Information About Reporting Criminal Records From NCRA’s Legal Counsel

As the nation’s most trusted provider of criminal and eviction data solutions for the multifamily housing industry, CIC wants help keep you informed of current industry affairs and developments. As such, the following is insight provided by Larry Henry, the National Consumer Reporting Association’s legal counsel.

Mr. Henry’s practice focuses on advising employers employment law matters, including issues related to the Fair Credit Reporting Act, the law governing background checks. He is nationally known for his expertise in the FCRA and employment law matters. He is admitted to the Oklahoma and Iowa Bar Associations, all Oklahoma federal district courts, Tenth Circuit Court of Appeals and the United States Supreme Court.

Mr. Henry approved the following for distribution:

This question was recently presented to NCRA’s legal counsel and we thought others might find it useful to see the question and answer from Larry Henry. We will add questions like this, with the answers to the newsletter as they come in as a new feature.

Important information about reporting criminal records.

     Recent developments have highlighted the FCRA limits for reporting criminal records. Here is an interesting record recently received by a consumer reporting agency.

Charge date:                       March 29, 2006

Charge:                                 rape, felony

Disposition date:              October 23, 2006

Disposition:                        Guilty plea

4 years maximum security penitentiary

1 year minimum security penitentiary

5 years supervised parole

Fine/Costs:                          $303.50

This is pretty straight forward – conviction – reportable without a time limit under the FCRA, but:

September 10, 2012, motion filed to withdraw guilty plea

December 12, 2012, motion granted and charge dismissed

How would you report this today?

A. Do not report because reporting time has expired.

B. Report as a conviction because he was found guilty and served prison time.

C. Report as a non-conviction.

     Based upon the current position of the FTC and CFPB this record cannot be reported for this convicted and imprisoned rapist. Why is this? These agencies state that the seven year clock for a “non-conviction,” which I the current status of the subject case, begins to run from the date the charge was filed not when it was dismissed. In this case, that is March 26, 2009. The time to report would end on March 29, 2013. Even though four months earlier he was a convicted felon.

     Under prior interpretations, the FTC permitted reporting dismissals for 7 years from the date of the disposition (this would allow reporting until December 12, 2019 for this case). The FCRA was amended in 1998 to allow reporting convictions without time limitations. As a result, there was some rewording of § 605. While it is correct that the words of “form disposition” disappeared from that Section at that time, there was no discussion when § 605 was amended that the change in reporting convictions in any way altered the reporting of non-convictions. The FTC did not change its guidance regarding non-convictions after this amendment. This issue of when the “clock starts” for non-conviction is currently before the 9th Circuit Court of Appeals in the case of Moran v. The Screening Pros, LLC, case no. 12-57246. This example, while unusual, is not unique. Likely without the intent to do so, the FTC and CFPB are pushing for a standard that can hide serious criminal violations. Further, in the past, the expungement or sealing of a record was a rare and usually well-earned event; today expungement has become just nother step in the criminal process with states allowing expungement as a matter of course after whatever “conviction free” period the state requires. The action of this court was similar to an expungement.

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Caryn Bennett

Caryn Bennett is the Director of Compliance with Contemporary Information Corp. In this capacity, Caryn works with landlords, property managers, realtors and business owners to ensure compliance with federal, state and local regulations regarding the multifamily screening industry. Caryn also assists consumers who wish to view, update or clarify information on their own consumer report. Caryn is a football (go Steelers!) and hockey (Pittsburgh Penguins) fan and also enjoys hiking, kayaking with her husband.

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