Many people have been arrested and fingerprinted and photographed. Think about it, anyone can get arrested for almost anything. Perhaps charges were never filed, the case in almost half the records in the system. If charges were never filed, an unsuspecting person may think their problems over. In many instance, the nightmare just begins particularly if that same person is the subject of an FBI fingerprint checks.
Many think FBI criminal history records are the gold standard in finding criminal convictions in a person’s background. On the contrary, these records are filled with incomplete information. What do I mean by incomplete information? These records routinely do not contain dispositions. The police are great at getting fingerprint records upon the arrest. However, what isn’t included in the record is the ultimate disposition. Why is that important? Because an arrest is not necessarily an indication that criminal behavior occurred. And, the EEOC states that using arrests to make hiring decisions is unacceptable in most situations.
The GAO report corroborated a similar report issued by the National Employment and Law Project (NELP) in July 2013. That NELP report stated that almost one half of records in the FBI database are inaccurate. The records were inaccurate in the sense that there is no indication of the disposition of the action taken against the individual. The GAO report tries, in my opinion, to portray an improving situation on the part of states to provide dispositions. However the results are still pretty scary. The chart below reveals that only 20 states have anywhere near reporting greater than 75%. 7 states had no data available on reporting dispositions and 10 states had less than 50% rate of reporting dispositions.
The bottom line is that if you are an organization using FBI criminal records you need to be very careful. You cannot assume that just because an individual has a record in the system they are guilty of a crime. If the record you receive has no disposition, you should consider confirming the existence of a criminal conviction in the applicable local jurisdiction.
Listed below are highlights of the report from the GAO.
What GAO Recommends
GAO recommends, among other things, that the FBI establish plans with time frames for completing the Disposition Task Force’s remaining goals. The Department of Justice concurred with all of GAO’s recommendations. (Cover Letter)
What GAO Found
States have improved the completeness of criminal history records used for FBI checks—more records now contain both the arrest and final disposition (e.g., a conviction)—but there are still gaps. Twenty states reported that more than 75 percent of their arrest records had dispositions in 2012, up from 16 states in 2006. Incomplete records can delay checks and affect applicants seeking employment. (Cover Letter)
In June 2006, the Attorney General reported that the criminal history background check system was a patchwork of state and federal laws that had resulted in inconsistencies in access to FBI criminal record checks across states and industries. (Page 2)
Private, public, and nonprofit employers can use information from criminal history records for non-criminal-justice purposes, such as screening an individual’s suitability for working with children, the elderly, or other vulnerable populations. States primarily create and maintain criminal history records, but the FBI facilitates the interstate sharing of these records for criminal and non-criminal-justice purposes. Specifically, state central record repositories collect criminal history information from law enforcement agencies, courts, and other agencies throughout the state and submit records to the FBI. For example, state repositories collect arrest records from local police departments and disposition records from prosecutors or courts. (Page 6)
The FBI maintains a fingerprint-based criminal history record repository called the Next Generation Identification (NGI) System (previously the Integrated Automated Fingerprint Identification System). The NGI System contains records from all states and territories, as well as from federal and some international criminal justice agencies. The FBI’s Interstate Identification Index provides for the decentralized interstate exchange of criminal history record information for authorized criminal and non- criminal-justice purposes and functions as a part of the NGI System. In general, states conduct FBI criminal history record checks by searching an applicant’s fingerprints against records in the NGI System. (Page 6)
DOJ, states, and others have emphasized the importance of having complete records when conducting FBI checks—records that contain the arrest charge and the disposition of the arrest (e.g., conviction or acquittal)—since incomplete records can lead to delays in completing checks and have adverse impacts on applicants. (Page 9)
States Reported Progress in Providing Complete Records to the FBI, but Incomplete Records That Can Delay Criminal Record Checks and Affect Applicants Still Exist
According to Bureau of Justice Statistics (BJS) surveys of state criminal history information systems, from 2006 through 2012, states reported making progress in providing complete criminal history records to the FBI—records that include the arrest and the final disposition of the arrest.43 For example, BJS surveys show that the number of states that reported providing more than 75 percent of their arrest records with final dispositions increased from 16 states in 2006 to 20 states in 2012.(Page 18)
DOJ Helps States Improve Record Completeness, but States Continue to Face Challenges in Submitting Complete Records to the FBI (Page 22)
