom, and Cynthia Saunders made  key contributions to this report.