In most circumstances, the records of courts and state agencies housing criminal records are available to the public. The misuse or abuse of this public access has traditionally been minimized by “casual barriers” to the records. The necessity that indexes and court files be reviewed in a clerk’s office in a courthouse is the most common of these barriers. Other casual barriers include limitations on the number of files that can be viewed on a given day, a requirement that an appointment be made to view a file, and the requirement that anyone requesting to view a court file be required to present their drivers license to a clerk.

The unregulated release of court records over the internet removed these casual barriers to misuse or abuse of the records. As one member of the Texas Supreme Court’s Advisory Committee posited last year, an identity thief in Indonesia has the ability to begin collecting information from Texas court records without any hindrance from the clerks or others charged with protecting the public from misuse of their information.

As courts and agencies begin to reexamine their use of the internet, they risk missing the administrative and public policy advantages of using the internet to make their records available to the public. At the same time, the screening industry and media (two of the strongest advocates for internet access to records) risk their own credibility by advocating too liberal an unfettered release of information over the internet.

Responding to a few court record-related identity theft incidents that are anecdotal if not apocryphal, some courts have either fully removed their records from the internet or so stripped the records of identifiers that they have been rendered unusable.

The complete removal of records from the internet results in increased office traffic and work for court clerks, which in turn result in greater administrative costs to be shouldered by taxpayers. It also delays access to the information by those most often seeking the information for legitimate purposes.

The redaction of identifiers from internet-based records, particularly dates of birth, addresses, or social security numbers, render the records practically unusable for any purpose. Additionally, if employers uneducated in the proper use of such limited records access them over the internet, these name-match-only records may harm individuals who have the same names as actual criminal offenders.

The employment background screening industry and the media rely heavily on access to the courts’ records. (Most of the significant decisions in favor of open court records are the result of lawsuits brought by the media and the screening industry has benefited greatly from these efforts.) The ability to access court records over the internet has been a great asset to both industries. However, their arguments for retaining wide open internet access to indexes, identifiers, and, in some cases, case file document images fail to recognize how drastically the public’s view of personal privacy has changed since 2005, the year of data breaches.

When educated on the important public safety and commercial security role played by employment screening firms, most reasonable people understand why access to court records is required. However, convincing the public that their neighbors, coworkers, or a data aggregator in Indonesia should have unregulated internet access to their court records is a tougher proposition.

Unlike the media, the screening industry has no unique Constitutional protections. With a simple vote or the stroke of a pen, the ability of firms to conduct background checks could change drastically or be eliminated altogether. Limitations on internet access to records could, intentionally or not, also be applied to access to the records in the courthouse. This constant threat should be considered whenever the industry advocates any changes in public policy.

Rather than arguing for unregulated internet access to court records, the screening industry would be wise to get ahead of the curve and advance reasonable solutions that recognize the public’s privacy concerns. Such proposals should include:

1. Account-based access to records – Those requesting access to online court records should be required to establish an account with the agency publishing the records.
2. Due diligence - The agency publishing court records on the internet should ensure that those requesting accounts are legitimate businesses. The cost of this due diligence should be passed on to those requesting access.
3. Strong internet security - All internet access should include security measures including encryption and strong password requirements.
4. User certifications - Each user should attest that they will abide by relevant state and federal laws and local rules regarding the use of the records.

If the screening industry would partner with clerks and administrative offices to advance reasonable access to online records, the threat of abuse and misuse of the records will be greatly minimized while still granting quick and efficient access to this imperative information.

This article was originally published in The Background Investigator, a monthly journal for the pre-employment screening industry.