North Carolina recently expanded residents’ opportunities to acquire expungement of criminal records; however, advocates have found that this may not be as effective at giving individuals a clean slate as they may expect. Expungement is permitted for a wide variety of criminal cases and removes records of arrests, court dismissals, and criminal charges. However, due to gaps in how these records are scrubbed, employers and landlords may be able to access them.
Last year the expungement process was expanded, but these expungements only apply to government records such as court records and arrest sheets. Expungement does not apply to privately held records such as those maintained in the databases of background check providers. This means that private vendors of background checks that have access to electronic court records provided by the state may add records to their databases, and they are never informed by courts or state agencies of the expungement. This means that the expunged records may still appear on a background check for employment or rental purposes.
However, though expungements have increased enormously under the recent reforms, this issue is not a new one. For more than a decade, the state has required background check providers attempting to acquire court records to use the Administrative Office of the Court’s electronic records system, which officials hoped would ensure that providers would have access to the most up-to-date information. Yet, this fails to ensure that providers are aware of when records should be deleted from their own databases because private vendors are not notified of the change in status.
Though legislators have discussed the issue, currently, there is no requirement that third parties be notified when a change in status occurs. In response, several advocate organizations are pushing for the General Assembly to pass legislation to correct this and provide background check providers with a notification when records have been expunged.
This does not mean that there is no recourse for those who discover that an expunged record is still being reported. Background check providers are obligated under the Fair Credit Reporting Act to ensure reasonable procedures are in place to guarantee accuracy and, upon notice of a dispute, to perform an investigation and may face civil liability for failure to do so. This is one of the reasons why it is important for employers and landlords to choose a high-quality background check provider that regularly updates and confirms the accuracy of criminal records.
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