Disposition Task Force: The FBI’s Advisory Policy Board formed the Disposition Task Force in 2009 to address issues related to the completeness, accuracy, and availability of criminal record dispositions from courts and prosecutors and develop a national strategy for improving the quality of disposition reporting. According to an FBI official who helps facilitate task force meetings, the task force established an initial set of goals in 2009, but under new leadership in 2012 determined that these goals would not address the greatest disposition-reporting challenge—the lack of national disposition-reporting standards. (Page 24)
According to FBI officials, as of September 2014, the task force had achieved one of its 2012 goals by refining the calculation that the task force would use to estimate the rate in which state and federal arrest records contained dispositions and reaching consensus on the definition of the term “disposition” to calculate the disposition rate. The officials noted that the task force had also taken steps to achieve two other goals by (1) reviewing the results of a National Center for State Courts national survey to identify existing federal and state requirements for collecting and reporting disposition information, and (2) identifying steps to develop and produce a guide on disposition best practices.(Page 24)
The task force, however, did not have a plan with time frames or milestones for either completing the best practices guide or achieving the remaining goals, which could also lead to a national strategy—an original 2009 objective for the task force. Nevertheless, after more than 5 years, the task force has not issued best practices or national standards for collecting and reporting disposition information or developed a national strategy, even though disposition reporting has been a long-standing challenge. (Page 25)
FBI audits of states: The FBI conducts a triennial audit of state criminal justice information systems to determine, among other things, whether (1) the records the state maintains contain all known arrest and disposition information and (2) the submission of criminal record information to the FBI has been “unduly” delayed. Federal regulations provide that states should submit dispositions to the Interstate Identification Index within 120 days after the disposition occurred. To determine whether states are meeting these two requirements, FBI auditors review state-level processes and procedures and assess, among other things, if the state repository has a backlog of dispositions that it has not submitted to the FBI. The FBI found that from 2011 through 2013, 12 of the 44 states that it had audited were noncompliant with one or both of the requirements. (Page 25)
Challenges Faced by State Criminal Justice Agencies
In addition to the lack of national standards that govern the submission of dispositions from state criminal justice agencies and repositories to the FBI, our discussions with officials from our 4 case study states, BJS, SEARCH, and the National Center for State Courts—and our review of reports that these entities published—identified three challenges as most frequently cited as negatively affecting the completeness of state criminal records: (1) prosecutors not reporting final decisions in a case, (2) lack of official arrest records when law enforcement cites and then releases an individual, and (3) case numbers not transferring accurately among local agencies. DOJ’s grant funding and other assistance programs have helped states address these challenges. (Page 26)
Many States Did Not Fully Comply with Federal Requirements to Inform Individuals of Rights to Correct or Complete Their Criminal History Records
FBI audits of the states’ use of criminal history records conducted from 2011 through 2013 show that 44 states went through an audit within these 3 years, and 31 of the 44 states (about 70 percent) had at least one state agency that was out of compliance with federal regulations related to applicant notifications. Specifically, the agency did not provide all of the required notifications to a job or license applicant on the individual’s rights to challenge and correct that person’s criminal history records. According to FBI audit management officials, state agencies did not provide the required notifications primarily because the agencies were not aware that they had to do so. (Page 30)
The FBI is not cooperating
In addition, for more than 3 years, the FBI has received but not used disposition information from OPM to potentially help states enhance the completeness of their criminal history records. (Page 39)
Recommendations for Executive Action
GAO is making the following three recommendations:
- To improve disposition reporting that would help states update and complete criminal history records, we recommend that the Director of the FBI task the FBI Advisory Policy Board to establish a plan with time frames and milestones for achieving its Disposition Task Force’s stated goals.
- To potentially help states enhance the completeness of their criminal history records, we recommend that the Director of the FBI and the Director of the Office of Personnel Management clarify what disposition information OPM will provide to the FBI and formally agree on how OPM will provide it. This would enable the FBI to forward the information to states and allow each state to determine if the information can be used to update their criminal history records.
- To better equip states to meet the regulatory requirement to notify individuals of their rights to challenge and update information in their criminal history records, and to ensure that audit findings are resolved, we recommend that the Director of the FBI—in coordination with the Compact Council—determine why states do not comply with the requirement to notify applicants and use this information to revise its state educational programs accordingly. (Page 40)