The Background Investigator November 2018 Edition

Volume 18 Number 11 November 2018

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Home Office Squanders £229m In 'Incompetent' Outsourcing Of Criminal Record Checks Upgrade A £656m government scheme to upgrade the UK’s criminal records checks system has been branded a “masterclass in incompetence” in a damning Commons report.

The Home Office project to modernise the Disclosure and Barring Service (DBS) has been marred by poor planning, delays and spiralling costs after it was outsourced to a private consultancy, said the Public Accounts Committee.

The programme is more than four years late and costs are expect overshoot its budget by £229m, the report added.

“Government has a crucial role to play in safeguarding children and vulnerable adults but the handling of this project has been a masterclass in incompetence,” said PAC chairwoman Meg Hillier. “None of the costsaving and service benefits set out in the original business case have been achieved.”

In 2012, the government contracted Tata Consultancy Services to design, build and run a new IT system that would modernise DBS and move its services away from a paper-based system.

The project was expected to

be completed by June 2014 but it was delayed from the start and the DBS was forced to extend a contact with its previous contactor, Capita, by two years.

The £1.2 billion system, which has been contracted to EE, is scheduled to launch next year but in February the committee criticised progress as “deeply unsatisfactory”.

The modernisation is still not complete, while the expected total cost has soared Ms Hillier said: “These are from £656m to £885m. testing times for the Home Office. The department also It is not clear when Tata faces huge challenges arisnow expects to complete ing from the UK’s departhe project and the PAC ture from the EU – not said there was “a strong least, potential threats to risk that they may run out security at the border from of time before the contract day one of Brexit. ends in March 2019”.

“On both DBS and ESN the A new feature introduced to Home Office appears either make it easier to check for to have ignored or not fully updates to records has re- understood the needs of the ceived only a “fraction” of end user. It does not fill us the demand expected due to with confidence that all is “a failure to understand rosy on the department’s what service users want”, other major projects. Altadded the report. hough we received verbal assurances that they are It said the project “has not running smoothly, these are delivered the promise of a not enough. cheaper, better safeguarding service for customers”. “We expect the Home Office to demonstrate that, It added: “Negotiations af- when things go wrong, it fecting the future of DBS has learned from and is actare under way and govern- ing on the lessons.” ment must monitor these carefully,” said Ms Hillier.

“It then needs to be straight with Parliament and the public about what, if any, benefits it expects to materialise by the time DBS’s contract with Tata Consultancy Service ends.”

Four million disclosures were issued by DBS in 2016/17, of which 260,000, or 6.1 per cent, contained information that was “potentially relevant to safeguarding”, according to figures published by Whitehall’s spending watchdog earlier this year.

Careers Of People Working With Children Being Destroyed By ‘Misleading Police Checks

shared through police intelligence.”

Ms Whiteley said she had heard of a young woman who lost her “dream job” of working with children in care after she snorted at an undercover police officer on a night out during her “Misleading” criminal rec- university years. ord checks are destroying the careers of people who “She decided, perhaps rawant to work with children, ther foolishly, to snort like teachers have warned. at a pig at a man she suspected was an undercover One woman committed sui- police officer. He was a cide after she lost her job police officer and she was for failing to disclose a dis- told she had committed a order fine for “snorting like public order offence. a pig” at an undercover police officer when at univer- “They told her if she acsity. cepted a penalty notice for disorder and a fine she And another woman was wouldn’t have to go to told she could no longer court, so she accepted that.” work as a childminder because her nephew had been convicted of rape, the National Education Union ATL section’s conference heard.

Delegates at the conference in Liverpool raised concerns the Disclosure and Barring Service (DBS) – which checks criminal records of those applying to work with children – is not fit for purpose.

Josie Whiteley, president of AMiE, the union’s leadership section, said: “The career prospects of individuals are being destroyed by misleading information

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Careers Of People Working With Children Being Destroyed By ‘Misleading Police Checks, continued

and vulnerable adults do need a DBS system that enables them to be protected, but those who work in education need a DBS system that protects them too.”

A statement from the DBS said: “Each year we issue The woman was allowed to around four million certifistart working with children cates to help employers in care. But when her em- make safer recruitment deployer saw the check, they cisions. What is included said she had acted dishon- on our certificates is either estly by not disclosing the set out in legislation or propenalty notice and she was vided to us by the police. dismissed.

“Any non-conviction infor“She felt her career was in mation disclosed on a DBS tatters and two weeks later certificate has been subject she took her own life,” Ms to a decision by a police Whiteley added. force in accordance with a statutory test and with reIn another case, a woman gard to statutory guidance. reported her nephew to the police when he attacked his “It is also important to note girlfriend in front of her that around 94 per cent of when he lived with her. certificates are clear and that a DBS check is one of Ms Whiteley said: “A dec- the key pieces of inforade later, the nephew was mation that form part of convicted of rape and Jane, any organisation’s recruitwho was a childminder, ment decision and should was prevented from work- be considered alongside ing with children for fear other information.” she might invite him back into her home.

“The nephew was related to her husband who she had since divorced, and he was in jail, so he couldn’t possibly have visited her.

Kenya's Maraga Launches Guide Book For Criminal Cases

Maraga said. The CJ spoke in Nairobi on Friday during the launch. He said the book will not replace reference to primary sources such as statutes, judicial authorities and policy directions.

It will only serve as guide for locating the relevant laws. “This book captures the progressive jurisprudence and practices emerging from our superior and subordinate courts on all aspects of criminal procedure,” he said.

The book will incorporates recent policy prescriptions and international law and standards where applicable.

“The sum result shall be improved uniformity, efficacy and consistency in criminal proceedings across the country,” Maraga said.

Although the book is designed for judges and magistrates, it will be useful to other players in the criminal justice system including prosecutors, lawyers, probation officers, children officers, police officers, suspects and students and researchers.

“The Judiciary has been developing a purposive, Chief Justice David Maraga robust, indigenous and pat“She is just one of many has launched a quickriotic jurisprudence that innocent people who have reference book for judges reflects the values, princibeen made unemployable and magistrates presiding ples and aspirations of all in their chosen profession over criminal cases.

