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Background Checks and Criminal Histories I

A criminal record is a record of a person’s criminal history, generally used by potential employers, lenders etc. to assess his or her trustworthiness. The information included in a criminal record varies between countries and even between jurisdictions within a country. In most cases it lists all non-expunged criminal offenses and may also include traffic offenses such as speeding and drunk-driving. In some countries the record is limited to actual convictions (where the individual has pleaded guilty or been declared guilty by a qualified court) while in others it also includes arrests, charges dismissed, charges pending and even charges of which the individual has been acquitted. The latter policy is often argued to be a human rights violation since it works contrary to the presumption of innocence by exposing people to discrimination on the basis of unproven allegations. 

The United States falls into the latter category believe it or not.

In the United States, criminal records are compiled and updated on local, state, and federal levels by various law enforcement agencies. Their primary goal is to present a comprehensive criminal history. They may be used for many purposes mostly for background checks including identification, employment, security clearance, adoption, immigration/international travel/visa, licensing, assistance in developing suspects in an ongoing criminal investigation, and for enhanced sentencing in criminal prosecutions. In the United States, these compilations are unlikely to be admissible in court as proof of arrest or conviction.

Criminal histories are maintained by law enforcement agencies in all levels of government. Local police departments, sheriffs’ offices, and specialty police agencies may maintain their own internal databases. On the state level, state police, troopers, highway patrol, correctional agencies, and other law enforcement agencies also maintain separate databases.

Law enforcement agencies often share this information with other similar enforcement agencies and this information is usually made available to the public.[1] Registered sex offenders have information about their crimes or misdemeanors readily available, and Department of Correctional Services in many states disseminate criminal records to the public, through media such as the Internet.

Usually, the only group in society that is not subject to dissemination of any criminal records is juveniles.[verification needed] Some adults can also be eligible for non-disclosure of their records through the process of Record sealing or Expungement. Some states have official “statewide repositories” that contain criminal history information contributed by the various county and municipal courts within the state. These state repositories are usually accurate so long as the state requires and supervises the uploading of data from the local courts. Some states make reporting to the repository voluntary. The information obtained from these repositories can be incomplete and the use of this information has associated risks.

The federal government maintains extensive criminal histories and acts as a central repository for all agencies to report their own data. NCIC (National Crime Information Center) is one such database. Generally, and with a very few exceptions, the records compiled by the federal government are not made available to the private sector. Some private re-sellers claim to offer an NCIC record search. In most cases these claims are fraudulent. Though NCIC records may not be available to private sector companies, they still may hold very accurate criminal records bought from other reporting agencies.

Federal records:

Department of Justice-  National Crime Information Center (NCIC)

The Federal Bureau of Investigation (FBI) manages the official national criminal history database through the National Crime Information Center (NCIC). The NCIC stores information regarding open arrest warrants, arrests, stolen property, missing persons, and dispositions regarding felonies and misdemeanors. The FBI’s compilation of an individual’s criminal identification, arrest, conviction, and incarceration information is known as the Interstate Identification Index, or “Triple-I” for short. This is basically the FBI’s rap sheet (Record of Arrest and Prosecution). It contains information voluntarily reported by law enforcement agencies across the country, as well as information provided by other federal agencies. It contains information on felonies and misdemeanors, and may also contain municipal and traffic offenses if reported by the individual agencies. Each individual who has an entry in the Interstate Identification Index has a unique “FBI number” that is used to identify a specific individual.

It compensates for the fact that an individual may provide several false names, or aliases, to a law enforcement agency when he or she is booked. An individual may also lie about his or her date of birth or social security number as well, making an independent, unique identification key necessary.

It is important to note that the information provided by the Interstate Information Index may come from the agency who “booked” the individual and not necessarily the agency who arrested the individual. Therefore, there may be discrepancies between the arrest date, location, and arresting agency listed in the database and the actual date, location, and agency who made the arrest. The Interstate Information Index may also contain incarceration information as well, listing each time an inmate is transferred from one correctional institution to another as a separate “arrest.” The Interstate Information Index is only as accurate as the information reported to it by individual agencies, and frequently lacks comprehensive information on the dispositions of the various arrests it lists. It is best used as a guide on where to find more comprehensive information on the individual.

National Instant Criminal Background Check System

Mandated by the Brady Bill, the National Instant Criminal Background Check System (NICS) is used by the FBI to screen potential firearms buyers. Citizens who are currently ineligible to own a firearm under current laws may have the opportunity to have their firearms rights restored. Eligibility largely depends on state laws. In addition to searching the NCIC databases, NICS maintains its own index to search for additional disqualifiers from gun ownership. Private companies are not allowed access to this system for background checks.

Integrated Automated Fingerprint Identification System

The FBI maintains the largest biometric database in the world with the Integrated Automated Fingerprint Identification System (IAFIS). Criminal submissions from arrests and civil submissions from authorized background checks are stored in IAFIS. Currently, IAFIS has more than 47 million submissions in its repository.

Combined DNA Index System

The Combined DNA Index System (CODIS) stores DNA profiles for both convicted felons in the Offender Index as well as unidentified DNA found at crime scenes in the Forensic Index. CODIS was originally piloted in 1990 as a project among 14 states. Currently, all 50 states, Puerto Rico and the United States Government participate in CODIS.

