Background Check Mess

Prior to the invention of computers, or the internet, a person could be convicted of a crime without the world knowing about it. George W. Bush did his best to sweep his 1976 DUI under the rug. But today, in Washington State, every police record is available to the public under the Public Records Act. The same is true for court and arrest records. It is getting increasingly difficult to keep an arrest hidden, regardless of the final outcome of the case. So what can a person do to pull a George W. Bush and try to hide a DUI arrest? To answer this question, we must first look at where background check companies, and the public in general, get their information from.

In Washington State, the Washington State Patrol (WSP) maintains the official publicly available database of arrest and conviction records, the Washington Access to Criminal History (WATCH). For $10, anyone can run anyone else’s name in the database. Generally, if a person is arrested, booked in jail, and finger printed, there is going to be an entry for the arrest in the WATCH database. So even if it takes the prosecutor several months to file charges against the person, the record of arrest will still be available to the public shortly after the arrest. This is true even if the prosecutor decides to never file charges (for at least the first 12 months after the arrest). Once you are convicted (or acquitted) of the offense, the WATCH database will be updated with that information.

In some situations, the law allows you to vacate an arrest and conviction records from the WATCH database. And some folks who are arrested get lucky, and never have their arrest and conviction entered into WATCH (possibly because they never spent any time in jail on the offense). However, employers will probably utilize a private background check
company rather than just run a WATCH report. Typically, these companies not only pull data from WATCH, but also the court’s own Judicial Information System (JIS). So even if you are lucky enough to avoid a record in WATCH, chances are the case information will be available on JIS, and therefore, appear on a background check. The JIS record will show what charge was originally filed, and what the final outcome of the case was. So if the prosecutor completely overcharges a criminal case, and it ends up being resolved with an infraction (like a speeding ticket), all of that information will be available on JIS and therefore, on a background check. Even if a person’s charge is dismissed, it will not be too difficult for the world to find out what the person was originally charged with.

Washington’s current laws are not set up to address this predicament. Under Washington law, in certain situations, one can vacate an offense, which legally dismisses the offense. The court then orders the WSP to delete the record of the offense from WATCH. But, if the
background check company is relying on both JIS and WATCH for their information, that only solves half the problem. So even after the record is deleted from WATCH, it may still appear on background checks. Information cannot be deleted from JIS, so the only way to “hide” the information on JIS is to seal the court file, which is only allowed in very specific situations. In reality, once information makes it into these databases, it is very difficult to ever get the information out of the database.

If a person thinks there is incorrect information on a background check that has prevented them from receiving employment, there may be potential recourse under the Fair Credit Reporting Act (FCRA). While the FCRA does not apply to all background checks, if the FCRA does apply, that person is granted certain rights under the FCRA. Consult an attorney to determine if the FCRA applies to a particular case.