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Bar News - February 17, 2006 The Low-Down on Conducting Background Investigations By: John M. Healy
This kind of investigation, and the data required to complete it, are governed by a plethora of state and federal laws: the Fair Credit Reporting Act, the Gramm-Leach Bliley Act, the Driver Privacy Protection Act, and RSA 260:14, to name but a few. Which laws apply, depends upon the reason for the investigation and the information being sought. I am often asked: “How much does a background check cost?” My answer is: “Please define background.” Another answer could be: “You get what you pay for,” as with any product or service. Backgrounds are done for:
How much the investigation embraces, and thus how much it costs, depends upon the reason for the request and the risk-tolerance of the requestor. A cursory investigation may entail only a look at criminal records. When there is a need to meet the “due diligence” standard, the cost will rise accordingly. A recent court decision in the Midwest pointed out that technology now requires a due diligence investigation to include an Internet component. While a Google search is an excellent tool, there are ways to look into the “hidden” Internet and to go beyond Google. There are specialized “Deep Search” search engines. At Completeplanet.com, you will find over 70,000+ searchable databases and specialty search engines. The NewsGroup site should not be overlooked. After three days of surveillance revealed no activity in a workers comp case, a NH investigator turned to a NewsGroup search and found that the claimant had placed in the top five in a marathon, while claiming a work-related disability during the same period. Most people think of a background check as a criminal check. However, not all improper, unethical or socially unacceptable behavior is found in criminal court records. Many interesting things appear in civil court filings. In NH, as in most states, we have a multi-tiered system of courts: district, superior, family, probate, and federal. I am shocked at how many of my pre-employment screening clients do not bother to check criminal convictions at the federal level. There is no such thing as a nationwide criminal search, though you will see such advertised on the Internet. These searches comprise a compilation of data from limited repositories where the records are public and much of the data is taken from Dept. of Corrections lists of incarcerated inmates, often augmented with a name search from newspaper archives. This kind of database is very different from a conviction database. Best Way To Check Both Criminal and Civil The most accurate way to check both criminal and civil records is an on-site docket scan. There are firms that provide this service, nationwide, but [the search] covers only the superior courts in a thorough fashion. This gives rise to the question, “Where do I look: in which courts?” I suggest developing an address history from public and publicly available records and checking all courts in places where the subject has lived. Whether to check contiguous jurisdictions is a matter of cost or risk tolerance. There are several states where the records are available to the public at the State Central Repository. Depending on these records can provide a false sense of security, however. I know of one mid-western state where the records are available, statewide, but only 20 percent to 30 percent of the courts report their findings to that state’s repository. In cases where I have had a signed waiver, I have obtained records from the Central Repository at the Dept. of Safety. However, this statewide check is only as accurate and reliable as the courts sending the records. I have seen instances, though quite rare, of a conviction found in the court database (in Concord), not appearing in Concord’s Dept. of Safety database and a conviction showing in the Safety database, but not showing up in the court’s records. Records kept by humans are subject to human error. Driver histories, showing traffic convictions, can only be accessed according to the Driver Privacy Protection Act. This is often the only tool that will uncover an alcohol abuse problem. Access in New Hampshire is further restricted by the Administrative Procedures, SAF-C 5600. “SAF-C 5605.02 Pre-Employment or Employment Screening. For the purposes of RSA 260:14, V, motor vehicle records shall not be disclosed for the purpose of pre-employment or employment screening unless the screening of employees or prospective employees is being conducted for individuals who will be operating motor vehicles as a condition of employment.” Liens, judgments, and bankruptcies not only provide a source of financial data but also lead to other sources of information, such as people who have interacted with the subject of the investigation. Also of interest and value is a search of U.S Tax Court records. While not criminal in nature, they may help to paint a more complete picture. Sex offender registries should be a part of any investigation. Many federal agencies keep records of adverse actions that do not lead to criminal prosecution. These records can be an invaluable source of information when used as part of a background investigation. Attorneys who become involved with our educational system need to be aware of RSA 189:13. On it’s face, it mandates background investigations. A closer look reveals that things may not be that simple: A person convicted of a violation of “RSA 630:1; 630:1-a; 630:1-b; 630:2;(homicide) 632-A:2; 632-A:3; 632-A:4;(sexual assault) 633:1;(kidnapping) 639:2;(incest) 639:3; 645:1, I(b), II, or III; 645:2;(public indecency) 649-A:3; 649-B:3; or 649-B:4;(computer porn) or any violation or any attempted violation of RSA 650:2 where the act involves a child in material deemed obscene” shall not be hired by a school administrative unit. “If the criminal history records information indicates that the applicant has been convicted of a felony or of a crime listed in paragraph V, the school administrative unit, school district, or charter school shall review the information for a hiring decision, and the division of state police shall notify the department of education of any such convictions” (189:13-a). The Criminal Code still contains many serious misdemeanor offenses like drugs, assault, theft, etc. that may be on the criminal record. But they are not a factor in this law, which states: “Under no circumstances shall the criminal records be released to the school administrative unit.” The SAU apparently gets only a statement as to conviction of a felony or the list of specified crimes. Finding Qualified Investigators Where do you turn for more complete information? RSA 106-f: 4 states that anyone who engages in “business of collecting for a fee, hire or reward information on the identity, conduct, movements, whereabouts, affiliations, transactions, reputation or character of any person, or otherwise doing investigative work for a private rather than a public interest” must be licensed by the Dept of Safety as a Private Detective. The law is clear: it is the activity that determines whether someone is covered by the statute, not their background or self-described title. Unlicensed entities providing this service are not uncommon. A listing of investigators is available at the Web site of the New Hampshire League of Investigators, Inc (www.nhli.net). The NHLI is the only professional association of licensed investigators in the state. Its members are held to a standard higher than RSA 106-f in that they agree, in writing, to abide by a Code of Professional Ethics, which may be found on their Web site. John M Healy has been a licensed professional investigator since retiring from the State Police as a Lieutenant. He is President of The New Hampshire League of Investigators, Inc and an adjunct faculty members for the NH and VT police academies. He operates Litigation Intelligence Services, LLC. www.litigationintelligence.com.
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