This post is part of a series recommending changes to how Minnesota handles criminal records and employment. The full report is here: Criminal Records and Employment in Minnesota.
The Collateral Sanctions Committee, like the CriMNet Policy Group and CriMNet Task Force, has been engaged in finding ways to improve Minnesota law in ways that will strike a healthy balance between the public’s right to access criminal justice data and the right of Minnesotans not to be stigmatized by criminal justice data that unfairly suggests that they present unusual risks to others. The Legislature’s manifest interest in creating state laws that enhance public safety by achieving this balance is laudable. However, both the Committee and CriMNet have recognized that sound laws and rational state practices are not adequate to solve the many problems that exist in this area. In a nation whose greatest contribution to the world may be its radical commitment to the free flow of information and ideas, it is neither possible nor desirable to make public data disappear from the marketplace.
Much of the criminal data that inhibits Minnesotans’ access to jobs can be bought at very low cost from an ever-expanding number of entrepreneurs known by a variety of labels: consumer reporting agencies, business screening services, data harvesters, data miners. The latter term is frequently used in Minnesota, it is reasonably descriptive, and it has the virtue of brevity. For those reasons, it is the informal label used in this report. Data miners are not currently regulated in Minnesota. While this state is properly engaged in crafting procedures to insure accuracy of state records and reasonable access to them, private businesses do not necessarily concern themselves with such important matters as whether the record they are selling actually belongs to the subject in whom the buyer is interested, whether it is correct, whether it is up to date, and whether the subject is enabled to correct errors by being provided with a copy of the report.
In the Fair Credit Reporting Act (FCRA), Congress has placed important limitations on data miners. A few states – California is notable – have created statutes patterned after the Federal law. California’s statute exemplifies how far-reaching and complicated such laws can be.46 It is not necessary for Minnesota to enact an FCRA-based complex of statutes in order to regulate data-miners doing business in this state; and, given the many layers of bureaucracy in the California structure, it may not be desirable. It is necessary, of course, that any state law in this area not conflict with Federal law.
The Committee recommends the following as an initial draft of a statute regulating data miners:
Section 1. BUSINESS SCREENING SERVICES; REMOVABLE AND UNREPORTABLE DATA.
Subdivision 1. Definition. For the purposes of this section, “business screening service” or “BSS” means a person engaged, for profit, in whole or in part in the practice of collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating to third parties, background information on individuals that includes records of arrests, citations, criminal proceedings, or convictions involving the individual.
Subd. 2. Notification of background check; report. (a) Before completing a background check, record check, or both, the business screening service shall notify the individual who is the subject of a check that a search is being done. The BSS must give the subject the following information:
(1) the identification and contact information of the person or entity requesting the report;
(2) that the subject has a right to see any public record or information obtained from a commercially available database used to prepare the report;
(3) that the subject has the right to request that the BSS change erroneous information and provide information that will make it possible for the BSS to reinvestigate; and
(4) all other rights available to the subject under this section.
The BSS shall provide a complete copy of the search findings to the subject at the same time the information is provided to the requester.
(b) A BSS report must include a glossary defining the criminal court terms used in the report, such as continued for dismissal, dismissal, stay of imposition, stay of adjudication, misdemeanor, petty misdemeanor, adjudication of delinquency, conviction, acquittal, and probable cause not found. A BSS report using public record information must identify the source from which the information was obtained, including the particular court or agency.
(c) A BSS must use the same look-backs as government agencies in reporting; for instance, if the law provides that misdemeanors cannot be disclosed or used by a state agency after three years from discharge, the BSS may not disclose them after three years.
(d) A BSS must verify any data obtained from public records within 30 days prior to distributing a report. The BSS has a continuing duty to update its information and to avoid using outdated information. The BSS may be liable under subdivision 4 if information in a report is different from the public record within 30 days prior to reporting. No adverse information that is a matter of public record and is included in a report may be repeated in a subsequent report by the same BSS unless it has been verified in the process of preparing the subsequent report.
Subd. 3. Correction and deletion of records. (a) If the completeness or accuracy of a record involving an arrest, citation, criminal proceeding, or conviction maintained by a business screening service is disputed by the individual who is the subject of the record, the screening service shall, without charge, investigate the disputed record. The agency shall notify any and all sources from which incomplete or inaccurate data was obtained of the reasons for the reinvestigation and of the result. This notice shall be in writing, and a copy shall be sent to the subject.
