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To serve or protect? 

Background check contractors demand information access from the SLO Superior Court after database-access cuts

For hours at a time, visitors to the San Luis Obispo County Superior Courthouse would see people slumped over a counter, fiddling with the court-provided databases, entering information into their own personal laptops.

Until recently, few people besides court staff knew what those longtime guests were up to.

But during the week of March 19, an order came down from the court’s chief executive officer, Susan Matherly, to remove the court’s self-help computer terminals while it confers with its state regulating agency on how to deal with the newcomers, and whether the court may be providing too much information to searchers seeking facts about people in the system.

The changes won’t likely directly affect the greater public, but people who depend on court dockets—attorneys, defendants, family members, journalists—will now have to wait longer in their quests for information that previously took seconds to obtain.

While policy is ironed out, the public continues to have access to criminal and civil records, but requests are being handled in person at various desks, and inquirers must provide specific information on the defendant before any records will be offered.

Since 2002, the courthouse and the SLO County Law Library have provided the public with computer stations linked to the court’s criminal and civil databases, which display lists of criminal cases and civil litigation, their respective docket reports, names of parties involved, and, in most cases, their outcomes.

After budget constraints caused the indefinite closure of the Grover Beach branch, SLO courthouse staffers saw an increase in traffic from background screeners scanning the database and logging data into their own computers.

Private background checkers offer contracting services to government agencies and private companies for such services as checking on the criminal and personal litigation history of job applicants.

The concern, Matherly said, is that while the database offers a do-it-yourself service that proves useful to a majority of the public, it may have unintended consequences for the people being looked up. And the court’s current “antiquated” system, in some cases, doesn’t provide the whole picture—or even worse, may disclose confidential information.

“[Public databases] don’t always present accurate information for what they’re using it for,” Matherly told New Times.

For example, criminal drug cases could result in a temporary conviction pending completion of a court-mandated drug deferment program.

“I wouldn’t want somebody to work hard to go through a program, do what they need to graduate, and then those charges—which should [show as] dismissed afterward—prevent them from getting a job somewhere,” Matherly said.

Background investigator Judie Smith, who runs San Luis Obispo-based J.H. Smith Consulting, told New Times that since the change in policy, she’s had to get creative to do her job. In order to keep up her workload, which she said sometimes requires her to check up to 75 names a day, she hired individuals at $10 per hour to stand in line and look up their 10-name limit for her. Smith said she’s also stacked the line with family members.

Court staffers who spoke with New Times said that records requests have begun to reach unmanageable levels, and are affecting day-to-day business.

Matherly said there have been instances of background checkers identifying themselves as federal investigators, at both the criminal and civil desks, demanding waivers on court-incurred fees such as costs for copies.

She cited case law that emphasizes the court’s role as custodian of confidential records, though people on the opposite end of the spectrum also claim that same case law supports open access.

As of press time, SLO Superior Court Presiding Judge Barry LaBarbera had just issued a response to Smith, saying the court remains in full compliance with the law, but is also awaiting direction from the Administrative Office of the Courts, which regulates policy for the state’s 58 trial courts.

Patrick O’Donnell, a supervising attorney for that office, said the court is weighing its obligation to provide access with protecting information deemed private, such as Social Security numbers, arrest warrant information, addresses, witness/victim names, and the like.

“It seems the situation in [SLO] is what they’ve historically provided contains more information than is permissible,” O’Donnell said. “But now, it appears access is properly in line with the rules of the court. … Although we’re continuing to look at the details.”

O’Donnell told Matherly in a March 23 e-mail that, based on an Administrative Office of the Courts preliminary survey, roughly two-thirds of courts in the state provide little or no criminal data online and require the public to make requests in person to a court clerk, as SLO
now does.

Since the terminals were pulled, Matherly has been inundated with angry e-mails from clients of background screeners as far away as the East Coast.

Lester Rosen, CEO of the Bay Area-based Employment Screening Resources, contends that the information field background screeners send to their clients is filtered by those companies to comply with laws such as the Fair Credit Reporting Act, enforced by the federal Trade Commission. He said the new policy makes it nearly impossible to process screenings within the industry standard window of 72 hours.

“What they’ve done is slow the pipe, and it’s a thin pipe,” Rosen said. “If I wanted to be emotional about it, I could say that one could conclude the court has decided to side with criminals rather than college students and law-abiding citizens.”

Peter Scheer, attorney with the advocacy group First Amendment Coalition, said that issues with antiquated systems or stretched staffing levels shouldn’t dictate the availability of accurate records.

“Any complaints about how hard or expensive it is to do should be met with a lot of skepticism. Many private [companies] have to do more with vast amounts of data all the time,” Scheer said. “As a social policy, it may be commendable that they’re trying to protect people, but you can’t block access to information.”

As court staff awaits direction from the Administrative Office of the Courts, the policy remains in place. Meanwhile, investigators such as Smith are still trying to maintain their workload in light of the new policy.

“From my perspective, I would have been more cautious in making a decision until I have all the facts,” she said. “This whole situation is terrible, terrible for everybody. I’m just trying to do my job.”

Matherly, on the other hand, said she’s doing her best to balance the court’s role as custodian of records while being as open as possible. Due to the court’s ongoing budget and staffing woes, however, the increased “customer” presence at the window will inevitably mean even longer wait times for services.

“I’m not trying to cut into anyone’s livelihood,” Matherly said. “This is a privacy issue. I don’t know what these background checkers are doing, who they’re selling it to, and if the information they’re getting is accurate; they’re kind of spoiling it for everybody.”

 

Staff Writer Matt Fountain can be reached at mfountain@newtimesslo.com.

 

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