Criminal History Records:

Additional Actions Could Enhance the Completeness of Records Used For Employment-Related Background Checks

GAO-15-162: Published: Feb 12, 2015. Publicly Released: Mar 16, 2015.

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What GAO Found

Most states that responded to GAO's nationwide survey reported conducting Federal Bureau of Investigation (FBI) criminal history record checks for individuals working with vulnerable populations—such as children and the elderly—and other employment sectors that GAO reviewed (see fig. below). States that did not conduct FBI record checks said this was because the state lacked a designated agency to review check results, among other challenges. In 2006, the Attorney General proposed that nongovernmental entities also serve in this role but noted that this would require considerations about securing data and protecting personal information.

States Conducting FBI Criminal Record Checks for Selected Employment Sectors

States Conducting FBI Criminal Record Checks for Selected Employment Sectors

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. The Department of Justice has helped states improve the completeness of records through grant funding and other resources, but challenges remain. For example, the FBI's Advisory Policy Board—which includes representatives from federal, state, and local criminal justice agencies—created a Disposition Task Force in 2009 to address issues regarding disposition reporting, among other things. The task force has taken actions to better measure the completeness of state records and identify state requirements for reporting disposition information. However, the task force does not have plans with time frames for completing remaining goals, such as examining and recommending improvements in national standards for collecting and reporting disposition information.

According to stakeholders GAO contacted, the use of private companies to conduct criminal history record checks appears to be increasing because of employer demand and can provide benefits, such as faster response times. Federal agencies regulate these companies and have settled complaints, such as in cases where the wrong records were sent to employers. Private companies can face challenges in obtaining complete and accurate records, in part because not all states make their criminal record information accessible for private companies to search.

Why GAO Did This Study

Authorized employers use information from FBI criminal history record checks to assess a person's suitability for employment or to obtain a license. States create criminal records and the FBI facilitates access to these records by other states for nationwide checks. GAO was asked to assess efforts to address concerns about incomplete records, among other things.

This report addresses to what extent (1) states conduct FBI record checks for selected employment sectors and face any challenges; (2) states have improved the completeness of records, and remaining challenges that federal agencies can help mitigate; and (3) private companies conduct criminal record checks, the benefits those checks provide to employers, and any related challenges.

GAO analyzed laws and regulations used to conduct criminal record checks and assessed the completeness of records; conducted a nationwide survey, which generated responses from 47 states and the District of Columbia; and interviewed officials that manage checks from the FBI and 4 states (California, Florida, Idaho, and Washington). GAO selected states based on geographic location and other factors.

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.

For more information, contact David C. Maurer at (202) 512-9627 or maurerd@gao.gov.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In 2015, we reported that the FBI's Advisory Policy Board's (APB) Disposition Task Force did not have a plan with time frames and milestones for completing a best practices guide or for achieving three of its five goals. As a result, we recommended that the APB establish a plan with time frames and milestones for achieving the task force's stated goals. In September 2017, the Disposition Task Force met to discuss implementing its remaining goals, including (1) examining and recommending improvements to the national standard for collecting and reporting disposition information and (2) promoting the adoption of national standards for sharing dispositions by state judicial systems. At the September meeting, the Disposition Task Force discussed national standards for collecting and reporting dispositions and how to promote the adoption of standards. The task force decided to promote best practices in the "Preliminary Finding of the Disposition Task Force: Best Practices Guide" as national standards because these practices were proved to have a positive impact on disposition reporting. The task force requested that FBI create documents to promote the implementation of the best practices and requested the first product, focused on agency self-auditing to identify areas of missing dispositions, be delivered in January 2018. By December 2018, the Disposition Task Force plans to create products on the implementation of additional best practices, including providing feedback to contributing agencies regarding dispositions and engaging in outreach with stakeholders. These actions should help the Task Force achieve its goals. Therefore, we consider this recommendation closed as implemented.

    Recommendation: To improve disposition reporting that would help states update and complete criminal history records, the Director of the FBI should task the FBI Advisory Policy Board to establish a plan with time frames and milestones for achieving its Disposition Task Force's stated goals.

