1989 Supreme Court Decision Withheld Criminal Conviction Information from Public

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I ran across this Opinion column published in the Ithaca Journal today and my interested was piqued.  Apparently, back in 1989, the U.S. Supreme Court decided against the release of criminal conviction information for a particular individual citing that the disclosure of that information would be “an unwarranted invasion of personal privacy.”   Now, 20 years ago my interests were more so geared towards Barbie dolls and ballet class rather than what the Supreme Court was up to.  But 20 years later, speaking from the viewpoint of both a pre-employment screening professional and a private citizen, this decision bothers me.  And as an employer, it should bother you too.

While I can’t recount an instance where the Court’s decision has created a roadblock during the criminal background check process, I can’t say it never will.  But if it ever does, you can bet that the pre-employment screening industry will fight it tooth and nail.

Some food for thought: Five of the nine current Supreme Court Justices were not serving on the Court twenty years ago when this decision was made.  If this case was being decided or re-visited today, would the outcome be different? 

Twenty-year-old lawsuit still hurts FOIA laws   

By Robert Freeman, Ithaca Journal

When I read the Supreme Court’s decision in Reporters Committee v. U.S. Department of Justice 20 years ago, I asked myself: How could nine justices be so wrong? I’m asking the same question today, because that decision has led to damage done to the federal Freedom of Information Act (FOIA) and it simply does not reflect the realities of 2009.

The case involved a request for the criminal conviction history of person alleged to have been involved in organized crime, and the information was stored in a government database. Although the information could readily be found and retrieved, the Court determined that disclosure would result in “an unwarranted invasion of personal privacy.” That standard is contained within the federal Act and its equivalent is included in numerous state FOI laws, including the New York Freedom of Information Law (we call it “FOIL”).

Most Americans know that the fact of a conviction, a finding or admission that a person has broken the law, is public, and that anyone can walk into a courthouse and gain access to the record of the conviction. The Supreme Court knew that, too, but it found, in essence, that there are thousands of courthouses in this country, and that, even though they are available, they involve items of “practical obscurity” – yes, they are public, but they can be very hard to find. Because that is so, even though they were easy to find in a government database, the Court determined that they could be withheld on the ground that disclosure would constitute an unwarranted invasion of privacy.

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U.S. DEPT. OF JUSTICE v. REPORTERS COMMITTEE, 489 U.S. 749 (1989)   (Supreme Court decision)

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