BRB's Public Records Blog

South Dakota Raises Fee for Court Record Searches

On March 20, 2012, the South Dakota Governor signed HB 1058. The new law will increase search fees charged to view or obtain Circuit Court records. The current $15.00 fee will increase to $20.00 as of Jan. 1, 2013, but the fee would return to $15.00 effective July 1, 2017. (HB1058 was actually a compromise - the original bill had an increase of $10.00.) The additional funds will be used to offset last year's budget cuts and to support an upgrade of the court's computerized case management system.

The $20.00 fee is for a search of statewide criminal and civil records, and also is applicable for local onsite requests to check individual court case files. View the bill at http://legis.state.sd.us/index.aspx.

San Luis Obispo County, CA

Per PRRN Member Judith Smith, the Executive Director of the San Luis Obispo Superior Court - Ms. Susan Matherly - has simply had enough. Ms. Matherly has had it with all the public record search firms hired by employers to check criminal records of local residents that apply for jobs. On March 14th she announced at a local Bar Association luncheon that she was shutting down the public access terminal to background screening firms. And on Monday March 19th she did it. The IT staff removed the public access computer and put it in a locked room to be accessible only by attorneys and their investigators.

To better understand Ms. Matherly's logic, consider the following summarized statements she also made at the March 14th luncheon, as reported by Ms. Smith:
Public access information was never intended for background screeners. Background screening companies just make people not get hired. Employers shouldn't be using background screening companies, but rather should be using the DOJ/LiveScan [the FBI]. There are penal codes stating that the type of research that background screening researchers are doing is illegal. [But she refused to mention what these laws are.] Background screening companies and researchers are not trained to know what they are doing. There is no identifying information in the computer to know if a researcher has indentified the correct person. [Note: The terminal does display a full name and the DOB.]

At present according to Judith Smith, Ms Matherly has instructed the Superior Court Clerks to do the following:
Only attorneys and their investigators now have access to the locked room where the public access computer with access to the public records now resides.
Clerks are not allowed to provide dockets to anyone except to the defendant or their attorney of record.
Record searchers may only provide clerks with 10 names a day.
Clerks may only provide very limited information (for free) if there is only one recent case. Only data provided are the case #, violation and disposition date, the charge and disposition for convictions. If a charge was dismissed the clerk will not inform the requester. Also, no information is provided on sentencing or parole violations. However, the researcher can obtain this information for a $15.00 fee.
If a subject name has more than one case, the clerks will only provide the case numbers. The researchers then must order each file to review for a $15.00 fee per case.

For those interested:

Judith Smith can be reached at Judie@jhsmithconsulting.com.

The presiding judge and Ms. Matherly's supervisor is Judge Barry LaBarbera.

Ms. Matherly can be reached at:

Ms. Susan Matherly
Executive Director, Superior Court
1050 Monterey Street
San Luis Obispo, CA 93408
susan.matherly@slo.courts.ca.gov
805-781-5421

SSN Randomization Issuance Begins

June 24th, 2011 was the last day the Social Security Administration (SSA) assigned a Social Security Number (SSN) based on the numeric order within a state's allocation of the first 5 digits. All unassigned numbers within the numeric sequence have now been placed in a random pool. Effective June 27, the assignment of a new SSN is much like a lottery; a random number is drawn from the unassigned pool of 420 million numbers  available for assignment.
 
For example, the Series of 048-15-xxxx was assigned to CT and was used to issue new SSNs. Effective June 27, all of the possible unassigned numbers within that Series have been assigned to the random pool. Therefore someone in any state or an immigrant coming into the country could be assigned an SSN in the 048-15 series this year or any year in the future. There are 755 Series groups that were in the process of being assigned as of June 2011. There are over 75,000 groups have had all possible numbers within the group previously assigned. 

For years employers, investigators and background screening firms have used software with the assigned SSN groups and corresponding state/date range to validate the state and year of issuance an SSN. The fact that the SSA will no longer provide the ability to validate newly issued numbers has upset quite a few businesses and employers. However, these validations will still be useful, although they will diminish in value over time. Most people entering the workforce were assigned an SSN well before June 27, 2011. The primary people entering the workforce with a new randomly assigned SSN will be immigrants.
 
The Social Security Administration will continue to provide opportunities for direct name based SSN verification. Internet based verification services include:
The Social Security Number Verification Service (SSNVS)  which is free to use for wage reporting purposes
eVerify
Consent-Based SSN Verification Service (SBSV)
There are stipulations. For example, the cost for SBSV is $5,000 to sign-up and $5.00 per verification.

For questions about the randomization process, email ssn.randomization@ssa.gov or visit www.ssa.gov/employer/randomization.html.

Battle Over NC Court Criminal Record Access Continues

As previously reported, the North Carolina Administrative Office of the Courts (NCAOC) ceased providing the licensees of the ACIS Daily Criminal Extract with the criminal case details. Court details now must be accessed in person or by using an old, antiquated technology system called The Green Screen. This move altered the way tens of thousands of criminal records are accessed in North Carolina.
 
