Four years ago, ESR reported an investigation by the Dallas News concerning inadequacies in the statewide criminal database maintained by the Texas Department of Public Safety (TDPS). That database is widely use by law enforcement, employers and consumers, among others, and is also used to perform screenings on teachers, volunteers and caregivers that work with children, the sick and the frail. The original article can be found in the ESR newsletter archives at: http://www.esrcheck.com/newsletter/archives/March_2005.php#T2.
In that article, ESR reported that according to the newspaper article, the Texas database was used over 3 million times a year, but it only had 69 percent of the complete criminal histories records for 2002.
The Dallas News revisited the story in August 2008 and found, essentially, that nothing had changed. For 2006, the database still only had 69% of the state’s criminal history. The story noted that only 106 out of Texas’ 254 counties reported electronically, and even then there appeared to be glitches or communication issues with various state law enforcement agencies. Other problems had to do with keeping trained personnel or officials in smaller jurisdictions forgetting to report the status of a case.
This story underscores a common issue for employers performing background checks. Searches of criminal databases can be problematic. ESR recommends that employers keep the following in mind when utilizing criminal databases;
1. Database searches available to private employers are NOT FBI database searches. FBI records are only available to certain employers or industries where Congress or a state has granted access. Searches offered by background firms are drawn from government data that is commercially available or has been made public.
2. Although multi-jurisdictional and statewide databases searches can be extremely valuable because they cover a wide area and access millions of records, employers are well-advised to use them primarily as a research tool or lead-generator and not as a substitute for a hands-on search at the county level under any circumstances (or the functional equivalent of a county level search). The best use is to indicate additional places to search in case a record is found in a jurisdiction that was not searched at the county court level.
3. In addition, not all states have a database that is available to employers. In some instances, the databases that are available have limited information. Therefore, the value of these searches may be very limited in some states. An employer should carefully review what information is available in their state and not merely depend upon a database search.
4. Databases in each state are compiled from a number of sources. There are a number of reasons that database information may not be accurate or complete. Because of the nature of databases, the appearance of a person’s name on a database is not an indication the person is criminal any more than the absence of a name shows he/she is not a criminal. Any positive match MUST be verified by reviewing the actual court records. Any lack of a match is not the same as a person being “cleared.” However, a database is a valuable tool in helping employers cover a wider area and know where to search for more information.
5. The search is based upon matching the name and the date of birth in order to eliminate computer matches that are not applicable. Note: In some states, there is no, or limited, date of birth information. The database description will indicate where the records do not contain a date of birth, which means a search of that state will have little or no value.
6. The best practice is for all possible “hits” to be reconfirmed at the county court level to insure whether information is accurate, complete and up to date at the time it is reported, per FCRA Section 613. Also, keep in mind that a criminal record should not be used to automatically disqualify an applicant, without taking into account the EEOC rules as to what is a job-related criminal offense.