Kenyans as reflected in the after police include tenuous Constitution since 2010,” allegations about them or The Criminal Procedure the CJ said. He said Parliaabout their supposed links Bench Book will provide ment has enacted many to criminals in disclosure guidance on status, judicial laws that significantly afinformation.” authorities and policy difect the criminal trial prorections on the cases. cess.

A motion – which said teachers had been arrested, Maraga said the book will “The courts have been at released without charge and improve jurisprudence by the forefront of interpreting put in a position where giving explanations on and implementing these their careers were “at risk court processes and the provisions,” Maraga said. owing to unfair and or in- manner in which justice is appropriate information” on dispensed. The book was

By CAROLYNE KUBWA their DBS – was passed. part of deliverables on sustaining the Judiciary trans- Government It called on the union to formation agenda. Maraga Challenges lobby the government to said the objective of the overhaul the system and transformation is to enRuling Finding ensure that information hance services.

Criminal Record about arrests leading to no further action is not eligible “It shall be a crucial reDisclosure information on a DBS source material for magisSystem Unlawful check. trates and judges during criminal trials, as well as The government is chalGraham Edwards, from the basis for further relenging a court ruling Redbridge, said: “The DBS search, training, partnersystem, as it stands, is not ships, benchmarking, and which said forcing people to disclose minor criminal fit for purpose. Children development initiatives,”

convictions to employers able to move on with our violates human rights laws. lives, achieve our aims and contribute to our communiThe Court of Appeal found ties. I hope the Supreme the programme may have Court will agree with the been have been dispropor- High Court and Court of tionate and unnecessary in Appeal and make the govsome cases, taking objec- ernment take long-overdue tion to a rule stating anyone action to reform the syswith more than one convic- tem.” tion, no matter how minor, must disclose them to po- Her solicitor, Rosie Brigtential employers when ap- house, said her client simpplying for certain types of ly wants to move on with work. her life and is “unable to do so”.

One of the claimants involved is a woman named “The criminal records disin proceedings as P, who closure scheme has twice shoplifted a sandwich and a been ruled unlawful – but 99p book which she beinstead of putting in place lieved was sending her the urgent reform that’s so messages while suffering desperately needed, the from undiagnosed schizo- government has chosen to phrenia in 1999. fight this all the way to the Supreme Court,” she addThe second conviction ed. came when she failed to answer bail for the crime, “We hope judges will agree and she was later given a that this situation is deeply conditional discharge for unfair and disproportionate, both offences. and that it’s time for the government to put things Human rights group Liber- right.” ty, which represents P, said she had committed no of- The Disclosure and Barring fences since and aimed to Service was established in work as a teaching assis2012 to provide details of a tant. job applicant’s previous convictions to prospective The current rules mean she employers. would have to divulge her convictions when applying For certain types of work, and reveal details of her such as with children or medical history in order to vulnerable adults, the explain the circumstances. standard or enhanced certificates issued by the DBS “No one should be left at listed all the job applicant’s such a huge disadvantage previous convictions until when applying for work reforms in 2013 following because of very minor mis- another case against Greattakes they made nearly two er Manchester Police. decades ago when they were unwell,” P said.

A “filtering” process meant single convictions for nonAppeal judges have already sexual offences which were backed the High Court’s not violent and did not lead finding the current scheme to an immediate prison senwas “not in accordance” tence, would not be diswith laws protecting the closed after 11 years, or right to private life under five-and-a-half years if the the European Convention person was under 18. on Human Rights.

But the exemption does not But lawyers for the home apply if someone has more and justice secretary have than one conviction, whattaken the case onwards to ever the circumstances. the Supreme Court, where they are appealing to judges to overturn last year’s findCont. next page ing.

“The current rules are unnecessary, disproportionate and unfair. They have left me and so many others un-

Government Challenges Ruling Finding Criminal Record Disclosure System Unlawful Continued from preceding page

A Public Accounts Committee inquiry accused the Home Office of running a “masterclass in incompetence” over its attempts to improve the DBS scheme after finding an IT modernisation programme was four years late and £229m over budget.

Liberty is calling for the introduction of a more flexible system which considers individual circumstances in cases of old and minor convictions, and considers a person’s risk of harm.

Canada’s Publicly Available Information And PIPEDA In an effort to summarize the general principles that have emerged from court decisions and the Commissioner’s findings to date, the OPC issues Interpretations of certain key concepts in PIPEDA. These Interpretations are not binding legal interpretations, but rather, are intended as a guide for compliance with PIPEDA. As the Commissioner issues more findings, and the courts render more decisions, these Interpretations may evolve and be further refined.

The use of public records Unlock, a charity represent- cithin the Scope of PIPEDA is allowed with or ing people with criminal without consent. convictions, is also intervening in the case.

These exceptions to the PIPEDA are found: Co-director Christopher Stacey said the current sys- https://www.priv.gc.ca/en/ tem has “harsh consequenc- privacy-topics/privacy-laws es and damaging effects on -in-canada/the-personalinformation-protection-andindividuals”. electronic-documents-actHe added: “It deters people pipeda/pipeda-compliancefrom applying for employ- help/pipeda-interpretationment, and for those that do bulletins/ apply it brings high levels interpretations_06_pai/ of stress, anxiety and feelings of shame and stigma. In an effort to summarize It acts as an additional sen- the general principles that have emerged from court tence that often runs for decisions and the Commislife.” sioner’s findings to date, The home and justice secre- the OPC issues Interpretations of certain key contaries, represented by Sir James Eadie QC, argue the cepts in PIPEDA. These Interpretations are not bindcase of P and three other claimants being considered ing legal interpretations, by the Supreme Court rep- but rather, are intended as a resent only a small number guide for compliance with of complex incidents at the PIPEDA. As the Commissioner issues more findings, margins of the scheme. and the courts render more They claimed in P’s case, decisions, these Interpretathere is a pattern of offend- tions may evolve and be ing which justifies disclo- further refined. sure.