In response to the NCAOC's mandate, several vendors filed suit in the Wake County, NC. The case is 11 CVS 1548 COURT VENTURES INC. and HIREASE INC (plaintiffs)   v. NORTH CAROLINA ADMINISTRTAIVE OFFICE OF THE COURTS and JOHN W. SMITH, II (in his capacity as Director of the North Carolina Administrative Office of the Courts) (defendants).
 
An point of contention in this court case has led to the introduction of legislation in North Carolina - Who is the custodian of these court records? Evidently the county clerks are saying that the AOC is the custodian of the records, and the AOC is saying the county clerks are the custodians. Once it is determined who is the custodian, then the case will likely focus on the contractual obligation to provide public records.
Below are further details.
 
Referencing CVS 1548, in section 61 of the NCAOC's First Defense Response, the defendants deny that they are the custodians of any public information in the ACIS database, although they admit they maintain the database. The defendants allege that the 100 clerks of courts are the custodians of the records. In Section 5 the AOC denies that "this is a public record action in that the relationship between plaintiffs and AOC are governed by contracts entered into pursuant to N.C Gen Stat. § 7A-109."
 
On April 6, House Bill 859l regarding AOC/Custody and Availability of Court Records was filed in the NC State legislature. The bill is meant to "...clarify that the Administrative Office of the Courts is a custodian of court records...those court records are a public record..."  The bill re-writes portions of section 7A-109.
 
The phone number for the Wake County Clerk of Court is 919-792-4000. The current version of the House Bill is viewable at:
www.ncleg.net/Sessions/2011/Bills/House/PDF/H859v1.pdf.  

Reminder - SSNs Soon to be Issued Randomly

The Social Security Administration has decided it will no longer issue new SSNs with a logistical sequence of numbering that indicate the state of issue and year of issue.
 
Effective June 25, 2011, all new SSNs will be issued on a purely random basis. The SSA will eliminate the geographical significance of the first three digits, currently referred to as the area number (assignment to individuals in specific states). The significance of the fourth and fifth digits of the SSN for validation purposes will also be eliminated. Randomization will still exclude area numbers 000, 666 and 900-999.

Thus, the existing tables and validation services will be frozen in time - they can be used for validation of SSNs issued prior to the randomization implementation date, but not going forward.

If you have a question, email to ssn.randomization@ssa.gov or visit  www.ssa.gov/employer/randomization.html.

One general question often asked about SSNs is "Under what circumstances will the SSA issue a different number to a number holder?"  The SSA reports it will do so only per one or more of the following conditions:
Sequential numbers assigned to members of the same family are causing problems;
More than one person is using the same number;
An individual has religious or cultural objections to certain numbers or digits in the original number.
A victim of identity theft continues to be disadvantaged by using the original number.
Situations of harassment, abuse or life endangerment (including domestic violence).
The web site listed above gives specific references to documentation of these issues.
 

More States Step Up Fight Against Diploma Mills

On March 24, 2011, Idaho's "Anti-Diploma Mill" bill was unanimously passed by the Idaho State Senate. To read a recent article about this and efforts by other states, visit the Accredibase Reports web page at www.accredibase.com/report.

Accredibase Report for 2011 Reveals 48% Increase in Fake Universities

The 2011 Annual Accredibase Report of diploma and accreditation mill activity has revealed an astounding 48% increase worldwide in the number of known diploma and accreditation mills in the past year alone.  As the Internet is the primary home for these bogus education and accreditation providers, little action is taken to stop them from helping unscrupulous candidates deceive unsuspecting employers. The Accredibase Report examines the current status of the diploma mill situation and considers what can be done to protect the public and businesses.

U.S - The King of Diploma Mills
According to the 2011 report, the U.S. remains the world's fake college capital. This year has seen a 20% increase in known diploma mills in the US, with the number rising from 810 to 1,008. While more than 40% percent of the diploma mills operate in California, Hawaii, Washington and Florida, the Report reveals that District of Columbia has seen the sharpest increase among US states with 74%, rising from 19 to 33 mills over the past year. High school diploma mills are of particular concern in the United States and appear to be a growing segment in this unscrupulous market as well.

To view or download the Report, visit  www.accredibase.com/report.

Employment Screening Background Checks Annual Criminal Statistics

Various organizations publish their annual criminal “hit rates,” showing how many applicants subject to background screening had criminal records or other discrepancies. On one hand, these figures are extremely valuable because they confirm an already compelling case that background checks are critical for any employer that wants to exercise due diligence and protect its workforce and the public. In fact, as Employment Screening Resources has been advising employers for sometime, without a system of pre-employment screening, it is a virtual statistical certainty that an employer will hire someone with a serious issue that has the potential to create a legal and financial nightmare or cause workplace violence.

