Appeals Judges Back Release of Arrest Records

A federal appeals court ruled Thursday that state law enforcement agencies are obligated to release individuals’ arrest records to businesses that use them for pre-employment background checks and other commercial purposes.

Attorneys for the Los Angeles Police Department, which opposes the release of such records, said they fear the court’s decision could hurt job hunters, especially those who have been arrested but never convicted of a crime.

The case involved a 2-year-old state law that denied private publishing companies access to arrest records. These companies sell the information to background checkers, attorneys, insurance companies and other businesses.

The case was filed by attorneys for United Reporting Publishing Corp., one of four Southland companies that profit from compiling and selling the records--ranging from drunk-driving to felony arrests. Nearly half of all large American corporations check whether job applicants have criminal records.

A federal judge in San Diego struck down the state law in 1996, prompting an appeal by the LAPD and the California Highway Patrol, whose records were also sought by United Reporting.

Attorneys for the law enforcement agencies argued in court papers that releasing arrest records to United Reporting and other private companies would create “unreliable criminal history information [banks] which could have the effect of destroying the employment potential of the innocent, the reformed, the pardoned and the young.”

It would also invade the privacy of crime victims and individuals who have been arrested because attorneys and others scrutinize arrest records to solicit business, the law enforcement lawyers contended.

But a three-judge panel of the U.S. 9th Circuit Court of Appeals rejected both arguments.

Judges said the law violated the 1st Amendment rights of the private publishing companies because it made the same arrest records available to journalists, private investigators and others.

“Having one’s name, crime, and address printed in the local paper is a far greater affront to privacy than receiving a letter from an attorney, substance-abuse counselor, or driving school eager to help one overcome his present difficulties [for a fee naturally],” wrote Judge Diarmuid F. O’Scannlain for the unanimous panel.

Alan F. Westin, a Columbia University political science professor and publisher of a newsletter called Privacy & American Business, said courts are likely to see more similar cases as companies known as “look-up” services take advantage of computer technology to gather and sell public records.

The “look-up” business has proliferated in the last few years as employers, prompted by concerns from workplace violence to embezzlement, dig ever deeper into the personal histories of job applicants.

In a recent survey of 500 large companies, the American Management Assn. found that 42% check whether job candidates have criminal convictions.

Westin said studies have shown that 10% of arrest records, similar to the type mined by companies like United Reporting, are erroneous.

“With these records, there has to be some safeguards,” Westin said. “People should be allowed to challenge them. An arrest doesn’t always mean that someone has done something unlawful.”

Guylyn R. Cummins, a San Diego attorney who represented United Reporting, said the 9th Circuit Court “is telling the government that you cannot pick and choose who receives information. Either everyone gets it or none at all.”

But Assistant City Atty. Byron R. Boeckman, who argued the case for the LAPD, said he felt the court’s ruling “is not good public policy.”

“We don’t arrest people so we could sell their names to a business,” Boeckman said.

He said the city attorney’s office will review the court’s ruling before deciding whether to ask the U.S. Supreme Court to review the appeals court’s ruling.