(b) In conducting a reinvestigation, the BSS shall review and consider all relevant information submitted by the subject of the record with respect to the disputed record. If, after reinvestigation, the disputed record is found to be inaccurate or incomplete, the BSS shall modify the record. If, after reinvestigation, the disputed record is found to be sealed or pardoned, the business screening agency shall promptly delete the record. The BSS shall, at the request of the subject, furnish a corrected report to any person who has, within two years prior to the correction or deletion, received a copy of a report on the subject from the BSS.
(c) A BSS may determine that no modification will be made to a disputed record search if the individual who is the subject of the record fails to provide sufficient information to investigate the disputed record. Upon making a determination that the record will not be modified, the BSS shall notify the subject in writing, giving reasons for the decision and describing the information required to investigate the disputed record.
(d) The BSS shall notify the subject of the record of the modification or deletion of the disputed report, or termination of the reinvestigation, within 30 days of the date the agency receives written notice of the dispute from the individual who is the subject of the record. The BSS must send a corrected report within three days of the completion of the reinvestigation to both the subject and requester.
(e) The BSS shall retain a copy of any report it creates for at least two years.
Subd. 4. Remedy. A business screening service that violates this section is liable to the individual who is the subject of the record for a penalty of $10,000 or actual damages caused by the violation, whichever is greater, plus costs and disbursements and reasonable attorney fees.
CERTIFICATES OF RELIEF
The CriMNet Policy Group is forwarding recommendations concerning the sealing of criminal records to the 2008 Legislature. It is very important that Minnesota establish clear policy, standards and procedures for sealing and for all other aspects of the state’s management and dissemination of criminal data. However, as is noted in the Data Miners section of this report, even the most rational and fair state practices will not relieve ex- offenders from the negative consequences of data summaries prepared and sold by private businesses. The Collateral Sanctions Committee has discussed procedures for “trumping the data miners,” by creating a system that would allow ex-offenders to ask for official review of their convictions and,when appropriate, to receive a cleardetermination that those convictions may not bar them from applying for particular licenses or cause their job applications to be summarily dismissed.
The state of New York authorized its Parole Board to grant “Certificates of Good Conduct” in the 1940’s, and the concept was further developed during Governor Nelson Rockefeller’s administration in the 1960’s, when a “Certificate of Relief from Disabilities” was created. While many of the groups now considering collateral sanctions policy recommend such processes as an adjunct to laws providing for reform in government’s handling of its own data, there are only six states that offer any such remedies. Although New York’s law is the most comprehensive of these, a May 2006 report of the New York State
Bar Association states that the Parole Board grants about 500 certificates per year and that the state courts grant about 2,500. Neither the number of applications nor the number of grants is as large as one might expect in a jurisdiction as populous as New York.48 The Bar speculates that offenders are not applying, because they are not being informed of their right to do so.
Illinois has recently created a certification system, but only those with two or fewer non-violent felonies may apply; and the certificates are aimed at facilitating licensing for specified occupations, rather than removing employment barriers generally. Connecticut has an administrative pardons process that is “independent of the governor and issues about 200 full pardons each year.”49 Recent legislation extends the kinds of relief the pardons authority may grant to include “provisional pardons” lifting barriers to employment. It seems likely that, as in New York, the certificates will not be numerous enough to achieve the degree of change that is needed in this area. According to a paper by Margaret Love and April Frazier, “certificates offered by California, Nevada, and New Jersey…appear to have little operational usefulness.”50 The Committee has approved a draft of a statute designed to reduce significantly the existing irrational barriers to employment that result from criminal convictions. If enacted, the proposed Certificate of Good Conduct would be especially important to the large number of people who are being denied jobs for which they are clearly qualified and are being told that, if they can eliminate their old and/or minor convictions, they will be hired.
Minnesota will be on the leading edge of reform if the proposal becomes law. As noted above, the general approbation such laws have gained from legislators and policy experts has not translated into meaningful results. Only a few states have enacted laws for this purpose, the laws have not always been adequately publicized, and the procedures petitioners must employ are often unnecessarily complicated.
The Collateral Sanctions Committee recommends that Minnesota create a process by which people adjudicated delinquent, convicted of misdemeanors, or convicted of felonies can apply to the courts in which they were adjudicated or convicted for certificates designed to have significant positive effect on their employment opportunities. The Committee offers a proposal for legislation, recognizing that it will be necessary to insure that there is sufficient funding to make the program feasible for the State Court and the entities responsible for managing the data involved in the program. The proposed statute incorporates features from several sources, including proposals for model/uniform codes:
Section 1. [364.20] CERTIFICATE OF GOOD CONDUCT.
