While the situation has improved over the last couple of months, we are still finding that court records in some counties have been slower to return than normal. There are a couple of reasons.
The first of course is COVID and the shutting down of physical access. That is a temporary situation that has been improving.
The second reason is that some states and courts are redacting the date of birth from their records. This means that the only way to initially search is by name—and names are not unique identifiers.
There are a couple of states where the redaction of the DOB has hit hard. California in particular continues to experience issues in some counties.
- CALIFORNIA DOB REDACTION – A decision by the California Court of Appeal has resulted in CA Courts refusing to respond to research requests, limiting the number of queries that can be made in person or limiting the amount of PII provided when a potential record is found. These decisions are being implemented in CA Courts across the state with little to no notice and are impacting public records research and reporting.
- MICHIGAN DOB REDACTION – A change in Court Rules in Michigan that limits the Personally Identifiable Information (PII) provided by the courts is impacting public records research and reporting. This new rule is in effect; however, its implementation is delayed until January 2022. Note: A small number of Michigan courts have taken the position to not respond to research requests or to respond with limited PII when a record is found based on their interpretation that January 2022 is the deadline and that they are in compliance by making the change earlier.
In response to discussions, the Michigan State Court Administrative Office (SCAO) forwarded a workable counter-proposal.
Key elements of the proposal are:
- Defining what constitutes “consent” for purposes of background screening.
- Outlining a registration process for Michigan members as well as requirements for proof of liability insurance. This proposed registration would need to be verified every 6 months.
- Moving the effective date of these new procedures from January 1, 2022, to April 1, 2022
In addition, we have learned that the courts using the JIS system will now be displaying DOB to the printed ROA that court researchers can receive. We expect to see significant turn-around-time issues, however, this is an improvement over no access to DOB.
Name Only Matches
Coincidentally, or perhaps not so coincidentally, the Consumer Financial Protection Bureau issued an advisory opinion On November 4, 2021, stating that “a consumer reporting agency (CRA) that engages in name-only matching violates the Fair Credit Reporting Act’s (FCRA) reasonable procedures requirement. (15 U.S.C. § 1681e(b).) Although this was described as an “advisory opinion”, the CFPB made clear that the opinion is considered an “interpretive rule” issued under the CFPB’s authority to interpret the FCRA.
We have communicated directly with many of you who have been the hardest hit. It’s a problem we continue to work on. As you know a name-only match is not a unique identifier. For that matter, neither is a name and a DOB. VICTIG uses an algorithm to classify the commonality of name by year of birth and gender to perform additional due diligence before reporting a record. “Reporting everything and letting our partner sort it out” is not our process.
We believe this effort to “anonymize” court records has been misguided. Job applicants come to you to be entrusted with representing your company and you have a duty to your company, existing employees, and customers. You may be held liable if you fail to ensure the applicant is qualified for the position for which they are applying. We believe there is a job for everyone, but not every job is for everyone.
If you are in a jurisdiction that has or is contemplating redacting identifying information, you may be able to help. A local employer contact with their representatives may have more weight than we do. If you would like to help, please contact us.