Department of Transportation: National Driver Register

While not officially a criminal history repository, the National Driver Register (NDR), operated by the Department of Transportation, maintains information on drivers regarding suspended licenses. The NDR maintains a database of information posted by individual states as mandated by federal law. All drivers who have had their licenses suspended for any reason (including suspensions resulting from several successive minor traffic violations, i.e., Massachusetts suspends for three separate speeding tickets over a six month period) have that information posted by state Registry of

Motor Vehicles offices to the NDR .

Also, the NDR records information concerning convictions of driving under the influence of alcohol or controlled substances, failing to render aid at an accident involving death or injury, and knowingly making a false affidavit or committing perjury to officials about an activity governed by a law or regulation on the operation of a motor vehicle. Additionally, the NDR contains information on traffic violations resulting from a fatal automobile collision, reckless driving, or racing on the highways.

Under federal law, states are required to obtain information collected and stored by the NDR to review records of licensees identified as possible “matches.” If a match is obtained, often states will take action to call the match to a hearing to prove that they are not “the same person,” placing the burden of proof on the suspected “match” to prove the distinction. Increasingly, state licensees find themselves caught in a Catch-22 situation where the transmission of information causes them to fail to be alerted to the fact that their drivers record has been combined with that of another driver, often to their unique disadvantage. This has led to a growing number of false arrests, citations, and actions being taken by officers against drivers who are, in the end, victims of mistaken identity.

Secure Flight

Secure Flight, operated by the Transportation Security Administration, screens United States airline passengers to see if they are on terrorism watch lists. Unlike the predecessors Computer Assisted Passenger Prescreening System (CAPPS) & CAPPS II, Secure Flight does not scan passengers for outstanding warrants nor does Secure Flight use computer algorithms to search for links to flagged terrorists.

Obtaining copies of Federal criminal records

It is possible to obtain copies of criminal records maintained by Federal agencies under the Freedom of Information Act and the Privacy Act. In general, you may only obtain records concerning yourself, deceased individuals, or living individuals who have given you their permission to obtain their records.

Interstate records

Most states have a statewide agency who acts as a clearinghouse for all statewide arrest information. These so-called “state rap sheets” are usually much more detailed than the Interstate Identification Index; usually listing not only the arrest information, but the subsequent court action following that arrest.

Expungement of criminal records

In the United States, criminal records may be expunged, though laws vary by state. Many types of offenses may be expunged, ranging from parking fines to felonies. In general, once sealed or expunged, all records of an arrest and/or subsequent court case are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged. However, when applying for a state professional license or job that is considered a public office or high security (e.g. security guard, law enforcement, or related to national security), you must confess that you have an expunged conviction or else be denied clearance by the DOJ. There is no post-conviction relief available in the Federal system, other than a Presidential Pardon.

In any case, having a criminal history will clearly affect a security clearance and eliminate the possibility of obtaining a large number of jobs.  What follows are the types od security clearances:

Types of Security Clearances:

National Agency Check with Local Agency Checks and Credit Check (NACLC)

A NACLC is the type of investigation required for a Secret or Confidential clearance. It includes a credit bureau report and a review of records held by federal agencies and by local criminal justice agencies. It generally does not require an interview with an investigator. The investigation routinely covers no more than the past seven years of a person’s life or a shorter period if the applicant is less than 25 years old.

Single Scope Background Investigation (SSBI)

An SSBI is a more detailed investigation and is required for a Top Secret clearance, for Sensitive
Compartmented Information (SCI) access, and for designated Secret Special Access Programs (SAP). It includes a NACLC, a Personal Subject Interview (PRSI), interviews of former spouses; interviews of character, employment, neighborhood, and educational references; reviews of rental, employment, and academic records. The investigation routinely covers no more than the past 10 years of a person’s life or a shorter period if the applicant is less than 28 years old.

Periodic Reinvestigation (PR)

People with security clearances must be routinely reinvestigated at set intervals based on the level of clearance they possess. A Periodic Reinvestigation is done to ensure that cleared personnel are still suitable for access to classified information. The type of reinvestigation and frequency required depend on the level of clearance:
• Top Secret requires an SSBI-PR or PPR every 5 years.
• Secret requires an NACLC every 10 years.
• Confidential requires an NACLC every 15 years.

SSBI-PR (Single Scope Background Investigation—Periodic Reinvestigation)

An SSBI-PR includes an NACLC, Personal Subject Interview, references interviews, and record reviews covering at least the past five years.

PPR (Phased Periodic Reinvestigation)

In September 2005 OPM made the PPR available as a less comprehensive and less expensive alternative to the SSBI-PR. The investigation includes an NACLC, Personal Subject Interview, and limited reference interviews and record reviews. PPRs may not requested when certain questions on the clearance application contain responses indicating a possible security or suitability issue.

Reimbursable Suitability Investigation (RSI)

The RSI consists of a focused investigation to provide additional specific information to resolve developed issue(s) that fall outside the scope of coverage of other investigative products offered by the Office of Personnel Management (OPM).

Trustworthiness Investigation

Trustworthiness investigations are not conducted for a security clearance. It is requested when an applicant is going to have access to Sensitive but Unclassified Information or occupy a position of “Public Trust.” For example, trustworthiness investigations are sometimes conducted on those that will have access to a sensitive site (e.g., cleaning crew on a military installation).

Other Investigations

The Office of Personnel Management (OPM) conducts other types of investigations. Some are for employment purposes only, and others are for a combination of employment and security clearance purposes. These investigations are generally not conducted for the Department of Defense contractor personnel.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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