Subdivision 1. Petition; filing fee. A person who has been convicted or adjudicated delinquent for a crime may petition a court for a certificate of good conduct as provided in this section. A petition may seek a certificate for a single crime or multiple crimes. When filing the petition, the person shall pay a filing fee in the amount required under section 357.021, subdivision 2, clause (1). A court may waive the filing fee in cases of indigency.
Subd. 2. Contents of petition. (a) A petition for a certificate of good conduct must be signed under oath by the petitioner and state the following:
(1) the petitioner’s full name and all other legal names or aliases by which thepetitioner has been known at any time;
(2) the petitioner’s date of birth;
(3) all of the petitioner’s addresses from the date of the offense in connection with which a certificate is sought, to the date of the petition;
(4) why the certificate is sought and why it should be granted;
(5) the details of each offense for which the certificate is sought, including the date and jurisdiction of the offense, either the names of any victims or that there were no identifiable victims, whether there is a current order for protection, restraining order, or other no contact order prohibiting the petitioner from contacting the victims or whether there has ever been a prior order for protection or restraining order prohibiting the petitioner from contacting the victims, the court file number, and the date of conviction;
(6) what steps the petitioner has taken since the time of the offense toward personal rehabilitation, including treatment, work, or other personal history that demonstrates rehabilitation;
(7) the petitioner’s criminal conviction record indicating all convictions for misdemeanors, gross misdemeanors, or felonies in this state, and for all comparable convictions in any other state, federal court, or foreign country, whether the convictions occurred before or after the conviction for which the certificate is sought;
(8) the petitioner’s criminal charges record indicating all prior and pending criminal charges against the petitioner in this state or another jurisdiction, including all criminal charges that have been continued for dismissal or stayed for adjudication, or have been the subject of pretrial diversion, and all stays of imposition; and
(9) all prior requests by the petitioner, whether for the present offense or for any other offenses, in this state, in any other state, or in federal court, for pardon, return of arrest records, expungement or sealing of a criminal record, or certificate of good conduct or similar certificate, whether granted or not.
(b) If there is a current order for protection, restraining order, or other no contact order prohibiting the petitioner from certain conduct or there has ever been such an order, the petitioner shall attach a copy of the order to the petition.
(b) The prosecutorial office that had jurisdiction over the offense for which the certificate is sought shall serve by mail the petition for the certificate and the proposed certificate order on any victims of the offense for which the certificate is sought who have requested notice pursuant to section 611A.06. Service under this paragraph does not constitute a violation of an existing order for protection, restraining order, or other no contact order.
(c) The prosecutorial office’s notice to victims of the offense under this subdivision must specifically inform the victims of the victims’ right to be present and to submit an oral or written statement at the hearing described in subdivision 4.
Subd. 4. Hearing. A hearing on the petition must be held no sooner than 60 days after service of the petition. Parties to the action may call witnesses to establish or refute the petitioner’s eligibility for the certificate. A victim of the offense for which a certificate is sought has a right to submit an oral or written statement to the court at the time of the hearing describing any conduct of the offender that has occurred after the offender’s sentencing that is relevant to the issue of whether the offender has been rehabilitated, including the effect of this conduct upon the victim. The judge shall consider the victim’s statement when making a decision.
Subd. 5. Eligibility. A person is eligible for a certificate of good conduct under this section if the following conditions are met:
(1) the person has been successfully discharged from the sentence imposed for the offense for which the certificate is sought and is not under correctional supervision for any other offense;
(2) the person is not currently required to register as a predatory offender under section 243.166;
(3) the person is not currently charged with any offense and has been law abiding for the following period immediately preceding the filing of the petition (i) for a person convicted of a felony against the person, five years; (ii) for all other felonies, three years; (iii) for misdemeanors against the person, two years; (iv) for all other misdemeanors, one year; (v) for delinquencies against the person, five years; (vi) for all other delinquencies, two years.
(4) the person demonstrates rehabilitation, which may be shown, among other ways, by evidence of the person’s good character, employment, volunteer activities, or participation in vocational, educational, treatment, or rehabilitation programs;
(5) the issuance of the certificate is consistent with the public interest; and
(6) any other factor deemed relevant by the court, including, but not limited to, the severity of the conduct that constituted the offense for which the certificate is sought.
