Public Records in a Digital Age – The Right to Know versus the Right to Privacy
Author: Andrew Hesner
Over the past several years, courts throughout the United States have been redacting dates of birth and other Personal Identifiable Information (“PII”) from publicly accessible online criminal records. While this was mainly implemented to prevent hacking and to ensure consumer privacy, it has been met with much criticism from Due Diligence and Background Screening providers. The main argument being that these newly passed laws make it difficult to readily access potentially adverse public record information that could impact a business deal/merger or hiring decision.
A good example of where this has occurred is California. Most counties in California have now fully redacted PII from online criminal records – this includes Social Security numbers, dates of birth, addresses, and any data that could be used to link a record to a particular person. When California first enacted these privacy laws, there were workarounds to confirming if a criminal record applied to your subject. Calls could be made to the courts and respective District Attorneys’ offices to confirm dates of birth. However, this was short-lived and court representatives are now not authorized to confirm such information with third parties.
California is also not the only state to revamp its consumer privacy laws. In May 2021, Virginia took a similar stance and has started the process of redacting full DOBs from its criminal records. Recent media reports also indicate that Colorado is in the process of bolstering its privacy acts, and Michigan also recently proposed several amendments that will redact DOBs from court records, effective April 2022. It should be noted that as part of the new Michigan amendments, if passed, Due Diligence providers may have to become authorized to access PII and will need to provide consent from the subject of the investigation.
So, how are Due Diligence providers and Background Screeners handling these changes? Many providers are still trying to understand the new privacy laws, as many of the laws are vague and are ever evolving. Some have also called on the courts to alter the privacy laws. For example, the Professional Background Screening Association (“PBSA”), a nonprofit that represents background check providers around the country, reportedly authored a letter to the Michigan Supreme Court in 2021 detailing the negative impacts of the new amendments.
“Background checks are a critical component of the employment and rental process,” the letter read. “Employers, property managers, and consumers alike depend on our members to search public records to determine whether a particular record belongs to a candidate being considered for employment or housing.”
As a result of these new laws, criminal records must now be viewed like civil records, in that more resources and analysis must be conducted to determine if a record applies to your subject. Luckily, Subrosa has a team of highly trained and experienced investigators who can develop alternatives to handle the redaction of PII. We also closely monitor privacy laws throughout the country to keep our clients compliant and informed with the most up-to-date changes. Additionally, we coordinate with local third-party research vendors to obtain information as needed.
So, what can clients do to deal with these changes? To start, clients can start background checks earlier to make up for delays in the research and due diligence processes. Clients should also obtain signed consents from all subjects, and they should gather as much information as possible, including middle names, address and employment history, and basic family details.