    Agency Affected: Department of Justice: Federal Bureau of Investigation

  2. Status: Closed - Implemented

    Comments: In 2015, we reported that Federal Bureau of Investigation (FBI) audits conducted from 2011 through 2013 showed that 31 of the 44 states (about 70 percent) audited had at least one state agency that was out of compliance with federal regulations related to applicant notifications. Specifically, the state 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. As a result, we recommended that the FBI determine why states do not comply with the requirement to notify applicants and use this information to help revise the state's educational programs. In May 2015, the FBI's Criminal Justice Information Services (CJIS) Division implemented audit and sanctions procedures to formally include the reasons why audit participants are not compliant with requirements for applicant notification. In July 2017, the FBI provided examples of how it has shared this information with states. Specifically, The CJIS Division's Audit Unit presents an annual audit summary topic paper to the Compact Council's Planning and Outreach Committee. (The Compact Council is the primary state and federal body for setting policy around the interstate sharing of criminal history records for non-criminal-justice purposes.) Each summary includes a discussion of common issues, such as why audit participants are not meeting requirements. The audit unit also educates federal, state, tribal, and local agencies during audits and through participation in a number of state-sponsored training conferences. During these conferences, auditors discuss requirements for applicant notification and provide educational documents published by the Compact Council, to include the Guiding Principles for Noncriminal Justice Applicant's Privacy Rights, which was updated in May 2017. In addition, and when appropriate, agencies are also educated about the requirements during informal communications. These actions satisfy the intent of our recommendation.

    Recommendation: 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, the Director of the FBI--in coordination with the Compact Council-- should determine why states do not comply with the requirement to notify applicants and use this information to revise its state educational programs accordingly.

    Agency Affected: Department of Justice: Federal Bureau of Investigation

  3. Status: Closed - Implemented

    Comments: In February 2015, we reported on the Department of Justice's (DOJ) efforts to help states improve the completeness of criminal history records used for employment and licensing background checks (GAO-15-162). We found that DOJ had several initiatives underway to help states improve the completeness of criminal history records, such as grant programs, best practice sharing, criminal records task forces, and periodic record audits. However, we found that the Federal Bureau of Investigation (FBI) and Office of Personnel Management (OPM) had not determined how the FBI could use background information obtained during OPM security clearance investigations to help states update criminal history records. Specifically, in June 2010, the FBI approved the practice of having the FBI supply states with source documents that OPM personnel obtain during the approximately 2.5 million security clearance and employment investigations OPM conducts each year. However, the agencies did not enter into a formal written agreement for this information-sharing arrangement, and the FBI was unable to use any of the information provided by OPM. OPM and FBI officials said that there were misunderstandings regarding what information OPM would be transmitting to the FBI and how it would do so. Consequently, we recommended that the FBI and OPM clarify what 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 could be used to update their criminal history records. In March 2015, OPM and FBI officials signed a letter formally concurring on the methodology to exchange criminal history information. Specifically, OPM agreed to provide the FBI with specific and appropriate disposition-related fields in an extensible markup language (XML)-tagged report data format, and would provide the data electronically through OPM's secure portal. OPM plans to begin transferring the data by October 1, 2015, and had provided the FBI with access to the secure portal as of March 2015. Given the development of a formal agreement and agreed-upon data sharing methodology, this recommendation is closed as implemented.

    Recommendation: To potentially help states enhance the completeness of their criminal history records, the Director of the FBI and the Director of the Office of Personnel Management should clarify what disposition information the Office of Personnel Management (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.

    Agency Affected: Department of Justice: Federal Bureau of Investigation

  4. Status: Closed - Implemented

    Comments: In February 2015, we reported on the Department of Justice's (DOJ) efforts to help states improve the completeness of criminal history records used for employment and licensing background checks (GAO-15-162). We found that DOJ had several initiatives underway to help states improve the completeness of their criminal history records, such as grant programs, best practice sharing, criminal records task forces, and periodic record audits. However, we found that the Federal Bureau of Investigation (FBI) and Office of Personnel Management (OPM) had not determined how the FBI could use criminal history information obtained during OPM security clearance and employment investigations to help states update their criminal history records. Specifically, in June 2010, the FBI approved the practice of having the FBI supply states with source documents that OPM personnel obtain during the approximately 2.5 million security clearance and employment investigations that OPM conducts each year. However, the agencies did not enter into a formal written agreement for this information-sharing arrangement, and the FBI was unable to use any of the information provided by OPM. FBI and OPM officials said that there were misunderstandings regarding what information OPM would transmit to the FBI and how it would do so. We recommended that the FBI and OPM clarify what 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 states to determine if the information could be used to update their criminal history records. In March 2015, OPM and FBI officials signed a letter formally concurring on the methodology to exchange criminal history information. Specifically, OPM agreed to provide the FBI with specific and appropriate disposition-related information in an extensible markup language (XML)-tagged report data format, and would provide the data electronically through OPM's secure portal. OPM plans to begin transferring the data to the FBI by October 1, 2015, and provided the FBI with access to the secure portal in March 2015. Given the development of a formal agreement and agreed-upon data sharing methodology, this recommendation is closed as implemented.

    Recommendation: To potentially help states enhance the completeness of their criminal history records, the Director of the FBI and the Director of the Office of Personnel Management should clarify what disposition information the Office of Personnel Management (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.

    Agency Affected: Office of Personnel Management

 

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