Subd. 6. Issuance of certificate. A judge shall issue a certificate of good conduct to a petitioner if the petitioner establishes by clear and convincing evidence that the petitioner meets the eligibility requirements specified in subdivision 5, clauses (1) to (5), and any other factor required by the court under subdivision 5, clause (6).
Subd. 7. Effect of certificate. (a) A certificate of good conduct issued under this section creates a presumption of rehabilitation in favor of the person to whom it was issued and relieves the person of any state-imposed collateral sanction, as defined in section 609B.050, relating to eligibility for housing, employment, or professional licensing arising from a crime for which the certificate was issued.
(b) A certificate of good conduct has no effect on collateral sanctions not related to housing, employment, or licensing.
(c) Consistent with paragraph (a) and other applicable law, a housing or licensing authority or employer may, but is not required to, take into account a conviction that is the subject of a certificate of good conduct when making a housing, licensing, or hiring decision.
(d) A housing or licensing authority or employer is not civilly or criminally liable for relying on a certificate of good conduct when offering housing, employment, or licensing to a person. This paragraph does not relieve a person from any other legal duty in making a housing, employment, or licensing decision not related to the conduct that is the subject of the certificate of good conduct.
(e) Evidence relating to a conviction for which a certificate of good conduct has been issued is inadmissible in a civil action against a housing or licensing authority or employer for negligence or other fault in renting, leasing, licensing, or hiring if the authority or employer relied on the certificate when making the underlying decision.
(f) The existence of a certificate of good conduct is admissible as evidence of reasonable care by a person who relied on it when making a housing, licensing, or hiring decision related to the subject of the certificate.
Subd. 8. Revocation. A certificate of good conduct is revoked by operation of law if the subject of the certificate is subsequently convicted or adjudicated delinquent for a new crime.
Subd. 9. Limited effect. A certificate of good conduct has only the effect given in this section. A certificate does not act as a pardon or expungement. The certificate does not relieve the person to whom it was issued of any collateral sanctions or legal disabilities related to predatory offender registration; eligibility to possess firearms; or driver’s license sanctions.
Subd. 10. Crime for misuse. Unless a greater penalty is specified elsewhere in statute, a person who knowingly uses or attempts to use a revoked certificate of good conduct or who fraudulently alters or forges a certificate of good conduct is guilty of a misdemeanor.
Subd. 11. State Court to collect data. The State Court shall collect data adequate for assessing the impact of certificates of good conduct on recidivism. The data shall include, but not be limited to, the following:
(1) Name and birth date of every applicant for a certificate, whether the application was granted, and the statute numbers of the convictions each applicant listed on his/her application, as required by subd. 2(5) above;
(2) Number of certificates sought in each of the categories set forth in subd. 5(3) above; and
(3) Number of certificates granted concerning each of the categories set forth in subd. 5(3) above.
Subd. 12. Reporting of data. The State Court shall prepare data reports concerning certificates of good conduct from time to time, as requested by the Legislature.
Sec. 2. Minnesota Statutes 2006, section 611A.06, subdivision 1a, is amended to read:
Subd. 1a. Notice of expungement or certificate of good conduct required. The prosecuting authority with jurisdiction over an offense for which expungement or a certificate of good conduct under section 364.20 is being sought shall make a good faith effort to notify a victim that the expungement or a certificate is being sought if: (1) the victim has mailed to the prosecuting authority with jurisdiction over an offense for which expungement or a certificate is being sought a written request for this notice, or (2) the victim has indicated on a request for notice of expungement release submitted under subdivision 1 a desire to be notified in the event the offender seeks an expungement or a certificate for the offense.
A copy of any written request for a notice of expungement or a certificate request received by the commissioner of corrections or other custodial authority shall be forwarded to the prosecutorial authority with jurisdiction over the offense to which the notice relates. The prosecutorial authority complies with this section upon mailing a copy of an expungement or a certificate petition relating to the notice to the address which the victim has most recently provided in writing.
46 California Civil Code §1786.10-1786.40.
47 Because the Committee’s purpose was to study the affect of criminal data on employment, there was no discussion of landlord-tenant issues. The Minnesota Multi Housing Association (MHA) had a representative on the Committee; when MHA read the draft report, it requested that its objection to this recommendation be noted. MHA states that state law already regulates the rental screening process and provides many of the rights set forth in the proposed legislation; MHA is also concerned that the procedures set forth in the statute drafted by the Committee will slow down tenant screening to a degree that is harmful to the interests of both landlords and tenants.
48 New York Bar Association. (2006). pp.99-106. 49 Love, M., & Frazier, A. (2006).
50 Ibid at p.2.