How likely is it that an employer (such as a LARGE investment bank)
can access my expunged records through the NCIC database?  I know that
once a record as been expunged (at least in the state of Arkansas), it
is no longer accessible to the public.  However, the records of the
'crime' still remain in certain databases, such as the NCIC, and I
want to know how likely it is that employers can access this, and to
what extent will they see the details of the entry (even under
expungement).  Thank you!

Hello, Mr. Gutfreund.  In general, private employers cannot access the
NCIC database.  Use of the database is generally limited to law
enforcement agencies.
However, you specifically mention a "LARGE investment bank," and such
institutions may be entitled to request access, as I will explain
below.

At the outset, this article is useful as a general overview of the NCIC:
http://permanent.access.gpo.gov/lps3213/ncicinv.htm

This is another overview, in more detail.
http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm

Access to Federal criminal records is governed by Title 28, Code of
Federal Regulations (CFR), Section 20.33:
http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=28&PART=20&SECTION=33&SUBPART=&TYPE=TEXT

The relevant language is paragraph (3):
"For use in connection with licensing or employment, pursuant to 
Public Law 92-544, 86 Stat. 1115, or other federal legislation, and for 
other uses for which dissemination is authorized by federal law. Refer 
to Sec. 50.12 of this chapter for dissemination guidelines relating to 
requests processed under this paragraph."

So for Section 50.12, we go to:
http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=28&PART=50&SECTION=12&SUBPART=&TYPE=TEXT
which states:
"The Federal Bureau of Investigation, hereinafter referred to as 
the FBI, is authorized to expend funds for the exchange of 
identification records with officials of federally chartered or insured 
banking institutions to promote or maintain the security of those 
institutions and, if authorized by state statute and approved by the 
Director of the FBI, acting on behalf of the Attorney General, with 
officials of state and local governments for purposes of employment and 
licensing, pursuant to section 201 of Public Law 92-544, 86 Stat. 1115. 
Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42 U.S.C. 
2169, respectively, such records can be exchanged with certain segments 
of the securities industry, with registered futures associations, and 
with nuclear power plants. The records also may be exchanged in other 
instances as authorized by federal law."

So the Code of Federal Regulations specifically permits the FBI to
provide NCIC information to "officials of federally chartered or
insured banking institutions. to promote or maintain the security of
those institutions."  That includes pre-employment checks. See:
http://www.ojp.usdoj.gov/bjs/jrip.htm
?For criminal history searches, this includes criminal justice
employment, employment by Federally chartered or insured banking
institutions or securities firms, and use by State and local
governments for purposes of employment and licensing pursuant to a
State statute approved by the U.S. Attorney General.?

Since it appears that a "LARGE investment bank" would indeed be
authorized to request NCIC information, let's discuss what will show
up in such a check.  According to the FBI, "Data contained in NCIC is
provided by the FBI, federal, state, local and foreign criminal
justice agencies, and authorized courts."
http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm

The difficulty with an "expunged" conviction is that the NCIC does not
automatically update itself.  The FBI relies on each law enforcement
agency and court clerk to get their records right and forward them
appropriately.  So an expunged conviction may very well continue to
show up on NCIC.

Here is a concise description of the problem:
?The problem is that fingerprint repositories such as the FBI's
National Crime Information Center (NCIC) are not designed to capture
dispositions. Plus, repositories are at the mercy of state court
systems to provide that information, and state systems, in turn, are
at the mercy of local courts. Thus, even with a fingerprint search, a
court search is often still required to obtain dispositions. Plus,
only a handful of states funnel records to the NCIC, and worse yet,
studies have shown that close to half of certain types of criminal
records are not even reflected in a state's own composite index.?
http://www.securitymanagement.com/library/001602.html

There have definitely been instances of expunged convictions showing up on NCIC.
For what it's worth, this is an interesting discussion in a discussion
forum.  A person claiming to have been a "deputy" says that both the
arrest, the conviction, and the expungement will all show up on NCIC:
http://forum.freeadvice.com/archive/index.php/t-204363.html

Another discussion forum, this time with attorneys, reflects the same:
http://counsel.net/chatboards/crimlaw/topic1965/8.20.05.00.26.57.html

Here is a court case about an expunged criminal record that showed up on NCIC:
http://72.14.209.104/search?q=cache:Fp1kuZuaYZYJ:www.ca8.uscourts.gov/opndir/96/07/953418P.pdf+%2Bexpunged+%2Brecord+%2BNCIC&hl=en&gl=us&ct=clnk&cd=2

So in your case, what will show up depends entirely on whether your
local agencies have their act together.

Incidenally, here is a great article on employer records checks generally:
http://www.llrx.com/features/criminal2.htm

I hope this has been helpful.  Please don't hesitate to ask for
clarification before rating the answer if there's anything further you
need.

---

Request for Answer Clarification by mrgutfreund-ga on 19 Jun 2006 09:21 PDT

"Plus, only a handful of states funnel records to the NCIC, and worse
yet, studies have shown that close to half of certain types of
criminal records are not even reflected in a state's own composite
index."

What exactly does this mean?  Is it saying that the NCIC may not
reflect just the disposition, OR the arrest altogether??

If this depends on how well the state's forward information to the
NCIC, is there anything I can do myself to ensure that my case has
been disposed of and forwarded properly?

Also, you said that banks can request permission to see records from
the NCIC.  Is this part of their standard pre-screening practice and
every employee's NCIC record shows up, or must the banks make a
special request only when they have a special reason to see a person's
history?

