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Posted: August 02, 2021
In All of Us or None – Riverside v. Hamrick, plaintiffs filed an action seeking declaratory and injunctive relief against the Superior Court of California as well as the Riverside Superior Court, alleging that the defendants were improperly maintaining court records in criminal cases. They alleged that these practices invaded their right to privacy and violated California Rules of Court Rule 2.507(c), which specific information which must be included and excluded from court calendars, indexes, and registers of actions (specifically, driver’s license number and date of birth). After an initial judgment in favor of the defendants, the plaintiffs filed an appeal, and the Appellate Judges ruled for the plaintiffs, stating that the court’s practice of allowing the public to search for records by using a defendant’s date of birth or driver’s license number violated state law.
As California does not have a statewide repository, access to criminal records from the county courts is currently the only method available to process criminal records check in the State of California. This ruling could greatly impact Consumer Reporting Agencies and all employers, volunteer organizations, property managers, and communities located in or doing business within the state of California.
In response to this ruling, Riverside as well as some additional California counties stopped processing requests until they decided what to do regarding the court’s opinion. Alameda, Fresno, Kern, Riverside, Santa Clara, Tulare, Ventura and Yuba all initially stopped verifying the date of birth; however, many have since slowly begun to verify the date of birth after their initial refusal, and Riverside County, the target of the suit, begun allowing name searches. The Professional Background Screening Association (PBSA) submitted comments to the California Judicial Council on July 8th asking for a rule change that will give clarity on our ability to continue to perform searches using the DOB.
Furthermore, on July 15th, PBSA along with Consumer Data Industry Association (CDIA) submitted an amicus letter to the California Supreme Court on behalf of their members in response to the case. The letter asserts that the Court of Appeal misread the rule, and argues that:
“The rule prohibits a superior court from displaying date of birth and driver’s license numbers in certain documents, such as calendars. But nothing in the rule’s text bars searches that employ these identifiers as filters.”
In relevant part, the Court of Appeal opined:
“After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number.”
On July 22nd, PBSA filed a supplemental appendix adding thirteen additional signatories to the letter supporting their efforts, moving the total number of signatories to twenty-two. Coincidentally, Plaintiff-Appellants filed an application in the Supreme Court asking for leave to respond to the joint amicus letter, along with their proposed response. It is believed that the Court will likely grant their application, and while the application is in opposition to PBSA’s position, this action may have succeeded in assisting in getting the court’s attention. It is unsure as to whether PBSA will be allowed to reply to their response at this time.
In similar fashion, on July 20th, PBSA was informed that LA County had removed the DOB filter from the online index and replaced it with a year of birth filter. On August 20th, they issued a statement stating that court staff is now prohibited from using the full date of birth when performing a name search. They will be limiting requests to one name per request and will no longer be accepting lists of names either in person or over the phone; however, name and year of birth searches can still be performed at court terminals and requests for up to five case files per day are still permissible.
Currently, Info Cubic has been able to successfully continue processing County Criminal Records in all California Counties, though delays may be experienced due to these changes in court policy. We will be monitoring the situation as it continues to unfold and will communicate and updates made to court procedures that negatively impact our ability to obtain records with our clients as they are encountered.