Page 5 - DIY Defense Investigations - AFI-LLC Newsletter October 2021

DIY Defense Investigations - AFI-LLC Newsletter October 2021

REMOVAL OF PERSONAL IDENTIFIERS FOR INVESTIGATIONS
(Kelly Riddle, TCBI – Kelmar Global in TX)
Several states are moving towards the removal of dates of birth in their court records. This presents problems on many
levels. Those of us who do pre-employment backgrounds face a burden due to the Fair Credit Reporting Act (FCRA)
requirements. According to the FCRA, a company doing pre-employment backgrounds (CRA) is required to validate the
information on a person to the greatest extent possible. Failure to do so can create legal liability and open the door for
a lawsuit. For those of us that use this in the scope of investigative work, we don’t have the FCRA hanging over our
shoulder but presents obvious difficulties in confirming the record pertains to our subject in question.

In California, the 4th Appellate Court in the state of California made a ruling in All of Us or None – Riverside Chapter vs.
W. Samuel Hamrick, which among other things instructed all Superior Courts in the state to remove the dates of birth
(DOBs) from their online systems and public access terminals. The industry backlash was strong and approximately ten
days later, a partial date of birth, both month and year, was repopulated on the public access terminals. Even so, in Los
Angeles County, they announced on August 20th the court clerks would no longer be allowed to verify full date of birth.

In Michigan, effective July 1, 2021, the Michigan Supreme Court ordered the removal of all personal identifiers from
public court files other than the defendant's name. This is part of AO No 1994-4 establishment of Michigan Trial Courts
Records Management Standards. In order to protect privacy and address security concerns, it is ordered that protected
personal identifying information, as defined in court rule, filed with the state courts of Michigan in any form or manner
and for any purpose must be nonpublic. These identifiers include date of birth, social security number, driver’s license
number passport numbers, etc.

In Texas, we are finding that in the major metro cities, an open-records request is immediately being sent to the city or
county attorney who sends a blanket letter stating they have sent the request to the Attorney General for a ruling on
whether it should be released or not. Part of the letter to the AG includes this:

Arguments and Authorities
Section 552.101 (Common Law Privacy) (Criminal History)
The requested information consists of, or contains, compilations of an individual's criminal history. The doctrine of
common-law privacy protects information that is (1) highly intimate or embarrassing, the publication of which would
be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. A compilation of an
individual's criminal history is highly embarrassing information, the publication of which would be highly
objectionable to a reasonable person. See US Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 764 (1989). The City believes, then, that certain details within the requested information are excepted from
required disclosure by section 552.101 of the Texas Government Code in conjunction with common-law privacy.

Conclusion
For the reasons set forth in this letter, the city seeks a ruling from the Office of the Attorney General to protect the
enclosed records from disclosure.

For the most part, the AG is requiring the release of the documents with highly redacted information. These are just
some examples of why we as leaders have to be strong in our stand and response to issues such as these. Most of us
have been in the fight for a long time but it appears the noose continues to get tighter. Thanks for your leadership!

CALIFORNIA SB 731 CRIMINAL RECORDS RELIEF ACT
(Francie Koehler – Special Circumstances – CA / NCISS Past President and CALI Legislative Chair / Past President)
09/11/2021 SB 731, the bill written to close criminal records with few exceptions four years following the completion of
all legal requirements (prison, parole, probation, community service, etc.), FAILED passage. Supported by criminal justice
reform groups and designed to allow people caught in the criminal justice system to obtain employment and housing.
CALI worked with the District Attorney Association and Professional Association of Background Screeners and
encountered obstacles at every turn. In the end, a few more groups joined in opposition - -but compared to the support,
it was negligible.
>> Congrats to CALI and all who worked tirelessly, and contacted their state assembly representatives!

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