I. Relevant Statutory Provisions The hearing, before five justices, is expected to last Personal Information Protection and Electronic Docfor three days and their judgement will be reserved. uments Act, S.C. 2000, c. 5 (“PIPEDA”)

lection, use, or disclosure relates directly to the purof personal information, pose for which the inforexcept where inappropriate. mation appears in the directory, listing or notice; Section 7(1)(d) of PIPEDA personal information that states that for the purpose appears in a registry colof clause 4.3 of Schedule 1, lected under a statutory auan organization may collect thority and to which a right personal information with- of public access is authorout the knowledge or con- ized by law, where the colsent of the individual if the lection, use and disclosure personal information is of the personal information publicly available and is relates directly to the purspecified by the regulapose for which the infortions. mation appears in the registry; Section 7(2)(c.1) of personal information that PIPEDA states that for the appears in a record or docupurpose of clause 4.3 of ment of a judicial or quasiSchedule 1, an organization judicial body, that is availamay use personal inforble to the public, where the mation without the collection, use and discloknowledge or consent of sure of the personal inforthe individual if the person- mation relate directly to the al information is publicly purpose for which the inavailable and is specified formation appears in the by the regulations. record or document; and personal information that Section 7(3)(h.1) of appears in a publication, PIPEDA states that for the including a magazine, book purpose of clause 4.3 of or newspaper, in printed or Schedule 1, an organization electronic form, that is may disclose personal inavailable to the public, formation without the where the individual has knowledge or consent of provided the information. the individual if the personal information is publicly Idaho Repository available and is specified Ends Updates As by the regulations.

Regulations Specifying Publicly Available Information, SOR/2001-7 (13 December, 2000) (“Regulations”)

New System Takes Over

Visitors to the Idaho Repository, the state’s publicly available database for court case, will be greeted Section 1 of the Regulations state that the follow- by a message marking the ing information and classes end of the site’s 16-year of information are specified run. for the purposes of paragraphs 7(1)(d), (2)(c.1) and “Notice: Data on this sys(3)(h.1) of the Personal In- tem is (no) longer being updated as of October 3, formation Protection and Electronic Documents Act: 2018” the site states in bold, capital letters. “We personal information con- are currently transitioning sisting of the name, address to a new records system.” and telephone number of a subscriber that appears in a That new records system, telephone directory that is named Odyssey, will be the tool for public access to available to the public, court information in Idawhere the subscriber can refuse to have the personal ho’s 6th and 7th judicial districts starting Tuesday. information appear in the directory; The Idaho Supreme Court personal information including the name, title, ad- began the transition to the dress and telephone number new system in 2013 after Justice Systems, the comof an individual that appany that manages the Idapears in a professional or business directory, listing ho Repository, announced Principle 4.3 of PIPEDA or notice, that is available it would be discontinuing states that the knowledge support for it. The state and consent of the individu- to the public, where the colmade arrangements in 2014 lection, use and disclosure al are required for the colof the personal information for Tyler Technologies to

set up its Odyssey system.

Twin Falls County was the first to test the system in June 2015. With the final districts transitioning next week, the system will be used statewide.

“We’ve gotten all sorts of feedback over the last three years, some of it good, some of it bad,” said Sara Thomas, administrative director of Idaho’s courts.

The new system has meant attorneys, judges and court staff have had to learn the ins and outs of the website and how to access information. Thomas said the courts are working with Tyler Technologies to make court records available online, but must first implement redaction software to prevent private information from being released.

Court documents may contain private information of the parties involved, including addresses, phone numbers and Social Security numbers. Until the state has a reliable redaction program to prevent access to that information, court records won’t be available on the website except to attorneys, judges and other public employees who are approved for extended access.

The system will eventually allow the Idaho judicial system to become paperless, focusing on digital records. Thomas said this is a cultural shift, since the “official” court record has previously been the original print document.

In the meantime, the public can continue to access court records using a kiosk at the courthouse, with a $1 fee per page to make copies.

There is no charge to review files and take notes.

Thomas said there is no estimate for when court records would be publicly available through the portal.

Reporter Johnathan Hogan

continues

Handwritten Documents, Manila Folders, Carbon Paper — Welcome To Cook County Criminal Court Every workday, attorneys enter criminal courtrooms across Cook County, put away their smartphones and operate in a world that their grandparents would have recognized: accordion-style Manila folders to hold paper documents, handwritten orders for judges to sign, even carbon paper to make copies of the paper filings.

“God help us all if the carbon didn’t take,” said defense attorney Alana De Leon, who had never used the outdated copying method — invented more than two centuries ago — before setting foot in a West Side branch court a few years ago.

While the throwback methods are the frequent butt of jokes — a county government official must have a relative who owns a carbon paper company, attorneys jest — critics say it is detrimental to the criminal courts’ productivity and keeping vital information out of public view.

“To a certain extent ... the lack of transparency kind of is the ugly product of the old system,” De Leon said.

“I don’t know if it’s necessarily on purpose — to keep this information away from the average citizen — but it certainly is a consequence of that.”

Basic information about a criminal case — the charges, which judge is handling the case — is available only on computers at the courthouses themselves.

And even then, the electronic record can be woefully incomplete — and often difficult for newcomers to navigate on antiquated computer systems.

Last week, Daeisha Robinson had little choice but to drive 14 miles from her Far South Side home to the

Leighton Criminal Court Building, the county’s main criminal courthouse on the city’s Southwest Side, to find out about the charges her former boyfriend faced.

It took the 25-year-old another hour before a private researcher in the circuit clerk’s office noticed her plight and looked up the case on the computer terminal.

preme Court dragging its feet in allowing e-filing statewide in criminal cases for the first time just last year. She also blamed Chief Judge Timothy Evans’ office for blocking her from making basic docket information available online for criminal cases.

In an email, however, Evans’ spokesman, Pat Milhizer, denied Brown’s claim, saying his office would consider any such proposal from the circuit clerk.

If the charges had been brought in a collar county, Robinson wouldn’t have had to leave her house to learn of his charges or next court date. It would be Brown defended her efforts available to anyone with an to modernize the court sysinternet connection. tem, citing her efforts beginning in 2009 for clerks “It’s very stressful and con- to make digital scans of fusing,” Robinson said. court documents for view“They have every technolo- ing at public kiosks. gy in the world available.

They’re just not using their But the digital images in resources well.” criminal cases are often missing or incomplete, atIf longtime criminal detorney Spector said. That fense attorney Barry A. means he must still often Spector wants to get up to track down the physical file speed on a case, he runs for a full picture of a case’s into the same problems as history, sometimes travelRobinson. If a potential ing to a judge’s courtroom new client comes to his Ev- to do so. That would be anston office seeking infor- next to impossible for the mation about a loved one’s public to pull off. case, for instance, he can’t help without first going to a “Can you imagine somecourthouse to learn the body just walking up and basic details, a frustrating, saying, ‘Oh, can you go in unnecessary delay, he said. the back and get that file while the judge is on the “That information should bench or whatever?’ ” he be available to the public,” said.

