Sealing of criminal records

Recent technology and procedural improvements are making it easier for people who have had criminal court cases in Massachusetts to put their past behind them.  This post outlines changes implemented over the past few years pursuant the criminal justice reform bill of 2018 and offers a tip for people seeking to assure that a prior criminal case will not surface inappropriately in a fingerprint-based background check.

Background on Criminal Records

A series of records are created as a person moves through the experience of an arrest, a criminal court case and perhaps some resulting probation or incarceration.  Under Massachusetts law, most of those records are not readily discoverable during a background check.  However, it is possible for employers and others to inquire about a person’s court cases through the state’s Criminal Offender Record Information (“CORI”) system.  Different requestors have different levels of access to CORI; for more sensitive jobs, employers may even learn about cases that did not result in conviction.

Our major criminal justice reform package in 2018 included several themes of reforms designed to reduce “collateral” consequences of court involvement.  One theme was to increase the privacy of past criminal cases, most significantly to accelerate sealing availability from 10 years to 7 years for felonies and from 5 years to 3 years for misdemeanors.  The privacy theme included many other measures.  For more background, see this complete inventory of the 2018 reforms and this discussion of the collateral consequence reforms.

State vs. Federal Criminal Records

As we were designing the 2018 reforms, we were mystified by repeated reports from advocates that “sealing doesn’t work” — that court cases that were sealed were inappropriately being discovered by employers.  It finally dawned on us that while the Massachusetts sealing process had significantly improved over time, the process continued to leave open the possibility of discovery of criminal records through a federal fingerprint-based background check.

When a person is arrested for a felony and booked in a police station, standard procedure is to take fingerprints and to submit those prints through the State Police State Identification Section (“SIS”) to the Federal Bureau of Investigation (“FBI”).  This procedure is intended to identify possible prior court involvement of the arrestee and to create a federal record of the new arrest.

Pursuant to the criminal justice reform legislation in 2018, certain criminal records are eligible to be sealed or expunged at the FBI upon request by the state. While sealed records remain accessible for national security inquiries, they are generally unavailable to most employers. Sealing requests were not authorized to be transmitted to the FBI prior to the legislative reforms of 2018. 

2018 Reform Impact on Federal Record Sealing

When a criminal record is sealed, the court transmits that information to the Department of Criminal Justice Information Services (“DCJIS”), which subsequently transmits the information to the State Police SIS. The SIS then in turn transmits the sealing information to the FBI.  However, in order for the national system to process a request for sealing, the request must include the offense-based tracking number or “OBTN” that was created when the prints were originally submitted; sending a name is not sufficient.

To support sealing and to generally support the integration of the state’s various criminal justice record systems, a major inter-agency collaboration over recent years has sought to automate the police submission of complaints against defendants to the courts.  More recent complaints where an individual was arrested and fingerprinted will include the OBTN so that the OBTN can travel with the court case in the courts’ systems and can be included in a request for sealing.  The 2018 reforms codified the requirement that the OBTN be included in the complaint.

However, older cases may not have an OBTN.  Additionally, some cases that do not involve an arrest — minor cases and cases brought by direct indictment — may not include an OBTN.  The 2018 reforms require that if a case is started through an arrest, the arrest OBTN be included in the Superior Court file including when those cases are indicted.

The reforms also mandate that the courts transmit all case dispositions, including all sealing and expungement orders, to the SIS and that the State Police in turn transfer all disposition information to the federal authorities. As noted above, the Trial Court transmits this information to DCJIS which transmits it to the SIS. 

Federal Record Sealing in 2025

The procedural mandates in the 2018 reforms have required a significant investment by the trial court and the state police.  They have had to build interfaces among organizational systems and to engage in retroactive manual matching and coding.  

Significant progress has been made.

• The Trial Court reports that OBTN’s are generally included in new adult complaints, which begin with an arrest and that these are passed through to the State Police State Identification Section when cases are disposed of.
• The State Police State Identification Section has the federal interface working so that sealing requests can be passed through to the federal level automatically.

However, challenges remain:

• Many older court cases do not have OBTNs attached to them and so when people seek to seal older records, the order will not go through automatically to the federal level. Some of these may have been serious older cases involving an arrest and a resulting fingerprint record or involved an arrest where fingerprints were not taken.  Some may have been less serious cases that were originated without an arrest and prints were never taken. 
• SIS, whose primary duties involve fingerprint-associated work has limited staff assigned to sealing records, so the Section does not have the capacity to research all cases that do not go through automatically.  
• As of 2024, a limited number of sealing requests had not been passed on to the SIS by the courts. Essentially, the court’s software was set up to pass on cases with certain sealing codes, but new codes were introduced to distinguish the types of sealing, which the software was not updated to handle.  As a result, the courts are manually clearing a backlog of cases, which is a process that may take several months to complete.

Tip

This post is relevant primarily for those applying to jobs or seeking licenses that require a fingerprint-based background check.   For those in that category who seek to avoid disclosure of a prior criminal case, they would do well to assure that their state and federal fingerprint record has been sealed.

1. If they have not already done so, they should seal their state record and confirm that it has been sealed by requesting a copy of their record.
2. They should check their federal record directly with the FBI.  The FBI provides a process to do this.
3. If the FBI record does not appear to be sealed, they should contact the State Police Identification Section for assistance.

In the case that a record remains inappropriately discoverable at the federal level, people can directly contact the State Police State Identification Section for assistance in perfecting the sealing: The SIS phone number is (508) 358-3170; their email is sis_dispos@pol.state.ma.us.