Thursday, May 16, 2013

Will a Virginia Expungement Continue to Have Value?

In Virginia, a person is generally entitled to an expungement, if they are found not guilty or their charge is dropped without any finding of guilt.  Here's what Virginia Law currently says:
The General Assembly finds that arrest records can be a hindrance to an innocent citizen's ability to obtain employment, an education and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which may occur as a result of being arrested and convicted.
Once expunged, a person does not have to disclose the charge on an employment application.  It is also a crime to ask someone about an expunged charge in the employment process (excluding federal security background checks).

Notwithstanding Virginia Law, some companies have continued to make information regarding expunged charges available - completely destroying the purpose of Virginia's system - and continuing to subject people to the consequences of having an unfounded charge appear on their record.  It's not fair at all and sidesteps Virginia Law. 

The Fair Credit Reporting Act currently provides some rights to consumers, but it doesn't cover everyone.  Last session, I introduced very simple legislation to close a hole against people who were selling inaccurate information to the credit bureaus.
§ 8.01-40.3. Unauthorized sale, publication, etc., of criminal history record information
Any person who sells, offers for sale, publicizes, or offers for publication the criminal history record information of another person pertaining to that other person's charge or arrest for a criminal offense more than 120 days after the State Police has confirmed to the person charged or arrested that such information has been expunged pursuant to Title 16.1 or Title 19.2 when he knows or has reason to know that the information has been expunged shall be liable to the other person for actual damages or $500, whichever is greater, in addition to reasonable attorney fees and costs.
It would give Virginians a cause of action against any person who sells access to information that has been expunged from the public record.  My legislation was killed after the companies that sell this information said making the information they sell to the public would be too burdensome. 

This 60 Minutes piece below that ran a few months ago, gives some insight as to what's going on in the industry.  The tolerance within the industry for putting out bad information is astounding.  

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