Criminal Record Access after An Act Relative to Criminal Justice Reform

Where criminal records are more readily available via the internet and third-party background checkers, the potential for long lasting collateral consequences is increased. The recently enacted Criminal Justice Reform law seeks to reduce the negative impact of criminal records on a person’s ability to reintegrate into society, particularly in the age of rapid informational access.

Police Records

A criminal record often begins after a police officer responds to an incident and determines that there is probable cause sufficient to make an arrest. Once an individual has been taken into police custody and processed, a criminal record has been created, saved, and shared. The police department creates a fingerprint-based record which is transmitted to the FBI’s Criminal Justice Information Services Division. If the arrest leads to criminal prosecution, the person’s booking information is also sent to a court with jurisdiction. Not all criminal complaints stem from an arrest and not all arrests result in criminal prosecution.

Under the Public Records law, each police department is required to maintain a daily arrest log detailing “valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested.” When an individual is arrested, the logged information is available to the public unless an exemption provides otherwise.

In 2016, the Legislature required that a working group be formed to examine the interaction of Exemption (f) of the Public Records law and the meaning of information “recorded as the result of the initiation of criminal proceedings or any consequent proceedings” within the definition of criminal offender record information. The group was tasked with drafting legislation to address the public’s interest in releasing internal police records but was unable to reach consensus due to pending litigation.

The new criminal justice reform law does not modify the availability of internal police records. However, the new law does resolve loopholes within publicly available police logs by removing entries concerning juvenile arrests and allowing for expungement (see below).

FBI Records

During the booking process, the arresting police department transmits fingerprint-based information to the FBI for inclusion in the national crime database. The Interstate Identification Index (III) is a national criminal record index maintained by the FBI at the National Crime Information Center. This information is used for background checks for licensing, employment, citizenship, adoption, and firearm purchases in addition to investigative purposes. Information transmitted to the FBI’s III system must be fingerprint supported or otherwise risk rejection. In order to ensure that national checks do not return inaccurate or incomplete criminal history information, state agencies must submit case dispositions.

In 2015, the FBI’s Criminal Justice Information Services Division published a Best Practices Guide to address issues related to the completeness, accuracy, and availability of dispositions. It provided the following recommendations:

  • Utilize a unique identifier for each individual, incident, or event to facilitate the disposition submission process across systems
  • Implement self-auditing methods for stakeholders to identify open arrest cycles and reconcile missing disposition information
  • Enact legislation requiring arresting agencies, prosecutors, and courts to submit dispositions to the national database
  • Maintain adequate funding to assist in improved disposition reporting

Under the new law:

  • An offense based tracking number (OBTN) must be created for each set of fingerprints taken at arrest and recorded in court files
  • Disposition information must be transmitted to the FBI for any juvenile or adult criminal where an OBTN has been transmitted
  • Case disposition information, including any order to seal or expunge a record, must be transmitted to the FBI for parallel action at the federal level

Public Court Records

The criminal court process commences after a defendant has be arrested or summonsed to court.

According to the Massachusetts Trial Court’s Uniform Rules on Public Access to Court Records, the public has a common law right of access to certain court records. Most records are presumed to be available to the public unless a statute, court rule, case law, or court order requires that they be withheld from the public. This right of public access it often referred to as “the general principle publicity” which is enhanced by a qualified First Amendment right of access in criminal proceedings.

The new law does not diminish the public’s ability to access available court records or the media’s right to publish information relating to criminal proceedings.

CORI

When a person applies for a job, looks for an apartment, or adopts a child, having a CORI check performed is a regular step in the process.

Section 167 of chapter 6 of the General Laws defines criminal offender record information (CORI) as

“records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release.”

The CORI system is the public facing image of the records and data managed within the court’s internal Court Activity Record Information system (CARI). On a daily basis, the CORI database is updated by information transferred from the CARI database to the Department of Criminal Justice Information Services (DCJIS) for inclusion. Unlike CORI, the CARI system is unavailable to the public and can only be viewed by the opposing party under strict guidelines.

Under Section 172 of chapter 6 of the General Laws, there are three primary levels of CORI access (Open, Standard, and Required). The Required category can be further broken down into four additional levels (Required 1, Required 2, Required 3, and Required 4).

The following chart outlines the various levels of CORI access and dissemination:

Open Cases Recent Convictions Older Convictions Non- Convictions Juvenile Sealed
Open

(General Public)

X [Only very recent]
Standard

(Employers/Housing)

X X
Required 1

(Banks, Hospitals, etc.)

X X X
Required 2

(Elder Care, Assisted Living)

X X X X
Required 3

(Camp Counselors)

X X X X X
Required 4

(Early Education, DCF, Law Enforcement)

X X X X X X

 

Sealing/Expungement

Sections 100A, 100B, and 100C of Chapter 276 of the General Laws authorize the sealing of criminal records, for both convictions and nonconvictions. If an offense was a felony when committed but is later re-classified as a misdemeanor, it will be treated as a misdemeanor when determining sealing eligibility. If the offense is no longer a crime, the defendant’s record immediately becomes eligible for sealing.

There is an important distinction between sealing and expungement. When records are sealed, they continue to exist but are no longer available to the public. An applicant for employment can respond “no record” to inquiries about sealed records but the sealed information remains available to certain government agencies. If a record is expunged, all traces (i.e. complaints, fingerprints, police reports, etc.) are destroyed and there is no indication that information was removed.

Prior to An Act relative to criminal justice reform‘s passage, expungement was generally not permitted where sealing was available and only allowed under rare circumstances such as where a person’s identity was wrongfully assumed by another or the court charged the wrong person with a crime based on the false identity.

The Criminal Justice Reform law builds on the CORI reforms made in 2010 (Cite) by reducing the wait period to seal convictions and permits convictions for resisting arrest to be sealed as well. The law also creates an expungement process for young adults with eligible juvenile or criminal records and cases where there was fraud upon the court or the offense is no longer a crime.

Lastly, the new law expands the ability for applicants with sealed records to answer “no record” on housing applications and creates an appeal process for applicants who have been denied a professional license due to a sealed record of a conviction.

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Will Brownsberger
State Senator
2d Suffolk and Middlesex District