Spector said. “But the public can’t get through the When the system is fully gatekeepers to get to it.” electronic, Brown said, safeguards will be in place Circuit Court Clerk Doro- to ensure that all files are thy Brown bristled at the appropriately scanned and suggestion that her office available for public view. has been slow to adapt to the internet age, telling the The system will also allow Tribune in an hourlong in- attorneys to file documents terview last week that a electronically with the click complete overhaul of the of a mouse — standard criminal case management practice in the federal system is expected to be courts for many years. completed (sometime soon).

E-filing is also available for criminal cases in DuPage, Brown spoke of an McHenry and Will coun“interactive” system in ties. which much of the work performed by attorneys and Brown said her critics forjudges in the courtrooms get how even more backcould be done electronical- ward the circuit clerk’s ofly. Brown said her ultimate fice was when she first took goal is to end the reliance office in 2000. on ink and paper.

“When I got here, this Brown said her hands have clerk’s office didn’t even been tied by the Illinois Su- have an email system, we

didn’t have voicemail,” she said. “So this system, along with the rest of the country’s case management systems, (is) in a transitory state of conversion.”

In the meantime, attorneys still struggle to find carbon paper that isn’t scratched up and faded. They also lament having to scramble sometimes from courtroom to courtroom to locate the proper paper forms they need.

And De Leon said it is still too difficult for attorneys — as well as the public — to get the information they deserve.

and journalists who want to use automated access tools to investigate companies’ online practices and conduct audit testing. The problem: the automated web browsing tools they want to use (commonly called “web scrapers”) are prohibited by the targeted websites’ terms of service, and the CFAA has been interpreted by some courts as making violations of terms of service a crime.

The CFAA is a serious criminal law, so the plaintiffs have refrained from using automated tools out of an understandable fear of prosecution. Instead, they decided to go to court. With the help of the ACLU, the plaintiffs have argued that the CFAA has chilled their constitutionally protected research and journalism.

“It definitely is a consequence of this system that it is just not made to be userfriendly,” she said. “It’s not designed to be easily accesThe CFAA makes it illegal sible.” to access a computer connected to the Internet

By Megan Crepeau “without authorization,” but the statute doesn’t tells us what “authorization” or D.C. Court: “without authorization” Accessing Public means. Even though it was passed in the 1980s to punInformation Is ish computer intrusions, it Not A Computer has metastasized in some jurisdictions into a tool for Crime companies and websites to Good news for anyone who enforce their computer use uses the Internet as a source policies, like terms of service (which no one reads). of information: A district court in Washington, D.C. Violating a computer use policy should by no stretch has ruled that using automated tools to access pub- of the imagination count as licly available information a felony. on the open web is not a In today’s networked computer crime—even when a website bans auto- world, where we all regumated access in its terms of larly connect to and use computers owned by othservice. The court ruled that the notoriously vague ers, this pre-Internet law is causing serious problems. and outdated Computer It’s not only chilled disFraud and Abuse Act crimination researchers and (CFAA)—a 1986 statute journalists, but it has also meant to target malicious computer break-ins—does chilled security researchers, not make it a crime to ac- whose work is necessary to cess information in a man- keep us all safe. It is also ner that the website doesn’t threatening the open web, as big companies try to use like if you are otherwise entitled to access that same the law as a tool to block competitors from accessing information. publicly available data on The case, Sandvig v. Ses- their sites. Accessing publicly available information sions, involves a First on the web should never be Amendment challenge to the CFAA’s overbroad and a crime. imprecise language.

The plaintiffs are a group of discrimination researchcontinued next page ers, computer scientists,

D.C. Court: Accessing Public Information Is Not A Computer Crime, continued from preceding page

As law professor Orin Kerr has explained, publicly posting information on the web and then telling someone they are not authorized to access it is “like publishing a newspaper but then forbidding someone to read it.”

Luckily, Judge John Bates recognized the critical role that the Internet plays in facilitating freedom of expression—and that a broad reading of the CFAA “threatens to burden a great deal of expressive activity, even on publicly accessible websites.” The First Amendment protects not only the right to speak, but also the right to receive information, and the court held that the fact “[t]hat plaintiffs wish to scrape data from websites rather than manually record information does not change the analysis.” According to the court: "Scraping is merely a technological advance that makes information collection easier; it is not meaningfully different from using a tape recorder instead of taking written notes, or using the panorama function on a smartphone instead of taking a series of photos from different positions.”

Judge Bates did not strike down the law as unconstitutional, but he did rule that the statute must be interpreted narrowly to avoid running afoul of the First Amendment. Judge Bates also said that a narrow construction was the most common sense reading of the statute and its legislative history.

interpretation of the CFAA invoked by LinkedIn, if adopted, could profoundly impact open access to the Internet, a result that Congress could not have intended when it enacted the CFAA over three decades ago.”

The court has not yet determined what the cost for that system will be, who will be able to subscribe or what kinds of cases will be available on the internet.

Saufley made the unexpected announcement as a hearing on proposed rules submitted by a task force The government argued on transparency and privathat the plaintiffs did not have standing to pursue the cy got underway at the case, in part because there Capital Judicial Center in Augusta. The task force was no “plausible threat” recommended the public that the government was going to prosecute them for not have online access to their work. But as the judge court documents. pointed out, the government has attempted to pros- The chief justice’s anecute “harmless ToS viola- nouncement caught speakers who’d lined up to options” in the past. pose the proposed rules off The web is the largest, ever guard, including Mal Leary -growing data source on the of Maine Public. He was the only member of the task planet. It is a critical resource for journalists, aca- force to recommend that what currently is public on demics, businesses, and ordinary individuals alike. paper at a courthouse should be public online.

Meaningful access sometimes requires the assistance of technology to auto- “I was pleased to hear the mate and expedite an other- chief justice state the court wise tedious process of ac- has already decided that all cessing, collecting and ana- public court records will be lyzing public information. available on the internet,” Using technology to expe- he said in an email after the three-hour hearing. “This is dite access to publicly what I proposed in my disavailable information shouldn’t be a crime—and sent, that the court should not set up a system with we’re glad to see another some records online and court recognize that. others only available to the public at the courthouse.

