I write to focus on another of the Interim Report's topics, Expunction, Non-Disclosure and, in particular, how the State's bulk sale of criminal histories to vendors thwarts the goal of both these remedial laws.
First some background. Expunction allows a person who receives it the right to deny a previous arrest and requires those with notice to destroy records of the arrest and any resulting prosecution. Non-Disclosure is less broad; it applies to most, but not all, charges for which the petitioner successfully completed a deferred adjudication probation. Non-Disclosure bars public dissemination of criminal records, but allows law enforcement and other government agencies access to them.
Now on to the Interm Report. It is to my reading a remarkable document. In discussing the purpose, and benefits to Expunctions and Non-Disclosures, the Interim Report nails it:
Having an arrest or conviction on a person's record can affect that person for life, making it harder to gain admission to a university, find a job or merely be approved for a lease on an apartment. Often times, arrests that do not lead to a conviction or that were disposed of after a certain amount of community service can still show up on a record, hurting their chances of fully participating in society. Expunctions and non-disclosures are meant to help keep an individual's contact with the criminal justice system from following them throughout life. Unfortunately, numerous complications keep many who might be eligible from applying for an expunction or non-disclosure and some argue that these complications have rendered such relief irrelevant.
Practitioners argue that not as many people who could benefit from an expunction or non disclosure are even trying to apply. Research suggests that less than 5 % of those who can take advantage of such relief actually do so. [When] they do participate, a number of roadblocks weaken the usefulness of going through the trouble of applying for an expunction and non-disclosure. The committee identified numerous weaknesses in the state’s expunction and non-disclosure laws.(footnotes omitted).These finding and statistics affirm my anecdotal experience. The last sentence of the first paragraph quoted above is almost identical to something a criminal defense lawyer recently said to me. His point was with the internet and increased dissemination of criminal records, he has started advising clients that Expunction and Non-Disclosure are not necessarily cost beneficial. The Interim Report give reasons why my lawyer friend, if not right, is more right than I would like.
One of the chief problems identified in the Interim Report? The bulk sale of citizen's criminal histories to private entities by the Department of Public Safety (DPS) and local District and County Clerk offices:
The main sources for buying [criminal] records in bulk are the Department of Public Safety, which serves as a repository for criminal records, and local District and County Clerk offices. It’s unclear how much money clerks make from these sales, other than recouping costs associated with satisfying open records requests.
After the records are bought from DPS or another agency, some companies then turn around and sell that information. There is currently no way for the state to track who the records are sold to. This is where the main problem occurs since it’s difficult to find all places that have inaccurate information, especially if a case is expunged or a person is issued an order of non-disclosure. (footnotes omitted).And this logical, but nevertheless disturbing tidbit:
Because the indexes sold can contain millions of files, information released in bulk is typically provided through a File Transfer Protocol, or FTP, which is a standard network used to distribute large amounts of information over the Internet. The Department of Public Safety provides information on a weekly basis to companies that have an agreement with the agency for regular updates. Information not sold in bulk is readily available through local and state government websites, or by walking into a local courthouse.
Some of the entities that buy the data turn around and sell the data to paid subscribers. While state government entities are only allowed to recoup costs for the information, the reselling of such information has become a multi-million dollar industry nationwide. Companies that resell the data say that they are merely making available information that is already available to the public, and that the general public should have easy access to all data the government collects of its citizens. In their view, these companies are providing a public service by providing easy access to public information. But this is where the main issue regarding the data comes into play, since it’s difficult to track where the information ends up. (footnotes omitted)Finally the Interim Report recites how our government sale of this data makes tracking and complete elimination of criminal histories subject to proper, lawful Expunction and Non-Disclosure extremely difficult:
There is currently no way to follow the dissemination trail of data after the first point of sale, which makes it difficult for anyone attempting to correct erroneous information. This is particularly bad for a job applicant accused of lying for not disclosing an expunged offense, even though they have received an order of non-disclosure or order of expunction. The situation has led some attorneys to advise their clients not to even seek relief under the statutes or encourage clients who have received relief to disclose an offense anyway to avoid the risk.
Even though courts and government agencies try to get the message out that an expunction or order of non-disclosure has been issued, they can only inform those who they know have the information. For an agency like DPS, that means only the company that bought the information from them is contacted. Past that, it's unclear whether anyone else gets the message and the information remains in the public domain.I have written here and here about my experience with one website which collects this data, publishes it, then hides behind its nationality to claim it does not have to abide by Texas Expunction or Non-Disclosures laws. Oh, they will take the information down, but for a fee. Their source for the data is in all probability is the Texas Department of Pubic Safety.
The Interim Report says dissemination of this information has become a "multi-million dollar industry". The companies who profit by re-selling these criminal histories are sure to be lobbying against any changes that would curtail their ability to continue to make a profit doing it.
The Interim Report makes specific recommendations both to broaden the availability of Expunctions and Non-Disclosures and to better track criminal records sold once they leave government hands. I wholeheartedly support broadening availability of these two remedial statutes for the reasons stated in the Interim Report. Criminal histories should not be a life time card carried and required to be shown on request. We have not, yet, become the 18th century France of Jean Valjean in Les Miserable. It is the reason we have Expunction and Non-Disclosure laws on our books.
I understand these records are public records when sold in bulk by DPS and/or local District and County Clerks. I subscribe to a such a records data base. I check it regularly to make sure Expunctions and Non-Disclosures I have secured for clients have been taken down. If meaningful Expunction and Non-Disclosure laws are to be kept on the books, however, something legislatively has be done to track and eliminate these records even after they have been sold.
Good work Texas House Committee on Criminal Jurisprudence, for a honest and informative Interim Report. I hope the full legislature acts on these recommendations.