It’s little surprise that Florida, which has had one of the most open and accessible public records of all the states, –long available to private data agreggators– has drawn fire for the appearance of expunged criminal records in commercial databases. A background check on a prospective employee, who evidently wasn’t hired (or why would this be a news story?), may have underscored the truism: You can never really withdraw a declaration.
A criminal index records criminal charges. If the case is later expunged, the index and file removed from court public access, the original index with the criminal charges potentially still resides in the commercial databases. If these sources retain the previously reported charge, later deleted from the court docket, can it be noted in an employment background report?
You can check the Tennessee Code: http://tinyurl.com/yt3eyz
And the Sex Offender Law: http://tinyurl.com/23skyx
Are there any records that CANNOT be expunged; i.e. sex offenses? Do not know if it was before age 18 or not.
Is there ANY way to find OUT?
I am in Tennessee.
Having gone down this road persoanlly, it is considered as if it never existed. Of course there are exceptions for law enforement purposes, but that aside, I feel it should not be reported. There are rules concerning this matter and when it can and can’t be used by the subject to get a record sealed and or expunged.
In order that background be compliant with the FCRA, the expungement can not be reported. The report should only have accurate, up to the minute information. The expungement law is designed to allow this information to be omitted from the public record.
How could you not note it in your report, once you found it? Even if you already knew of the expungement, you would seem to have a duty to note both the record and the expungement, and let the client decide on how to use the data. An analogy might be found with the way we report court records – if we find public records of a criminal trial where no conviction was obtained, do we not still report the data found concerning the initial arrest and charges, and the circumstances of the acquittal?