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August 26, 2012

Data collectors threaten to challenge criminal records law

Law allows people to shield years-old criminal histories

Maureen Hayden CNHI

INDIANAPOLIS — Private companies that buy and sell court records used in background checks are threatening to challenge a state law that allows people with years-old, low-level arrests to shield their criminal histories from employers.

They contend the law violates constitutional protections on free speech and may overstep federal rules on what states can regulate when it comes to collecting and disseminating information used to do employment screening and other background checks.

Chris Lemens, general counsel for the private data collecting company, backgroundscheck.com, told members of legislature’s Criminal Law and Sentencing Policy Study Committee that the state needs to rewrite the law or face a legal challenge in court.

During a committee hearing Thursday, Lemens said he objected to a portion of the law, slated to go into effect next year, that would penalize private data collectors for selling criminal records that had been sealed off by a court order. The law would also penalize those data collectors for providing background information that was inaccurate or incomplete.

Lemens was joined in his objections by Luke Rollins, a government affairs manager with Reed Elsevier, one of the world’s biggest data collectors and the parent company of the information giant, Lexis-Nexis Inc.

Private data collectors buy and sell millions of criminal records, creating massive databases that they argue are not easy — or inexpensive — to keep current.

Lemens said Indiana’s law is “much broader” than the laws in other states that restrict access to criminal records that have been sealed or expunged by the court.

The law to which they object was passed in 2011. Informally dubbed the “second chance” law, it allows Indiana residents with years-old, low-level arrests to get a court order to shield that information from the public view, including potential employers. The records are still accessible to law enforcement.

The law only applies to arrests and/or convictions for misdemeanors and class D felonies, the lowest felony level in Indiana. The criminal history can only be cleared with a court order after certain conditions are met, including a waiting period of five or more years, and no additional arrests or convictions.

Since the state law was passed, more than 1,700 people have sought and obtained court orders sealing their criminal records.

State Rep. Jud McMillen, a Republican from Brookville, and strong supporter of the “second chance” law said he doesn’t think his fellow legislators are interested in scrapping the law. “I don’t think we’ll see the legislature attempt to retrace our steps on this,” McMillen.

But what he does think may happen is that the legislature will move toward a stronger law, that would allow people with low-level, non-violent offenses from years past to have those charges expunged — totally erased from the record, not just shielded from public view.

“I think we’re ready for an actual expungement law,” said McMillen, a former prosecutor.

State Rep. Ralph Foley, a Martinsville Republican who’s retiring from legislature this year, said the “second chance” law was intended to make it easier for people with years-old, low-level offenses on their record to get a job.  He said it fits in with the state’s constitution: “It says the purpose of our criminal justice system is to restorative not vindictive,” Foley said. “We’re supposed to be working toward integrating people back into society and making them taxpayers again.”

Objections to the state’s “second chance” law comes at a time when private data collectors that supply information for employment background checks are coming under more scrutiny.

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

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

In April, the U.S. Equal Employment Opportunity Commission issued new guidelines to employers that use criminal records as part of their background checks. The EEOC warned employers against relying on the accuracy of information supplied by third-party data collectors, saying there was a high error-rate in that information.

Maureen Hayden is the Indiana Statehouse bureau chief for CNHI, the parent company of the Tribune-Star. She can be reached at maureen.hayden@indianamediagroup.com.

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