Suitability Assessment Program Guidance: Appendix II. Options for Obtaining Criminal Records

An entity may use the campus police department, or public safety office. There may be privacy limitations but an investigator can be recruited to serve in a role that supports the RO.

An entity may also follow the procedures provided by the state, though public university may not be able to do this.

Additionally, there are a number of vendors that provide criminal background and civil order checks on the internet. Reports are usually provided as a digest of all findings instead of providing each official report for each jurisdiction.

An entity may also hire a private investigation firm for this function. Entities may prefer this option because a comprehensive search can often be performed within minutes. There are competent and professional outfits that are available that routinely provide these types of services for a nominal fee.

Finally, the entity may require that the applicant provide the records him/herself by contacting the appropriate State/local agencies. If State law prohibits the registered entity from conducting a criminal records check on applicants, we recommend that access to Tier 1 BSAT depend on an applicant providing a certified criminal record from places of residence in the past 7 years, or since the age of 18, whichever is shorter. If this mechanism is utilized at an entity, we recommend that this request be disclosed during the application process to access Tier 1 BSAT.

Note: An entity may consider conducting a criminal conviction and arrest history record check for individuals at any time prior to granting access, and as part of an ongoing suitability monitoring program for Tier 1 BSAT. Entities are encouraged to employ institutional resources already in place in consideration of best practices for implementing these records checks.

Entity leadership should take into account that laws differ by state and municipality regarding the legality of employers requesting criminal records checks. Entity leadership could utilize information provided by the applicant regarding time spent in other countries, states, and localities (e.g., prior residences, employment history, etc.) to guide criminal background checks.

If an applicant has resided in other countries, states, and localities, a local criminal background check may be insufficient. A broader check to include other states is recommended for completeness and to address current gaps in criminal records databases because:

• No central repository exists for federal, state, and local (e.g., county, parish, municipal, etc.) criminal records.
• Not all states have automated systems for collecting data from reporting agencies and local jurisdictions. The content, accuracy, quality and timeliness of the data vary considerably among the states.
• No federal law imposes standards for collecting, indexing, searching, and using criminal record data. Among the 50 states, standards vary for collecting the four types of criminal records – arrest, criminal court (federal, state and local), corrections (federal, state and local), and state criminal repository records.

The RO and/or entity leadership may find reviewing these records useful to ensure that all concerning criminal activity is taken into account when making suitability determinations. Therefore, we recommend that entity leadership discuss legal mechanisms for obtaining this information with their legal counsel, HR professionals, local security or law enforcement, or their local FBI WMD Coordinator. It is up to each entity to determine what type of check may be sufficient for a particular institution. Of note, several states are beginning to provide records publicly via the internet (e.g., court actions). An ideal check would include obtaining information in every country, state, and/or county that the applicant has lived, worked, or attended school.

Entities should consider the following information:

• Criminal records may contain errors.
• Entities are encouraged to verify criminal history before the adjudication process begins. This is especially true when using an ‘online source.’
• Check the local records. Many jurisdictions have government owned and operated online access where the accuracy of the conviction record can be verified.
• Check the legal docket for the court in question. Dockets contain more information than simply conviction data; they have the history of the case.  Many jurisdictions have online access where the accuracy of the conviction along with any future matters (set-asides, expungements) which affect the record.
• If the conviction record conflicts with a local record check, or the docket reveals additional information, the criminal data may no longer meet standards to be considered for adjudication.