Employers can request an FBI background check only when authorized by state or federal laws and regulations. Many industries require potential employees to be screened by the FBI before they can receive work licenses.
But the FBI databases were not intended to be comprehensive. Instead, they function as a sort of index composed of arrests; the outcomes of those cases often are not reflected in the FBI’s records. A 2006 U.S. attorney general’s report estimated that half of the FBI’s arrest records did not include disposition information.
A spokesman for the FBI’s Criminal Justice Information Services, which handles the databases, did not provide a more current estimate. However, in a statement, the agency said that it relies on the states to provide its records and keep them current.
The design “decentralizes the criminal history responsibility by making the states, rather than the FBI, primarily responsible for record maintenance and dissemination,” it said.
At the state level, many of the records are incomplete. A report by the Justice Department in 2010, the most recent available, found that in about half the states, as many as two in five records were missing final outcomes. Twenty-seven states reported a backlog of disposition data. Transmitting the information from the courts to state records agencies could take less than a day in Delaware to 555 days in Kansas.
Updating the records of those who fall through the cracks can be confusing and cumbersome. FBI regulations say that employers and licensing agencies should give applicants time to challenge and correct their records, either by contacting the FBI or the jurisdiction that collected the data. But applicants are not always given a copy of their report or told why they were disqualified. Often, the burden is on them to prove an error was made.
The NELP report highlighted the Transportation Security Administration’s move to require FBI screenings for port workers in 2007. Since then, more than 120,000 applications were initially disqualified because of a background check, according to TSA statistics. Just over half of them filed for waivers or appeals to prove they were eligible — and 94 percent of them were successful.
Meanwhile, about a quarter of the 4 million applications to work on the 2010 Census were put on hold after the Commerce Department ran FBI background checks, according to a lawsuit filed against the agency. Applicants had 30 days to prove the FBI’s information was incorrect — but the alleged infractions were not reported to them.
Among the hundreds of thousands of rejected candidates was Precious Daniels of Detroit, who was arrested in 2009 during a peaceful protest and had her charges dropped, according to the suit. Vivian Kargbo of Boston was supposed to have her records sealed after two charges from a juvenile arrest in 1996 were dismissed. Scotty Desphy of Philadelphia thought these charges from her arrest 28 years ago were expunged after she served a year of probation, but they remained on her FBI rap sheet.
“It was a dramatic screen of basically anybody with any interaction with the criminal justice system,” said Adam Klein, a partner at law firm Outten & Golden, which is handling the case. “It included the craziest things.”
The suit alleges that the Census Bureau’s FBI screening process resulted in a disproportionate number of rejections for applications from blacks and Hispanics. These minorities are arrested in higher numbers, which civil rights activitists attribute partly to racial profiling.
Forty-one percent of the census applicants who showed up in the FBI’s criminal databases were black and 20 percent were Hispanic. If certified for class-action status, the suit would cover about 850,000 people, making it the largest discrimination suit in history.
The Commerce Department declined to comment.
The NELP report called for a more “robust” appeals process that would require employers to inform applicants why they were disqualified and give them at least 60 days to dispute any errors. It said that the FBI should provide regular reports to Congress on its background checks and any effect on minorities.
“People lose their jobs. They lose their homes. They have to go on public benefits to feed their kids,” Neighly said of the inaccurate reports. “It is so damaging.”