There are many different approaches courts are using to release records over the internet.

Some courts provide access to all of their records without registration or any other identification of who is accessing the records (open access). Other courts limit access to those who have established accounts with the court (controlled access). These accounts may or may not require that the user pay a fee for access to the record. In some cases, the court clerk conducts some basic due diligence to verify that the correct identity information was provided by those seeking access to their records.

Most commonly, courts provide only index information, which typically includes case numbers, parties’ names, dates of birth of criminal defendants, offense/case types, relevant dates, and disposition and sentencing information. However, a few courts have opted to provide images of the actual case filings over the internet.

Concerns about identity theft have led many courts to redact some or all of the dates of birth and other identifiers from their internet-based case indices. Others are providing all available information, including social security numbers, the names of minor children in divorce proceedings, and credit card numbers that may be including in case filings.

Some courts are limiting their internet publication of criminal case records to those ending in convictions. Others include cases dismissed upon completion of deferred adjudication or similar programs. Still others release all cases, regardless of disposition. In some cases, individuals’ booking records, even where no case was filed, are released.

Timeliness is also an issue. While some courts’ websites interface directly with their criminal justice information system, providing the same up-to-the-minute records as the courthouse’s public records terminal, many courts batch their records to their websites’ databases daily, weekly, or even monthly. Many of these batched records are maintained by third-party companies, presenting possible Fair Credit Reporting Act issues for screening firms or employers.

Because of changing technology, some courts release only a few years’ records while others release fifteen or more years’ records. Likewise, if the upper and lower courts have different technology, some jurisdictions may only have misdemeanor or felony convictions available online. In some cases, some courts’ records will be shared online while the records of other courts in the same jurisdiction are missing.

The different approaches to sharing this information are driven by technology and budget concerns, public policy issues, and the whims of court officials and legislators. They also present challenges for employers and screening firms seeking to use their records.

Often

The first issue a screening firm should consider when evaluating the use of online court records is its impact on local researcher relationships. Our firm has made the decision to continue seeking reliable courthouse researchers even where indexes are available over the internet for free. Because the indexes rarely tell the whole story, it is often necessary to retrieve copies of case filings to determine exactly what happened in a particular matter. Our ability to do this quickly and without excessive expense has become a true differentiator for our clients.

Often, the information provided in online records is incomplete or cryptic. Some firms use online records and then, when incomplete records are found, send a research request to a local researcher for additional information. This practice works to the disadvantage of local researchers, who spend much more time abstracting records without the financial benefit of the 80% of search requests for which no records are found. We have made the business decision that this is not how our firm will treat those researchers with whom we have reliable relationships. 

When a screening firm has decided to use online court records, a due diligence review of the online system must be conducted to ensure the accuracy and completeness of the records available.

The following questions must be asked:

• Are all levels of case records included in the online index (misdemeanor and felony, lower and upper level civil, etc.)?
• Are all cases, regardless of disposition, included in the online index?
• Is the index real time (does it match the index currently available in the clerk’s office?) or is the data batched out to the internet database? If it is a batch process, how often is the information on the internet updated?
• How many years does the online index cover? Many courts don’t have a full ten years’ history (which is our firm’s minimum search) available online.
• Are user manuals or other instructional resources available? Do they detail how a name search must be conducted or provide a key to the online system’s various codes or screens?

One of the challenges in conducting this due diligence is finding someone who can authoritatively answer these questions. Very few jurisdictions, if any, provide the answers to these questions online. The junior clerk who answers the phone in the clerk’s office is probably not the best source of this information. Often, even the manager in the court’s office is uncertain about the technical details. In some cases, two or three different individuals must be consulted to ensure reliable answers to all of these questions.

Often, in jurisdictions with separate clerks for upper and lower level courts, the answers will be different for each level of court.

The screening firm should maintain records of the name and title of the individual who provided the information about the online system’s characteristics.

Additionally, just as researchers should be tested periodically, the online systems should also be tested. A single programming change or administrative decision can affect the reliability of the online information. This can be done in a variety of ways.

• Ask the court clerk for the case number or party name for a recently filed case, perhaps one that was filed that morning. Search for the online system for that record.
• Conduct a search on “John Smith” and other common names and look for records that exceed your firm’s minimum years searched.
• Conduct searches of previously found records.
• Verify records found for those jurisdictions in state criminal records repositories or third-party criminal records databases. (Be aware, however, that any errors found are often made in the databases rather than the court’s online records.)
• Call the court clerk to verify the information provided in the online record. This is always a good practice because there are simply so many circumstances unique to each jurisdiction, particularly in how they code different dispositions. For example, “No adjudication of guilt” in one jurisdiction indicates that the defendant completed a deferred adjudication probation program while in another jurisdiction, it means the case was dismissed.

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