LETTER: 'Compelling interest' Allows Records to be Sealed
This letter concerns the Daily Report's Feb. 3 article, "Public has right to ex-offender info, lawyers say."
My organization, the Georgia Justice Project, is committed to reducing the barrier to opportunities faced by those with criminal records in Georgia and we are pleased with the recent recommendations made by the Criminal Justice Reform Council, specifically the recommendation to prohibit consumer reporting agencies from reporting records sealed under Georgia law.
We have represented thousands of people across the state and often represent clients denied employment and other opportunities based on sealed information reported by these agencies. Preventing the reporting of sealed records and creating a private cause of action with an adequate remedy for noncompliance will ensure the consistency of information and reduce the barrier to opportunities currently faced by Georgians with sealed records.
Regarding the concerns of some free speech lawyers: the First Amendment has always been used as the primary safeguard for the free flow of information; this includes criminal records. State and federal governments, however, have long recognized the need to seal certain records from public scrutiny in order to alleviate discrimination against those who were not convicted, or have since been rehabilitated. In 1980, in Richmond v. Virginia, 448 U.S. 555, the United States Supreme Court established that records can be sealed without violating the First Amendment if a state can demonstrate that there is a compelling interest and it uses the least restrictive means.
A long-standing compelling interest, and one recognized by the council, is the tremendous financial and social burden on Georgia if people with sealed records cannot secure employment, housing or other things necessary to lead productive lives. Reducing the number of employable and thus taxable citizens increases recidivism and reinforces social distrust, suspicion and hostility toward this population.
The compelling interest to prevent discrimination against people with sealed records is frustrated when, after officially sealed by the state, the records continue to be reported by these agencies and used to deny opportunities. Thus, the Criminal Justice Reform Council appropriately recommends that the state develop its own tool for preventing sealed records from being reported by these agencies. As was mentioned by David E. Hudson of Hull Barrett, the recommendations do not go much further than is already required under the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
Currently, consumer reporting agencies must correct or delete inaccurate, incomplete or unverifiable information, which includes sealed records, within 30 days. Also, these agencies cannot report arrests after seven years if the charge(s) did not result in conviction. The recommendation of the Council to require the agencies correct any report that is inaccurate or does not appropriately restrict sealed information is therefore consistent with federal law.
Approximately 20 states have some version of a fair credit reporting law, some of which either mirror the federal law or provide additional limitations on the reporting of certain records. Examples of additional limitations include requiring the agencies maintain strict procedures to ensure the information is up to date before providing a negative record to employers and preventing the reporting of convictions after a period of time.
To encourage compliance with the reporting requirements, the council recommends that when sealed records are reported, the subject of the record have a private cause of action with treble damages against the agency. This is also consistent with the federal law that provides a cause of action against these agencies for both willful and negligent violations. While the federal law does not specifically call for treble damages, if the violation is willful then punitive damages can be granted at the judge's discretion.
Many states create a cause of action against such agencies for violations and either increase or give greater specificity to the penalties. For example, some states determine liability based on the number of violations and others based on the number of days in noncompliance. To date, both Colorado and Maine provide for treble damages against agencies that willfully violate any of the reporting provisions.