Written By ESR News Blog Editor Thomas Ahearn
On February 17, 2022, California Senate Bill 1262 (SB 1262) was introduced by Senator Steven Bradford (D-35th District) to require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s driver’s license number or date of birth, or both.
Existing law requires a clerk of the superior court to keep an index of any action or proceeding filed in the court and also requires a separate index for plaintiffs and defendants in civil actions and for defendants in criminal actions, according to SB 1262, which would amend Section 69842 of the Government Code to read:
The clerk of the superior court shall keep indexes to ensure ready reference to any action or proceeding filed in the court. There shall be separate indexes of plaintiffs and defendants in civil actions and of defendants in criminal actions. The name of each plaintiff and defendant shall be indexed and there shall appear opposite each name indexed the number of the action or proceeding and the name or names of the adverse litigant or litigants. Publicly accessible electronic indexes of defendants in criminal cases shall permit searches and filtering of results based on a defendant’s driver’s license number or date of birth, or both.
Consumer reporting agencies (CRAs) that conduct background checks usually search court records for a date of birth (DOB) or driver’s license number along with the subject’s name so they can be sure they are looking at the right records to comply with the accuracy requirement under the federal Fair Credit Reporting Act (FCRA).
However, a California Court of Appeals ruled in All of Us or None v. Hamrick in May 2021 that a DOB and driver’s license number cannot be used to identify an individual when searching a court’s electronic criminal index. The ruling – based on state law California Rules of Court, Rule 2.507 – may impact most California state courts.
In July 2021, the Professional Background Screening Association (PBSA), a non-profit organization representing the background screening industry, and the Consumer Data Industry Association (CDIA), the voice of the consumer reporting industry, submitted a letter to the California Supreme Court in response to the ruling.
The letter stated the ruling would “precipitate an utter disaster in nearly every sector of the California economy. If this Court does not reverse the opinion, criminal background checks – which make most employment in this State possible – will be severely delayed, and in many instances they will no longer be possible at all.”
The letter stated the opinion incorrectly interpreted Rule 2.507 because “nothing in the rule’s text bars searches that employ these identifiers as filters. The Court of Appeal misread the rule by collapsing the crucial distinction between displaying and searching, which has resulted in a blanket ban on search fields for date of birth.”
The PBSA and CDIA said background checks will be difficult without DOBs or driver’s license numbers. “Practically speaking, it will no longer be possible to consult criminal records in California for purposes of conducting routine background checks for many or most employment, tenant, and volunteer applicants.”
A survey titled “Background Screening: Trends in the U.S. and Abroad” released in August 2021 by the PBSA and HR.com found that background screening is widely utilized across the globe, with 93 percent of all organizations reporting they conducted some type of background screening.
Employment Screening Resources (ESR) – a service offering of ClearStar, a leading provider of Human Capital Integrity℠ technology-based services – is accredited by the PBSA under the Background Screening Agency Accreditation Program (BSAAP). To learn more about background screening, contact ESR today.
NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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