BY JAMIE WILLIAMS This is a victory for common sense.”

Public Will Be

Able To Access Maine Court Documents Online For A Fee — Chief Justice

The judiciary has announced that the public would be able to access some court documents online once the $15 million electronic case filing system is implemented over the next few years, but that it would not be free.

Chief Justice Leigh I. Saufley said that the system Judge Bates is the second would be similar to the fedjudge this year to recognize eral judiciary’s Public Acthat a broad interpretation cess to Court Electronic of the CFAA will negative- Records or PACER. Subscribers to that system pay ly impact open access to both an annual fee and a fee information on the web. for each page viewed Last year, Judge Edward online.

Chen found that a “broad

public access to court documents. First Amendment advocates, lawyers and a private investigator also supported online access.

Attorneys and prosecutors in Maine’s juvenile justice system strongly urged the court to seal all cases involving minors.

Under state law, divorce cases involving children, child protective cases and juvenile criminal cases that do not involve felonies are sealed from the public.

Saufley said those categories could be expanded under the new rules or by the Legislature.

the court’s website and public comment on them would be sought, after which the final version would be promulgated.

The violations bureau, which handled more than 86,000 traffic tickets and more than 50,000 other civil violations in the year that ended June 30, 2017, is scheduled to begin going online this fall.

Courts in Penobscot and Piscataquis counties will be the pilot project for the implementation of the electronic case filing system in late summer or early fall of 2019, according to inforA paper issued last July mation posted on the court tiled, “Best Practices for system’s website. In the Court Privacy Formulayear that ended June 30, tion,” written by the Na2017, more 15,000 new tional Center for State cases, half of which were Courts and the State Justice criminal cases, were filed Institute, both located in in those counties, about Virginia, recommended 3,400 fewer than were filed that documents that are in Cumberland County. public at the courthouse should be public online.

The completion date for implementation of the sysThe chief justice’s statetem statewide is December ment Thursday echoed 2021. what she told Legislature in 2014 when she sought ap- By Judy Harrison proval to issue the $15 million in bonds to fund the Hiring Managers digital case filing system.

“I know that I don’t have to tell you, the Maine Legislature, that the public deserves electronic access to its government,” Saufley Representatives from the said. “I can go online from state’s major daily newspa- anywhere and find the pers — the Bangor Daily pending bills, the sponsors News, the Portland Press and committee assignHerald and the Lewiston ments, the status of those Sun Journal — and the bills, both in the committee Maine Broadcasters Asso- and on the floor, the lanciation all told the justices guage of proposed amendthat they welcomed Sauments, committee hearing fley’s decision that some dates, and all written testicourt documents would be mony. public.

“We seek nothing less for “This is good news for Maine people’s access to communities around Maine justice,” she continued. that depend on news about “Case information, schedthe court system,” Dan ules and public documents MacLeod, managing editor should be easily accessible. of the BDN, said after the And the system must be hearing. “As the judiciary carefully designed to assure develops more specific pol- that certain private inforicies around the use of the mation, such as Social Sedigital system, I hope that it curity numbers or victims’ continues to consider the addresses, are well protectpublic’s need for transpar- ed.” ency.”

Saufley said Thursday that Journalists were not the on- early this fall the revised ly people advocating for rules would be available on

Share The No. 1 Resume Lie

by Ruth Umoh

While hiring managers hate all resume lies, a recent survey finds some lies are worse than others.

The jobsite TopResume asked 629 professionals to rank the most serious of 14 categories of resume lies.

Nearly all respondents, 97 percent, said they'd reconsider candidates with any type of lie. Nearly half those surveyed were HR professionals, recruiters or hiring managers.

Topping the list were lies about technical capabilities, licenses and criminal records. Yet the biggest deal breaker, according to respondents, was lying about an academic degree. 89 percent of hiring managers felt this was the most serious lie, inching out even criminal records. continued next page

Hiring Managers Share The No. 1 Resume Lie,

change your job-hunting strategy. Try targeting companies that don't place a heavy premium on academcontinued ia, advises Augustine. Surprisingly, you can find It's one of the most commany of these organizamon lies that applicants tions within the tech sector, tell, says TopResume casuch as Google, IBM and reer advice expert Amanda Apple. You might also Augustine. Many candiscope out careers in indusdates don't want to be dis- tries such as healthcare, qualified from a search where it's possible to find when a job listing asks for rewarding well-paid jobs candidates with degrees. without a classic four-year education.

Still, it's a dangerous lie to tell, says Augustine. EmFinally, leverage your proployers can easily verify fessional and social netthis information through a work, says Augustine. Embackground check. ployers increasingly rely on internal referrals and you Instead, be honest and up- stand a better chance of front about your level of getting hired — even when schooling, she says. "So don't meet all the job remany people assume that quirements — if you can others have flawless rebypass the applicant tracksumes so they want to fib," ing system and get your says Augustine. "Ask your- resume into the hands of a self what skills you have to person who can vouch for offer and focus on that." you and fight for you.

If your degree is still in progress or you're taking a semester hiatus, be clear about that on your resume and note the expected graduation date. Trust can be hard to regain if hiring managers discover you've misrepresented yourself.

Candidates with relevant coursework but no degree should be sure to list their classes. This can give you an advantage if those classes relate to the position for which you're applying or if you picked up skills that could be beneficial in the prospective role, says Elaine Varelas, managing partner at career consulting firm Keystone Partners.

And don't be too hard on yourself. Augustine suggests you read job descriptions carefully since some will ask for a degree or equivalent experience. For example, if you're applying to a job as a web designer and you lack the requested college degree, you can note that you've been working in the field for a number of years and highlight the projects you've worked on and the skills that you've acquired through hands-on experience.

More Than 675,000 Offenses Weren't Entered Into Virginia Criminal Records System

seem to be contributing to the lack of fingerprints, including confusion when fingerprints should be taken, manpower and technology issues, and authorities filing just one set of fingerprints for multiple charges.

In some cases fingerprints simply weren’t taken when they should have been, officials said. In others, offenders were fingerprinted and incarcerated but fingerprints were never attached to the specific charge that led to a conviction.

