Reliable background checks require a variety of information. Searches of court records within a court’s electronic index, like those used for some criminal history checks, rely on being able to search by and access various personally identifiable information (PII). In general, PII is data that can help match a record to an individual and might include:
In many cases, a public record search requires being able to search by multiple PII to confirm if a record matches a candidate. Without being able to search with all the necessary information, background reports may not include all potential records for a candidate. And that means employers could be left with incomplete information on their candidates and employees.
A recent California appellate court decision, All of Us or None v. Hamrick, interpreted Rule 2.507 of the California Rules of Court in a way that has had a far-reaching impact on what PII can be used to search a court’s electronic index. The court rule states,
The following information must be excluded from a court’s electronic calendar, index, and register of actions:
(1) Social security number;
(2) Any financial information;
(3) Arrest warrant information;
(4) Search warrant information;
(5) Victim information;
(6) Witness information;
(7) Ethnicity;
(8) Age;
(9) Gender;
(10) Government-issued identification card numbers (i.e., military);
(11) Driver’s license number; and
(12) Date of birth.
The Superior Court of California, Riverside County maintained a public access that allowed individuals to search the court’s electronic index of cases. Users could search the Riverside Court’s public access and obtain court records and data linked to a personally identified criminal defendant by inputting a known date of birth or driver’s license number.
In May 2021, the California Court of Appeals decided that the Riverside Court’s search function by date of birth or driver’s license violated California court rules. The California Appellate Court held that “…allowing the public to search an electronic index by inputting an individual’s known date of birth or driver’s license number constitutes a violation of Rule 2.507.”
The Professional Background Screening Association (PBSA), among others, has stressed the potential impact of the court’s ruling. In response to this decision, some courts across the state started to remove “date of birth” and “driver’s license number” as a search field, if they were previously available. As the PBSA notes, “This causes a severe impact on background screening because the only identifier remaining on the publicly available record is often name, which is not enough to conclude that the record is about any specific person.”
On May 24, 2022, the California Senate passed a bill that could require consistent indexing of court records across the state. SB-1262 states:
“Existing law requires a clerk of the superior court to keep an index of any action or proceeding filed in the court. Existing law requires a separate index for plaintiffs and defendants in civil actions and for defendants in criminal actions.
This bill would 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.”
If passed, this law would allow background screening companies that conduct criminal record checks in California to search court records by date of birth or driver’s license number in addition to a candidate’s name to help ensure that records returned belong to the candidate.
The bill is now with the California Assembly for consideration. Concerned employers can voice their support of this pending legislation with resources provided by the PBSA. Verified Credentials will continue to monitor the progress of this bill and provide updates as they are available.