October 22, 2009
DELETION OF ERASED RECORDS
By: Soncia Coleman, Associate Legislative Analyst
You asked for information on the implementation of Public Act 08-53, including information on why a crime for which a pardon was granted would still be reported by a consumer reporting agency.
Public Act 08-53 generally requires anyone who purchases “criminal matters of public record” from the Judicial Department to obtain updated records and permanently delete any erased records. In May of 2008, in compliance with this law, the Judicial Department began providing appropriate entities with a monthly list of records to be deleted, including an initial list that covered all cases that could be identified to that point. However, records that are not included in the Criminal/Motor Vehicle Computer System (CRMVS) because they (1) are too old or (2) have been purged, were not included. There could also be a slight delay in deleting records due to the fact that updates are provided monthly, rather than contemporaneously with the update to the Judicial Department records.
PUBLIC ACT 08-53
Public Act 07-243 required, starting May 1, 2008, consumer reporting agencies to (1) inform consumers when they are providing reports for employment purposes that include “criminal matters of public record,” such as arrest and conviction records; (2) verify any criminal matters of public record with the Judicial Department to ensure that information
reported is complete and up-to-date; and (3) maintain procedures designed to ensure that any criminal matter of public record reported is complete and up-to-date.
PA 08-53, starting May 1, 2008, eliminated the verification requirement and instead required anyone, including a consumer reporting agency, who purchases “criminal matters of public record” from the Judicial Department, to follow certain procedures. They must at least:
1. purchase from the Judicial Department, on a monthly basis or other schedule set by the Judicial Department, updated records or information available to comply with the act's provisions and
2. update their records to permanently delete any erased records.
There is no specific penalty for violating these provisions. The act requires the Judicial Department to make information concerning any “criminal matter of public record” that has been erased available to anyone who purchases these records. This information can include docket numbers or other information that allows the person to identify and permanently delete the erased records. Under prior law, the Judicial Department was generally prohibited from disclosing these erased records. The erased records relate to criminal charges that were dismissed, nolled, or resulted in a not guilty finding or convictions for which a pardon was granted. The act prohibits anyone from further disclosing the erased records.
The act also altered the definition of “criminal matters of public record” to exclude erased records and pardons.
IMPLEMENTATION OF PA 08-53
The Judicial Department indicates that its extract of criminal records is sent out to entities on the fourth Friday of each month. Starting around May 2008, in addition to the file of new and changed disclosable cases, it began to also send a separate file of cases, including pardons, that the consumer reporting agencies should delete from their files. The Judicial Department provides the name, date of birth, and docket number for the agency to locate the proper record for deletion. The first month it started sending this “delete file,” it contained all cases that the department could identify historically as needing deletion. Since then, it contains the new additions to be deleted for the month. The department
indicates that it expects the consumer reporting agencies to delete appropriate files even if it did not provide the initial record to the reporting agency.
The Judicial Department indicates that it has received approximately three or four complaints relating to this issue over the past year. The complaints generally involved cases that are not contained within the CRMVS because they are either too old and predate the computer, or have been purged. Because the cases are not in the CRMVS, they cannot be included in the update sent to the consumer reporting agency. In such cases, after verifying the pardon information, the department creates a letter informing the consumer reporting agencies of the need to erase the cases. The department sends a copy of the letter to all the consumer reporting agencies that purchase data, as well as the person who was pardoned.