California Criminal Public Record Regulations, All of Us or None of Us v. Hamrick
- California
- In Effect: January 1, 2022
TL;DR:
All of Us or None of Us v. Hamrick resulted in the redaction of date of birth and driver’s license numbers to match public criminal records for employment and tenant screening purposes.
What it is:
All of Us or None of Us v. Hamrick Ruling Application
On May 26, 2021, the California Court of Appeal ruled in All of Us or None of Us v. Hamrick that an individual’s date of birth (DOB) and driver’s license number cannot be used to identify criminal public records. While this case was decided by the Court of Appeals, 4th A.D. (Riverside County), many Superior courts across California applied this ruling to their own records process. This effectively barred consumer reporting agencies, data providers, and criminal background researchers from using the date of birth information and driver’s license numbers to verify consumer identities for tenant and employment screening purposes.
SB 1262
On February 22nd, 2022, Senator Steven Bradford of California (D-Inglewood) introduced SB 1262 in response to backlash from consumer reporting agencies, employers, and the rental housing industry. SB 1262 would have effectively nullified the rulings of All of Us or None of Us v. Hamrick by reinstating both redacted PII on all public documents. This bill was ultimately vetoed by Governor Gavin Newsom in 2022.
What it means:
With SB 1262 vetoed, in most courts in California, an individual’s date of birth and driver’s license number cannot be used as data identifying a criminal defendant in public records. Rule 2.503 (b) requires that the trial courts that maintain an electronic index must provide remote electronic access to “indexes in all cases” to the extent feasible to do so, and specifies what must be excluded from such indexes, including the two primary identifiers specified in the case, date of birth and driver’s license number.
Whom it affects:
California renters searching for a new home, individuals seeking employment, employers hiring prospective candidates, and third-party consumer reporting agencies when conducting background checks on applicants or employees.
- Increases odds of a false positive regarding a mistaken identity hit on a criminal background check due to the individual having the same name, or the multitude of relevant search results with the same name (due largely in part to court databases being updated by the court’s clerks at different times, depending on the court)
- Increases the amount of time it takes to accurately match individuals to criminal court records
- Introduces new responsibilities and increases legal liabilities for consumer reporting agencies (CRAs) pursuant to the Fair Credit Reporting Act as enforced by the Consumer Protection Financial Bureau. CRAs only have remote access to “indexes in all cases”, limiting the amount of information or distinction between the information available
- Consumers such as employees and renters are subjected to longer wait times as a result of the need to verify identities without PII, potentially causing missed housing and employment opportunities, sometimes even multiple concurrently
- End-users such as employers, landlords, and general housing providers relying on the accuracy and punctuality of the ordered information face the dilemma of the higher probability of either losing a prospective tenant or employee while trying to fill a vacancy/position, or, in order to mitigate the time spent trying to fill the role, skipping ahead to approving the applicant while missing critical information regarding their criminal history that could put the property or position at risk with the end-user being liable for any oversight
Consumer Reporting Guidance:
On November 4, 2021, the Consumer Financial Protection Bureau issued an advisory opinion on Name-Only Matching. In this, they stated that:
“’name-only matching,’ [when identity and record matching is only done with first and last name information,] is particularly likely to lead to inaccuracies in consumer reports.” n.”
While the Bureau was not explicit about which personal identifiers should be used to maximize the report’s accuracy, their opinion made it clear that additional matching identifiers (other than first and last name) must be used by consumer reporting agencies to be compliant with the Fair Credit Reporting Act sec. 607(b).
Resources:
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