The CCRE, established in 1966 and maintained by the Virginia State Police, requires that fingerprints be included with the final court outcome in order for an offense to be applied to someone’s official criminal record. The database includes cases where the defendant was found guilty and cases where charges were dropped.

According to the report, a total of 751,154 offenses are being kept in a separate “hold file” because of errors. About 90 percent, or 675,081 offenses, involved missing fingerprints. The records in the hold file date back to the 1990s when the state began digitizing what More than 675,000 offens- was previously a paperes, including hundreds of based system, according to murder and rape convicofficials. tions, have not been entered into Virginia’s main crimi- “The Crime Commission nal record database because study reflects the reality of missing fingerprints, ac- that criminal history reccording to a state report ords, like all records, are released Thursday. only as good as the data inputs,” said state police Defendants were found spokeswoman Corinne Gelguilty in almost 58 percent ler. “Accurate decisions on of the cases, according to firearms background the Virginia State Crime checks, employment, and Commission report that sentencing decisions, found sizable gaps in crimi- among many others, rely on nal records used by law en- the completeness of these forcement and private em- records.” ployers conducting background checks on potential Sixty-five percent of the employees. The records are offenses not entered into also used in gun sales and the database were misdesex offender registration. meanors, and 35 percent were felonies.

The database — the Central Criminal Records ExThe 132,083 felony offenschange — is also used es where the defendant was throughout the criminal jus- found guilty included 318 tice system to determine convictions for murder/ how offenders are punished homicide and 1,308 rape based on their records. convictions.

the database were probation the issue,” Geller said. violations.

By Graham Moomaw State Sen. Mark Obenshain, R-Rockingham, said the The EEOC sheer volume of incomplete Continues To records “certainly sounds like a huge issue.”

Scrutinize

“The data speaks for itself,” Criminal Record said crime commission at- Screening torney Nathan Hittle, who Policies previously worked in the Rod M. Fliegel and Juie A. Richmond prosecutor’s of- by Stockton fice. “I think that the magnitude of the issue was Employers that use crimisomewhat surprising.” nal record-screening policies must continue to be Hittle said the issue could- vigilant about compliance n’t be attributed to just a with all applicable laws and handful of localities. should know that the EEOC’s scrutiny of such “It is a widespread probpolicies, while perhaps lem,” Hittle said. scaled back, has not ended.

To the contrary, the EEOC Crime commission staff has demonstrated a continrecommended several ued interest in discouraging changes to tighten finger- employers from directly or printing procedures, includ- indirectly screening out job ing regular reporting on applicants who belong to incomplete records, asking protected classes under Tistate police to fix any istle VII and tend to be arsues involving people alrested and convicted at disready incarcerated or under proportionately higher supervision and better rates. training for law enforcement and court officials.

The EEOC recently reached a conciliation The commission also sug- agreement with a nationgested asking state police to wide retailer, Rooms To Go check the hold file for the - a larger furniture retailer, most sensitive criminal his- to resolve claims of race tory checks, including sex discrimination brought by offender registration, fire- an African-American appliarm background checks and cant whose offer of embackground checks on ployment was rescinded those applying to work in due to his background law enforcement. check. The EEOC’s view is that background check poliThe report also floated cies tend to have a discrimmore sweeping policy inatory effect on minorities, changes, such as changing because they are disproporstate law to require finger- tionately incarcerated and print collection when a therefore make up the largsummons is issued rather er percentage of the populathan waiting for charges to tion with criminal records. be heard in court.

Geller said the crime commission’s study has “greatly assisted” state police in understanding the source of the problem and possible solutions. She said the agency is participating in a statewide work group led by Secretary of Public Safety and Homeland Security Brian Moran to try and address the incomplete records.

The EEOC’s press release, dated September 24, 2018, explains that the retailer agreed to the following changes to its background check policies: (1) remove any blanket exclusions for criminal convictions; (2) provide an individualized assessment for all applicants; (3) postpone questions about criminal convictions until later in the hiring process; and

“We look forward to working with Virginia’s 400 law continues next page If you haven't snagged that The report identified a vari- Around 40 percent the felo- enforcement agencies and degree yet, you might also ety of systemic flaws that ny offenses not entered in court systems to reconcile

Important Takeaways From The 2018 NAPBS Annual Conference Posted on Linkedin by Cody Farzad

Employers Choice Screening had the opportunity to attend the 2018 NAPBS Annual Conference held in Baltimore, Maryland (MD) this week. The event hosted over 1,000 attendees and more than 45 exhibitors providing services to complement solutions to consumer reporting agencies (CRA).

The theme for the 2018 NAPBS Annual Conference was “Passport to the World,” which addresses the shift in employers’ need to screen applicants on a global level.

It is important to highlight not only the importance of global screening, but also highlight additional themes communicated by the presenters at the 2018 NAPBS Annual Conference.

What Consumer Reporting Agencies and Employers Can Do to Avoid a Lawsuit This topic seems to dominate most HR conferences our team has attended for the past few years. Due to the Human Resources industry constantly changing and evolving, end-users along with their consumer reporting agencies (CRA) vendor must be aware of these changes in order to provide compliant background checks. Compliance is what ultimately decreases an organization’s exposure to liability.

Three main areas that employers and CRAs are being sued by plaintiff attorneys for: 1.) Non-Compliant Disclosure and Authorization Forms Non-compliant disclosure and authorization forms still remains the number one reason why employers are being sued. In today’s day and age, it is shocking that there are still employers that do not prioritize getting their disclosure and authorization forms in com-

