Page 22 - NCISS Your Advocate September 2020

Private Investigators and Records Access Under Attack

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Wes Bearden, 1 Vice President / President Nominee / Legislative Chair – Investigations
NCISS has responded to the false statements and is monitoring legislative and regulatory activity with state associations
and federal with Lobbyit.

Recently, I have reviewed your article on behalf of Vice Media Group regarding the use of DPPA information by private
investigators and others. I am the current Legislative Chair for the National Council of Investigation and Security Service,
Inc. I am also the past General Counsel for the Texas Association of Licensed Investigators, Inc.

In several of your articles, you describe investigators as “bad actors.” In most States, private investigators are required
to be vetted by state regulatory bodies, required to have minimum experience requirements, and comply with state law
in the conduct of their investigations. In most states, investigators are also required to maintain liability insurance or are
bonded. Private investigators play a pivotal and key role in our civil and criminal justice system. Their access to this
information is necessary in carrying out that role. In particular, private investigators utilize this information for such
purposes as:
• Identifying and documenting insurance fraud.
• Investigating and identifying vehicle owners involved in motor vehicle accidents.
• Pre-employment investigations.
• Locating children abducted by non-custodial parents.
• Locating victims of human trafficking.
• Conducting due diligence in the efforts to locate individuals for various tribunals.
• Identification of assets subject to seizure by court order.
• The identification of witnesses, sex or violent offenders, stalkers or those subject to temporary restraining
orders or protective orders.
• Identifying individuals subject to service of process by the court system.
• Identifying vehicles or individuals who are believed to be a security risk.

Within your article, you mention that private investigators have access based on the DPPA exemptions. You have
characterized these exemptions as “broad.” However, much thought has been placed into these exemptions. Without
these exemptions for access to driver’s license information, the judicial system would come to a halt.

One such exemption that you recently mention is the “anticipation of litigation” exception. As both a licensed attorney
and private investigator, this exemption is of most importance. All attorneys are required to investigate their claims
prior to bringing them to court. The ultimate purpose of that duty is to mitigate frivolous lawsuits, incorrectly identified
parties and / or unsubstantiated claims. Without the use of DPPA information prior to suit, attorneys, and ultimately
their clients, would be unable to satisfy that duty.

In addition, many investigations are conducted by employers, property owners, accident victims, security personnel at
that time of occurrence. These investigations are meant to document the facts of an incident (whether a violent
employee, a car wreck, an occupational accident, sexual assault etc.) at or near the time that they occur. The
“anticipation of litigation” exception is one of long historical jurisprudence. It allows and encourages these individuals
and entities to document such investigations prior to a lawsuit to nail down the facts for subsequent action. Without the
standard of “anticipation of litigation,” substantial harm would occur in a number of potential criminal and civil legal
matters.

Access to this information is of vital importance to private investigators, the judicial system and the public at large.
Unlike what is portrayed on television, the modern-day private investigator is a much more sophisticated user of this
information than most other accessors. At your convenience, I would like to discuss with you the importance of this
information and how the public benefits from these well thought out exemptions under the DPPA.

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