---

Clarification of Answer by hagan-ga on 19 Jun 2006 11:36 PDT

Hello again!  Let me address your clarification requests one at a time:

"'Plus, only a handful of states funnel records to the NCIC, and worse
yet, studies have shown that close to half of certain types of
criminal records are not even reflected in a state's own composite
index.'

"What exactly does this mean?  Is it saying that the NCIC may not
reflect just the disposition, OR the arrest altogether??"

It is saying that the NCIC is nowhere near the "comprehensive criminal
records database" that most people think it is.  That conclusion is
reflected throughout the research I performed, and is repeated in the
articles I provided.  The NCIC depends on state and local agencies to
provide information.

Here is a brief description of the system:
"The FBI maintains the host computer while providing a
telecommunication network to the CJIS Systems Agency (CSA) in each of
the 50 states, the District of Columbia, Puerto Rico, the U.S. Virgin
Islands, Guam, and Canada, as well as federal criminal justice
agencies. A CSA is a criminal justice agency that has overall
responsibility for the administration and usage of the NCIC within a
district, state, territory, or federal agency. Those agencies
generally operate their own computer systems, providing NCIC access to
virtually all local criminal justice agencies. Through this
cooperative network, law enforcement personnel have direct on-line
access to enter or search millions of records for persons and
property."

So if the local CSA computer system contains inaccurate or incomplete
information, so will the NCIC.

In Arkansas, for example, the Arkansas Crime Information Center is the
state agency responsible for interfacing with the NCIC.
http://www.acic.org/about/index.htm 

Next question:  What can you do to make sure your expungement is
reflected properly?
You have the absolute right to see your own records. The process for
doing so is set forth in
http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm (scroll down to
"Record Access Procedures."
If part of the record is inaccurate, and must be corrected,the site
above provides the means for correcting it:
"The Attorney General has exempted this system from the contest
procedures of the Privacy Act. Under this alternative procedure
described above under "Record Access Procedures," the subject of the
requested record shall request the appropriate arresting agency,
court, or correctional agency to initiate action necessary to correct
any stated inaccuracy in subject's record or provide the information
needed to make the record complete."

What this means is that you can't challenge the record directly.  You
have to get the court that expunged your conviction to provide the
expungement information to the NCIC.

Finally, is the NCIC check a standard background check for banks?  It
does not appear to be, and is not required by the FDIC.

Banks are legally prohibited from employing people who have been
convicted of certain crimes.  12 U.S.C. Section 1829, available on the
Web at http://www.washingtonwatchdog.org/documents/usc/ttl12/ch16/sec1829.html
 However, the law is unclear on the financial institution's obligation
-- what steps does a bank have to take in order to comply with the law
in good faith?  In order to clear that up, the FDIC issues "Standard
Operating Procedures," in which it indicates what a bank is expected
to do.  Apparently, the FDIC originally contemplated requiring a
fingerprint check (which would allow an NCIC check) for all bank
employees.  After hearing industry comment, however, the FDIC withdrew
that proposed requirement, and leaves it up to the financial
institution to determine its own procedures.

"After considering the comments, the FDIC has decided not to address
fingerprinting in the final SOP. Instead, the FDIC will allow each
insured institution to determine what screening methods it will use,
and will look to the circumstances of each situation to determine
whether an inquiry was reasonable. The FDIC believes that at a
minimum, each institution should have a screening process to uncover
information regarding a job applicant's convictions and program
entries, which would include, for example, a written application
listing such convictions and program entries, although other
alternatives may be appropriate."
http://www.fdic.gov/news/news/financial/1998/98sop19.txt

I hope this clarification has been helpful.  Please let me know if I
can provide anything further.

---

Request for Answer Clarification by mrgutfreund-ga on 19 Jun 2006 16:03 PDT

Keep in mind that I am talking about an investment bank, which differs
from a commercial bank in that it may not be federally insured.  So
when you say bank, do you mean commercial bank?  In general, then, do
investment banks also have this federal insurance and thus the right
to access federal databases (such as the NCIC)?  What if the bank has
two units--commercial and investment banking--then do the units
operate under different laws and have different access rights to
federal databases?

---

Clarification of Answer by hagan-ga on 19 Jun 2006 16:35 PDT

Hello again!
Let me correct a possible misapprehension -- financial institutions DO
NOT have direct access to NCIC.  Instead, they have the right to
submit a request to the FBI to conduct an NCIC check.  They cannot
conduct an NCIC search themselves.  So the last part of your question,
dealing with whether an institution has "access" to the NCIC, is a
result of a misimpression, and I apologize for the confusion.
With respect to "investment" banking versus "commercial" banking, it's
my understanding that the distinction between them is largely academic
at this point, especially for the large market players.  Congress no
longer requires the two activities to be separate, and commercial
banks (regulated by the Fed) engage in investment banking all the
time.  See http://www.riskglossary.com/link/united_states_financial_regulation.htm

The key for NCIC access -- and by "access," bear in mind that I'm
talking about a right to make a request to the FBI, not direct access
by any means -- is that the financial institution itself be "federally
chartered or insured."  Note that federal insurance is not necessarily
required!  If the bank is "federally CHARTERED," then Congress has
directed the FBI to assist in providing NCIC pre-employment checks.

Very good information... Thanks for all your help.  Let's work together again!