Arkansas Supreme Court Rules in PBSA Freedom of Information Act Lawsuit

Background Screening News

Written By ESR News Blog Editor Thomas Ahearn

On November 5, 2020, the Arkansas Supreme Court released its opinion on a lawsuit filed by the Professional Background Screening Association (PBSA) in 2018 against a Clerk of the District Court in Benton County, Arkansas, that upheld a Circuit Court Judge’s decision requiring that clerk to release court records under the state’s Freedom of Information Act (FOIA), according to a report from the Arkansas Democrat-Gazette.

The Democrat-Gazette reported the lawsuit filed by the PBSA – a non-profit trade group representing screening firms formerly known as the National Association of Professional Background Screeners (NAPBS) – claimed the clerk tried to “thwart the background check process” by requiring “any people seeking individual court records to pay $5,000, complete a compiled records license agreement, and obtain a compiled records license.”

The Democrat-Gazette also reported the lawsuit titled JONES v. PROFESSIONAL BACKGROUND SCREENING ASSOCIATION, INC “claimed requests for court records by association members are governed by the Arkansas Freedom of Information Act. Pulaski County Circuit Judge Chris Piazza agreed with the association. The state Supreme Court upheld Piazza’s ruling.” The complete story about the PBSA lawsuit ruling is available here.

According to the facts alleged in the original complaint, an Arkansas PBSA member offering background screening services in the state was informed beginning in February 2018 that the Arkansas State Supreme Court Administrative Order 19 and not the FOIA governed requests for court records to be used for criminal background checks. PBSA stated that the clerk had reiterated this position as recently as July 10, 2018.

On July 23, 2018, the PBSA filed a lawsuit against a clerk in the Bentonville Division of the District Court of Benton County in Arkansas for allegedly refusing “to provide background screening firms access to records from her court” and claimed that the clerk used her official position as clerk to impede the background screening process by relying “on a gross misinterpretation” of Order 19, according to a report from Arkansas Online on July 25, 2020.

Arkansas Online reported that the lawsuit filed in Pulaski County Circuit Court stated Order 19 and compiled records license should be used only for obtaining electronic data in bulk extracts for a large number of individuals which makes it “impossible” for background screening firms that seek individual court records to comply with requirements for obtaining a license from the Arkansas Administrative Office of the Courts.

The Arkansas Supreme Court agreed. Justice Courtney Rae Hudson wrote: “A plain reading of Order 19 and its commentary support PBSA’s position… Accordingly, the July 2018 request was not governed by any of the access limitations described in Order 19, and the circuit court was correct in determining that the FOIA applied to the request… We therefore affirm the circuit court’s award of summary judgment to PBSA on its FOIA claim.”

Nearly all organizations in the United States utilize background checks. In June 2020, the PBSA released its 4th annual industry survey entitled “Background Screening: Trends and Uses in Today’s Global Economy” that revealed 94 percent of employers conducted at least one type of background screening, while 73 percent of employers had a documented screening policy. The PBSA commissioned HR.com to conduct the survey.

County court officials who feel compelled to impede the background screening process “are only shooting themselves in the foot,” Attorney Lester Rosen, founder and Chief Executive Officer (CEO) of PBSA founding member Employment Screening Resources® (ESR), commented in an ESR News Blog titled “NAPBS Files Lawsuit Against Clerk of Arkansas Court for Impeding Background Screening Process” posted in July 2018.

“When counties restrict access to court records, several things happen. First, employers and job applicants are immediately penalized because background checks take much longer. Any delay in a background screening firm’s ability to complete reports in a timely manner works to the determent of job applicants and employers, who both want to have fast access to criminal records,” explained Rosen, the author of “The Safe Hiring Manual.”

“Second, criminals are arguably the primary beneficiaries since they have a better chance of avoiding detection,” Rosen continued in the blog. “Finally, the courts end up becoming overburdened because suddenly there is a much increased workload, as employers and screening firms have a greater need to pull files to search for identifiers to determine if a court record with a name match belongs to the applicant in question.”

Rosen said that Court officials need to understand that background screening firms only conduct background checks for employment purposes on applicants only after the applicant has authorized the background check in writing. Both the applicant and the employer want the background check report completed in the fastest time possible, usually within the background screening industry standard of 72 hours or three days.

Rosen also said any delay in the background screening firm’s ability to complete background checks in a timely manner only works to the determent of job applicants and employers. Background screening is also intensely regulated by the federal Fair Credit Reporting Act (FCRA), state laws, privacy rights, and guidance on the use of arrest and conviction records by employers from the U.S. Equal Employment Opportunity Commission (EEOC).

“Courts should be wary of restricting the ability of employers to fulfill their legal obligation to exercise due diligence in hiring to ensure a safe workplace for employees and the public,” said Rosen. “Without the ability to perform background checks, employers are in a Catch-22 situation where they can be sued for negligent hiring in court, even if the same court that impeded its ability to perform background checks.”

Rosen is a noted background check expert who was chairperson of the steering committee that founded the PBSA (then called NAPBS) in 2003 and served as the first co-chair. In 2019, he was awarded the PBSA Lifetime Achievement Award. The PBSA was established to represent the interest of companies offering employment and currently has nearly 900 member companies. To learn more about the PBSA, visit www.thepbsa.org.

Employment Screening Resources® (ESR) – a leading global background check provider founded by Rosen in 1997 in the San Francisco, California area – is accredited by the PBSA, undergoes annual SOC 2® Type 2 audits, adheres to the EU-U.S. and Swiss-U.S. Privacy Shield Framework, and was named the #1 background screening firm in 2020 by HRO Today Magazine’s Baker’s Dozen. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) 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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