My Trusty Gavel by Brian Turner on Flickr.

The Problem

In the present information age, with access to details about virtually anyone’s life available to all, we often tend to look upon such information as either useful or interesting–or at its worst, embarrassing. However, such easily discoverable online information–some of which may be erroneous–can often have real life consequences involving basic needs like housing and employment.

There is no better example of damage caused by lack of privacy than the easy availability of records of both criminal convictions and arrests in the State of Washington. Once a person is arrested, even if no conviction ever occurs, the record of arrest remains a matter of public record indefinitely. The same is true when charges are filed but later dismissed. Employers screening applicants for work and landlords screening applicants for housing have ready access to this arrest and non-conviction data through literally hundreds of companies offering “background checks.” Most rejected applicants will never know for certain that they were turned down because of an arrest that never led to a conviction.

Current options for cleaning up your record

In Washington, a person who is aware that such information exists has very limited options for “erasing” it from public records. By following a step-by-step process, which usually requires the assistance of an attorney, and meeting many different criteria, one can remove some or all of this information and be legally entitled to then tell a prospective employer or landlord that they “have never been convicted of a crime.” However, the mere fact that the arrest or non-conviction data remains on the record could lead the prospective employer or landlord to conclude the applicant had lied on his or her application. Further, even if the employer or landlord is savvy enough to understand the difference between an arrest and a conviction, there is nothing to prevent them from taking a “better safe than sorry” approach and rejecting the application.

The difficulty sealing your record

In Washington, it is very difficult to seal a record and prevent it from becoming part of your “criminal history.” Our Supreme Court has decreed that the public’s interest in full disclosure trumps the privacy interests of the individual. So in order to seal–or prevent disclosure of–such a record, a person must prove that they have been actually harmed by the record being in the public domain. Simply asserting that the record could make it difficult to find housing or a job is not sufficient. This becomes an almost impossible task because it is not likely that a prospective employer or landlord will tell the applicant the true reason they are being rejected.

Of further concern is the fact that companies offering background checks may be using old databases which still show the information thought to be sealed. Chasing after literally hundreds of these companies is simply not practical.

There are also serious “access to justice” issues with the existing process because many low income individuals simply cannot afford a lawyer to present and argue these difficult motions to seal in court.

Proposed changes in the law

The City of Seattle sought to address this problem in 2013 by enacting an ordinance prohibiting an employer from inquiring about criminal history until after all applicants have first been screened for qualifications. Employers must then take the further step of proving how the arrest or conviction would affect job performance. While a nice first step, this prohibition does not include housing applications, and enforcement of the ordinance will prove to be a daunting task.

Other groups are seeking wider reform–statewide legislation that would allow sealing a record if the mere threat  that this information could cause a denial of suitable housing or employment is established. However, such legislation is not popular with many powerful interest groups including landlords, the press (which always has an interest in full disclosure), and large businesses. Such a legislative debate would also provoke a separation of powers conflict between the courts and the legislature.

Solutions to the problem are therefore hard to come by. What is needed is a holistic look at the pervasiveness of information technology in the 21st century and an examination of how that technology interacts with criminal justice, the public’s right to know, and the often unforeseen and far-reaching consequences to people’s lives. The disproportionate impact of ready availability of arrest and non-conviction data on minorities is also an unfortunate reality, and should fairly be considered in fashioning a solution. Suggested compromises have included time limitations on the availability of arrest and non-conviction data as well as a simplified process that would allow those without the ability to pay for a lawyer to have such information permanently removed from their record. However, nothing that involves balancing individual rights with the public’s right to know is ever easy.

 

Damon Shadid is a Seattle attorney who practices both criminal defense and immigration law. He has been active in many issues involving race and social justice for many years and is a member of Seattle’s Race and Social Justice Roundtable. Damon is currently a candidate for Seattle Municipal Court Judge.

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