Background Checks

If you are not already familiar with expungements in Indiana, it may be time to brush up on the terminology as this variation in criminal reporting may become problematic for Credit Reporting Agencies.

For clarification, there are actually three separate terms in Indiana:  expungement, restricted disclosure, and restricted access.

In Indiana, expungement is appropriate whenever a person is arrested and the charges are dropped because of mistaken identity, because no offense was in fact committed, or because of an absence of probable cause.  In that case, the records are actually to be destroyed.

If a person charged with a crime is not prosecuted, if the charges are dismissed, or if the person is acquitted of all charges or if the person is convicted and the conviction is later vacated on appeal or on petition for post-conviction relief, that person may petition a court to restrict disclosure of those records.

The key difference between these two?  For there to be an actual expungement, you pretty much have to be innocent, which is distinctly different than “not guilty.” To have a mere restriction of the records, you have to beat the case, but it doesn’t necessarily mean that the person is innocent.

Finally, a person who has actually been convicted of a crime may, under certain circumstances and after 8 years, petition a court to order restricted access to criminal records.

States such as Indiana have enacted legislation that allows defendants convicted of certain crimes to petition courts to seal certain convictions. In fact, Indiana specifically provides that, once sealed, these defendants may state that they have not been convicted of those crimes on any document, which presumably includes employment applications. Effective July 1st, 2013, the Attorney General will have the power to seek civil penalties for unlawful disclosure of sealed records, and aggrieved individuals will be able to recover damages and attorney fees.

The practical problem for CRA’s is to ensure that they are not reporting things that they shouldn’t have had access to in the first place.  Nevertheless, mistakes happen, and CRA’s may find themselves in possession of information indicating convictions that have been expunged, sealed, or otherwise taken care.

As more and more defendants take advantage of these opportunities, more and more convictions will be sealed, expunged, or pardoned. The practical impact for Credit Report Agencies is that, in addition to collecting information about convictions, CRA’s must now carefully review court records to ensure that the information that they are reporting not only is accurate as of the date of conviction, but also has not been subsequently sealed, pardoned, or expunged.