pliance with federal regula- the FCRA is the opportunitors. ty to dispute any adverse information on their report Current law states that the with the consumer reportdisclosure and authorizaing agency that procured tion form must be a the background check. standalone document separate from any internal ap- Once an employer elects to plication and/or onnot hire an applicant based boarding forms. Furtheron the results of a backmore, the disclosure must ground checks, they must be separate from the aufollow the pre-adverse and thorization. This essentially adverse action process. In a makes the form two-pages nutshell, the employer is in length. required to provide a copy of the background screenSecondly, if the disclosure ing report and contact inhas extraneous information formation of the CRA to such as a release from lia- the subject of the report, bility for example, that con- allowing them to identify fuses the applicant. As a any inaccuracies reported. result of this, the end-user and CRA can be held liable If it is determined after five for violating the Fair Credit business days that the reReporting Act (FCRA). port contained accurate and up-to-date information, the Lastly, residents in the state adverse action letter must of California (CA), Oklaho- be sent notifying the applima (OK), and Maine (MN) cant that they will no longare eligible to a receive a er be considered for emcopy of their background ployment. check report every time an employer makes a request; Global Screening is on the therefore, organizations are Rise required to have a check The 2018 NAPBS Annual box on their disclosure Conference added an addiform that allow residents tional emphasis for organifrom those states to indicate zations to conduct backwhether they wish to reground checks internationceive a copy of their back- ally. All attendees walking ground screening report. through the exhibition hall would have noticed an in2.) Employers Not Using creased presence from inAccurate Information ternational CRAs covering Employers and CRAs have countries such as India, a duty to ensure maximum Philippines, UK, and Canapossible accuracy when da. These data providers reporting and utilizing pub- are physically located in lic record information. This these countries and have means that they must report built relationships to both the most up-to-date infor- streamline and automate mation from courts, data international screening. providers, and other furnishers of information in With new data protection order to make welllaws being issued by the informed hiring decisions. European Union General Data Protection Regulation If employers are receiving (GDPR) and Canada’s new non-conviction information data breach laws, organiza(arrest, pending, expunged, tions and CRAs that conor dismissed), they are po- duct business outside of the tentially setting themselves United State must ensure up for a lawsuit because the compliance with new regumajority of new Ban-thelations when handling perBox and Fair Chance Act sonal identifiable inforlaws require employers to mation. only use convictions when making an employment de- The European Commission cision. has determined the following to be considered per3.) Not Providing Consum- sonal identifiable infoFers the Opportunity to Dis- mation: pute Findings Background Name Checks Home Address One of the main protections Photo provided to consumers by Email Address

Bank Details Social Media Posts Medical Information Computer IP Address Similar to regulations in the United States, employers must certify a permissible purpose for collecting consumer data information.

Investing in Integrations with Applicant Tracking Systems Due to the advent of technology and human resources software, almost all different types and sizes of employers are using some form of an Applicant Tracking System (ATS).

These systems help to consolidate the majority of the traditional HR functions into one platform.

more flexibility in the fact that they own their portal and have internal developers dedicated to facilitating these types of engagements in-house.

The most important takeaway gathered from the 2018 NAPBS Annual Conference is to “invest in your future by investing in integrations.”

The EEOC Continues To Scrutinize Criminal Record Screening Policies, continued

and (4) require its human resource employees and This allows for data provid- other essential staff to participate in mandatory imers such as consumer replicit bias training. The porting agencies, training EEOC hopes that these organizations, and insurance organizations to inte- changes will give applicants a fair chance at emgrate their software with ployment by delaying any the ATS. Establishing an integration with an ATS is consideration of their criminal history until after the not as easy as one would applicant has been evaluatthink. ed on their qualifications.

The first issue is the upfront cost to build an inte- This is not the first time gration with the end-users that the EEOC has gone ATS, which can range from after an employer where the $1,000 to $15,000 in setup background check policies costs on average in addition appears to deter AfricanAmerican applicants from to annual fees, maintenance, and upgrades, which applying for a position with are generally not included. an employer. The EEOC’s guidance on criminal backIn most cases, the CRA would pass these fees onto ground checks in employthe employer, which could ment, issued in 2012, notes be a deal breaker based on that consideration of criminal records can result in the discrepancy between the grand total and the ini- both disparate treatment discrimination (where an tially quoted cost. employer declines to hire a The big question is how a minority because of a crimCRA may stay competitive inal record) and disparate with these types of engage- impact discrimination ments when the cost is as- (where an employer’s practice of relying on criminal tronomical. A simple anbackground checks disproswer is to invest in these integrations because their portionately results in technology is here to stay. screening out minority applicants).

Another solutions is to reevaluate the CRA’s cur- The EEOC and plaintiffside firms continue to purrent platform or portal to gauge if it is a Software as sue claims involving crimia Service (SaaS) model or nal record screening poliproprietary. If the CRA uti- cies. It is therefore essential lizes a SaaS solution, it is that all employers take measures to comply with crucial for them to have open communication with ban-the-box laws and the Fair Credit Reporting Act their vendor to explore these integrations and po- (FCRA), as well as updating the recently-enacted tential shared the costs.

FCRA statutory summary of rights.

Proprietary systems have

Public Records Expert Michael Sankey Honored As First Recipient Of NAPBS Lifetime Achievement Award Written By Employment Screening Resources(ESR)

On October 14, 2018, public records expert Michael Sankey was honored as the first recipient of the National Association of Professional Background Screeners (NAPBS) Lifetime Achievement Award. Sankey was part of the steering committee that in 2003 founded the NAPBS, a professional trade association for the background screen-

ing industry, and he was edited over 150 compreelected to the first Board of hensive reference publicaDirectors in 2004. tions about access to county, state, and federal public The Lifetime Achievement record information. He is Award is the highest honor regarded as a leading indusawarded by NAPBS and try expert in public records, recognizes an individual’s criminal record access, contributions during their state Department of Motor career to advance excelVehicle (DMV) record aclence in the screening pro- cess policies. fession. According to the NAPBS, criteria for the Sankey was the founder award recipients include and former chief executive having made outstanding officer (CEO) of BRB Puband ongoing accomplishlications, the nation’s premments to the screening pro- ier publisher of reference fession and/or to the sources and websites used NAPBS over a lengthy pe- for locating public records. riod of time in their profes- BRB’s books, online subsional lives. scriptions, and database products point the way to Sankey has more than 30 over 34,000 government years of experience reagencies and postsearching public record ac- secondary accredited cess policies and proceschools, and 3,500 record dures. He has authored or vendors who maintain,

search, or retrieve records.

Rosen, the founder and CEO of Employment BRB Publications is a past Screening Resources® recipient of the Publisher of (ESR), a leading global the Year award from Quali- background check provider ty Books and is a past win- headquartered in the San ner of a Product Achieve- Francisco, California area. ment Award from the Information Industry Associa“Mike’s active participation tion. Facts on Demand and encouragement were Press, an imprint of BRB, essential to the publication specializes in business of ‘The Safe Hiring Manumanagement, background al,’” noted Rosen, who also investigations, Internetwrote ‘The Safe Hiring Aurelated references, and re- dit’ – which was edited by search publications found Sankey and published by in book stores.