On the other hand, as with all statistics, these yearly reports need to be taken with a grain of salt. First, not all criminal records come as a surprise to employers. Given the number of Americans with some sort of criminal records, many employers are still willing to hire someone for an appropriate position, providing the applicant was not dishonest in the application. In fact, certain industries by nature of their workforce are more likely to draw upon a pool of potential applicants that may tend to have higher levels of past criminal conduct. Examples might be construction or firms that provide employment for entry level workers.

A statistic that would be very interesting but much harder to obtain is how many criminal records were discovered where the applicant was dishonest about past conduct. Of course, that gets complicated by the fact that an applicant may have been genuinely confused about what is or is not reportable on an application.

A related issue is that not all criminal records have the same impact. A criminal record for underage drinking is not in the same league as a conviction for armed robbery.

In reviewing these types of statistics, employers also need to keep in mind that not all of the criminal records located are job related. Employers should NOT automatically deny employment to an applicant with a criminal record unless there is a business justification that takes into account the nature and gravity of the crime, the nature of the job and the age of the crime. As noted in a recent blog on this site, the EEOC takes the position that the overuse of criminal records without a business justification can create a disparate impact, and therefore can be discriminatory. See: http://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records

Finally, it is difficult to draw firm conclusions from the statistics without knowing the search methodology. Depending on how the searches were conducted, it is entirely possible in fact that such annual statistics may even understate the number of criminal records applicants had. The most accurate criminal record searches are done by accessing information directly from the county courthouse level, either by physically going the court, or by use of the court computer system that is the functional equivalent of going to the courthouse. That is the method used by Employment Screening Resources. Databases on the other hand, although much wider in scope, are not nearly as accurate, do not have all courts or jurisdiction, may not be updated, or may not contain sufficient identifiers.  To the extent any searching was done by the use of databases, the numbers could potentially be understated.

The bottom line: These statistics are an excellent reminder that employers need to be careful in hiring. However, as with most statistics, there is more to the story. Contact Employment Screening Resources for additional information.

Hamilton County Courts, Indiana

In late September, 2009, the Circuit & Superior Courts of Hamilton County Indiana switched their case file management to the Odyssey case management system provided by the Indiana Supreme Court. As a result, online access to the court record index is now available at http://mycase.in.gov/default.aspx.

Previously, courts place the record index with https://www.doxpop.com. While Hamilton County records may still be accessed from Doxpop's subscription system, the range of records date from 01/1987 to 9/21//2009. Thus, since the switchover, new cases and updates to existing cases for Hamilton County are no longer updated on Doxpop.

Hawaii Latest State to Put Limits on Use of Credit Reports

Over the Governor’s veto, the Hawaiian legislature passed a new law effective July 1, 2009 that put limits on the use of employment credit history or credit reports unless it “directly related to a bona fide occupations qualification,” or falls under another exception.

The bill amends the Hawaiian Fair Employment Practices Act by making it an unlawful discriminatory practice for any employer to refuse to hire or employ, continue employment or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification. Hawaii Revised Statues Sec. 378-2(8).

The new law also indicates that in terms of hiring in the first place, the employer can only inquire into the credit history or credit report on a prospective employee only after there has been a conditional job offer, and only if the information is directly related to a bona fide occupational qualification.

The law makes exceptions for employers that are expressly permitted to inquire into credit history or a credit report by federal or state law, financial institutions that are insured by a federal agency or to managerial or supervisory employees. The law sets out a specific definition of what constitutes a “Managerial” or “Supervisory” employee.

The Governor’s strong veto message (http://www.capitol.hawaii.gov/session2009/Bills/GM813_.pdf ) argued that employers should not be subject to, “another restriction on employers that could impact their ability to protect the safety and financial security of their workplaces.” The Governor indicated that credit reports can have value in particular situations and that Congress has regulated the use of credit reports in the Fair Credit Reporting Act (FCRA).

For a copy and history of the new law, see: http://www.capitol.hawaii.gov/session2009/lists/measure_indiv.aspx?billtype=HB&billnumber=31

It should be noted that even without the new law, an employer that obtains a credit report for employment does NOT obtain a credit score or FICO number. A credit score is not part of an employment credit report since it is not a valid predictor of job performance. However, as noted in an article in USA Today where ESR President Lester Rosen was quoted, credit reports have been strongly criticized for preventing some consumers from obtaining employment. http://www.usatoday.com/news/washington/2009-02-12-creditcheckinside_N.htm

The California legislature, in fact, passed a law in 2008 that would have severely restricted employment credit reports, but it was vetoed by the Governor and did not become law. The new Hawaii law is similar to a restriction passed in the State of Washington in 2007, that required a credit report to be substantially job-related and for the employer's reasons for the use of such information to be disclosed to the consumer in writing. http://www.esrcheck.com/newsletter/archives/June_2007.php#T2

It is likely that more states will be reviewing the use of credit reports and employment in the future.

This posting was provided by ESR Newsletter and Legal Update and Lester Rosen, Atty at Law.