The Government Accountability Office (GAO) has been busy. At the request of Congress, it’s been looking into criminal background checks. Last week the GAO released a report of findings from a two year study titled “CRIMINAL HISTORY RECORDS: Additional Actions Could Enhance the Completeness of Records Used for Employment-Related Background Checks.” The report lives up to that lengthy title–it is the most comprehensive accounting of the current state of FBI background checks, criminal record databases, and practices since 2006. It reveals when and why states conduct FBI record checks, and looks at whether states have improved upon reporting complete records into the FBI database. It also looks at the practices of private companies that conduct criminal record checks.
Congress has good reason to be concerned. Every year, more state and federal agencies are turning to statewide databases and the FBI records to screen employees for safety and security reasons. The number one concern is this: incomplete records.
Back in 2006, the Attorney General reported that the FBI criminal background check system was woefully inadequate, consisting of a patchwork of state and federal laws. It found inconsistencies in access to FBI criminal record checks across states and industries, concluding that records were incomplete and were not reported consistently. Since then, little has changed.
State Reporting and the FBI
The FBI database relies on the states to supply complete and accurate records. The GAO reports that while some states have made improvements, more progress is needed. More records now contain both the arrest and final disposition (e.g., a conviction), but there are still gaps. According to the report, twenty states reported that more than 75 percent of their arrest records had dispositions in 2012. That means around 25 percent of those state’s records did not have dispositions. That’s a pretty big gap. Those of us in the private sector know from experience that incomplete records can’t be relied upon for hiring decisions; they lead to delays in hiring, rejection of qualified candidates, and lawsuits.
The report notes that the FBI’s Advisory Policy Board, which includes representatives from federal, state, and local criminal justice agencies, created a Disposition Task Force in 2009 to address this very problem. But the Task Force has no current plans or time frames in place to do what’s needed—to make improvements in national standards for collecting and reporting disposition information.
Private Background Companies
Given the state of affairs with state reporting and FBI sources, it’s no wonder that employers, including government agencies, have turned to private screening companies. The report notes that the use of private companies to conduct criminal history record checks appears to be increasing because of employer demand:
“(P)rivate background check companies can offer benefits that government agencies are not always able to provide, including collecting and consolidating criminal justice information from multiple sources, achieving faster response times than Management officials from state agencies, and creating reports that include non-criminal-justice information.”
Private companies are able to return results faster because they don’t rely on the FBI database or state-reported records. They conduct name-based searches on a wider variety of sources, going directly to the courts for the most current and up-to-date information. The report points out challenges to the private model as well, like false positives—which can occur when a person with a common name is associated with another person’s records—and false negatives, which can occur when a search misses a record because of errors in the record. However, private background check companies mitigate these errors by using additional identifiers—such as date of birth and address— when conducting checks. Moreover, regulators like the FTC are actively enforcing consumer protection laws like the Fair Credit Reporting Act, to keep private companies in line.
After conducting a nationwide survey of 47 states and the District of Columbia, interviewing officials that manage checks from the FBI and 4 states, speaking to stakeholders like private background companies and trade associations for background screeners, and regulators like the Federal Trade Commission, the GAO concluded that one thing is clear. Criminal background checks are here to stay. Employers and government agencies are increasingly using criminal history records for employment, volunteers, and licensing. And to do that well, they need accurate and complete criminal records— including the final disposition of any criminal charges.
What the GAO Recommends
The report concludes with these specific recommendations:
- To improve disposition reporting that would help states update and complete criminal history records, we recommend that the Director of the FBI task the FBI Advisory Policy Board to establish a plan with time frames and milestones for achieving its Disposition Task Force’s stated goals.
- To potentially help states enhance the completeness of their criminal history records, we recommend that the Director of the FBI and the Director of the Office of Personnel Management clarify what disposition information OPM will provide to the FBI and formally agree on how OPM will provide it. This would enable the FBI to forward the information to states and allow each state to determine if the information can be used to update their criminal history records.
- To better equip states to meet the regulatory requirement to notify individuals of their rights to challenge and update information in their criminal history records, and to ensure that audit findings are resolved, we recommend that the Director of the FBI—in coordination with the Compact Council—determine why states do not comply with the requirement to notify applicants and use this information to revise its state educational programs accordingly.
It will be interesting to see the kind of follow up that ensues. One thing conspicuously absent from the recommendations is any follow up with private industry, which has an active stake in the process. Ironically, the private background screening industry is miles ahead of the states and other government employers when it comes to ensuring the accuracy of records and protecting the rights of consumers in the screening process.