Facts on Demand Press – and was chair of the steerSankey was the publisher ing committee that founded and a co-editor for all three the NAPBS. “Without his editions of “The Safe Hir- participation, it is hard to ing Manual,” the first com- see how the book would prehensive guide to back- have been published.” ground checks for employment purposes published by Sankey was also coFacts on Demand Press and founder and Director of the written by Attorney Lester Public Record Retriever Network (PRRN), one of the largest trade associations representing professionals in the public record industry. PRRN was the first group to adopt Industry Standards and a Code of Professional Conduct in the public record retrieval industry. In 1973, Sankey received a Bachelor of Science degree from Arizona State University.

Scare Tactics In Hungary With the onset of GDPR, yes, there have come more controls om the collection, use.and retention of personal information.

Recently there was an article floating around the interent, "Hungary: Employers unlawfully requesting criminal records from employees face fines.

Scary, right? Yet this article is about the application of GDPR rules in Hungary.

Deep inside the article, if you read pass the headline, it says, "Companies still have certain means to run some background checks on their applicants..and processing personal criminal data.”

Typical GDPR talk - just follow the rules, get an explicit consent that is clear and understandable.

Tenant Screener RealPage Pays $3M For Imprecise Criminal Records Tool After the U.S. Federal Trade Commission accused tenant screening company RealPage of falsely linking some prospective renters to criminal records, the company has agreed to shell out $3 million in a penalty settlement.

“We were disappointed that the FTC singled out RealPage for an issue that has confronted the entire screening industry, namely how to match applicants with common last names to public records when most courts do not make social security or driver’s license numbers available as part of those records,” RealPage said in a statement. “While we disagree with the FTC’s assertions, we agreed to settle this matter in order to avoid the expense and distraction of litigation.”

RealPage further claimed The FTC accused RealPage that the FTC could not of violating the Fair Credit point to any tenant who has Reporting Act by improper- actually been incorrectly ly screening the backlinked to criminal record. ground information of ten- The $3 million fine is, acants applying for apartcording to the FTC, the ments. The company, highest settlement ever which is based in Richard- reached with a screening son, Texas and was found- company. ed in 1998, counts tenant screenings and an online “You shouldn’t get turned payment tool among the down for an apartment bevarious services it offers cause someone has the rental property managers. wrong information about you,” Andrew Smith, direcThe government organiza- tor of the FTC’s Bureau of tion claims that, between Consumer Protection, said January 2012 and Septem- in a statement. “This case ber 2017, RealPage could shows that, especially with have incorrectly linked pro- today’s tight rental market, spective tenants to criminal we will hold tenant screenrecords. At the time, Real- ing companies responsible Page’s automated system for the accuracy of their built screening reports us- reports.” ing exact spellings of an applicant’s last name but

by Veronika Bondarenko non-exact spellings of their first and middle names. (It Police Have No moved to a new matching Procedure To technology in September 2017.)

Verify Criminal As a result, someone named Mark Smith could have potentially turned up as a Marc Smith and been linked to somebody else’s criminal record.

RealPage denied the allegations put forth by the FTC by claiming that the FTC focused on only a “minuscule fraction” of its screening results. It further added that this type of “soft -matching” is a common problem across the industry, from which multiple companies are trying to move away.

Still, the company has agreed to pay $3 million in order to settle the case.

crime.

If the accused returns to city and starts working at some other place with a different name, there are mere chances that the police would be able arrest him due to lack of authentic information and database.

As per Heera Singh Chand, vice-president of a Nepalese society, Mool Parvah dure to get Nepal nationals Akhil Bharat Nepali Ekta living in city verified.

Samaj, there are more 8,000 to 10,000 Nepal naCanadian Police tionals currently living in Ludhiana and working in Records Might different sectors, which are Go Online usually unorganised.

He claims that most of the Nepalese enter India with their identity cards issued by the Nepal government for their verification.

However, as per police sources, Nepal nationals enter India without any proof and do not register themselves with the local police.

If police want to verify their credentials, they need to send their details to the Nepal government through home ministry, which is a lengthy process.

Similarly, police cannot go to Nepal directly and arrest the accused in case he/she, after committing crime in India, has gone into hiding there.

Inspector Paramjit Singh, in -charge of the community police resource center Record Of (CPRC) says in case of verification of the records of Nepalese labourers or tenants from Uttar Pradesh, Bihar, UttaEven as Ludhiana police have been persuading resi- rakhand or any other Indian dents to get the verification state, the police send the person’s detail to their of their tenants, domestic counterparts in the particuhelps and employees and lar village or city. The polodging cases against defaulters under IPC Section lice station concerned then replies with the record.

188 for not following the orders issued by the comThe inspector adds that missioner, they have no they do not get applications method to verify the past for verification of Nepalese criminal record of Nepal residents living and worknationals, who are living ing here. “Hence we do not and working in city since proceed to verify them,” he decades. says.

The police department renWhen contacted, police ders helpless in case any Nepalese flees back to his commissioner Sukhchain Singh Gill said the police country after committing department had no proce-

revenue for the police, but requires two full-time employees to perform that work.

Forrest Green Solutions Ltd., in cooperation with the Cobourg Police Service,

By Darren Taylort can build a webpage for The Sault Ste. Marie Police Sault Police, linked to the Sault Police website, Services Board has given whereby citizens needing a its approval to a new, criminal record check may online criminal record check system, which, while register on that website. more expensive for citizens, will be more conven- The online application will go to Cobourg Police, who ient. will then complete the application and ship it back to The move comes after a recent KPMG report urged the client.

Sault Police to find ways to save money using technolo- Forrest Green will charge gy, said Deputy Chief Sean the client $10, Cobourg Police will charge the client Sparling. $5, a revenue stream for As things currently stand, a both agencies. civilian employee at the front desk of the Sault Ste. By doing so, Sparling anMarie Police Service build- ticipates Sault Police can ing processes criminal rec- free up one or two civilian ord checks for employment employees, to be reassigned within the organiand volunteers (such as hockey coaches and many zation. others).

By not doing so, Sparling Roughly 5,400 checks are said Sault Police could lose about $30,000 in revenue being done each year, annually. bringing in $125,000 in

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