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Stephen Foxley Selected Issues in Information Privacy

Prof. Randy Dryer Spring 2013

Is it Time to Forget Expungement?

Introduction

This paper explores certain legal and policy considerations surrounding expungement, the

removal of a person’s arrest and conviction from the public record. Specifically, this paper will

discuss I) why expungement exists, II) creation of an expunged criminal record, III) legal

remedies available under state and federal law, and IV) why the limited utility of expungement

suggests its elimination as a legal remedy.

I.

Only five (5) states expressly prohibit a private employer from considering a criminal

conviction as a condition of employment.1 An arrest or conviction can also make it difficult to

receive housing, welfare, driving privileges, the right to vote and other government benefits.2

Even so, according to one estimate, some 25% of the United States’ population will have a

criminal record for some portion of their lives.3 Many of us likely know someone who has

struggled with disclosing an old arrest or conviction, and the negative impacts it can have on

1 These states are Hawaii, Kansas, New York, Pennsylvania and Wisconsin. Ben Geiger, The Case for Treating Ex-Offenders As A Suspect Class, 94 Cal. L. Rev. 1191, 1203 (2006) 2 Id. at 1198. 3 Elizabeth A. Gerlach, The Background Check Balancing Act: Protecting Applicants with 2 Id. at 1198. 3 Elizabeth A. Gerlach, The Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal Background Checks in Hiring, 8 U. Pa. J. Lab. & Emp. L. 981, 982 (2006)(citing Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 Fordham Urb. L.J. 1501, 1502 (2003)).

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their lives.

More than forty (40) states provide for expungement,4 although only thirteen (13) permit

a person to deny such events happened upon inquiry.5 Although the remedy varies slightly from

state to state, expungement can generally be defined as the as the removal of a person’s arrest,

conviction or other criminal history from public government records.6 Expungement is viewed as

an equitable remedy to combat the public stigma (and legal consequences) briefly mentioned

above that attach to person’s having a criminal record.7 It is argued that expungement offers a

way to “rehabilitate [these persons] by providing “an accessible or effective means of restoring

social status,’” especially in an age of plea bargains.8 On the other hand, critics of expungement

will look at the morality of creating a government-sanctioned “lie”, the practical limitation that

expunged information remains readily available, and the potential dangers to society and

effective law enforcement created by expunging criminal records.9

The applicability of expungement statutes varies wildly from state to state. For example,

under Alabama law, a person arrested or taken into custody who is released without charge, or

cleared of the offense, must have any records of the proceedings eliminated and removed by all

4 Adam Liptak, “Expunged Criminal Records Live to Tell Tales,” New York Times. Published October 16, 2006, accessed April 14, 2013. 5 Supra note 1, at 1200. 6 Black’s Law Dictionary, Second Pocket Ed. 265. See also Electronic Privacy Information Center brief on “Expungement”. http://epic.org/privacy/expungement. 7 Fruqan Mouzon, Forgive Us Our Trespasses: The Need for Federal Expungement Legislation, 39 U. Mem. L. Rev. 1, 5 (2008). 8 Michael D. Mayfield, Revisiting Expungement: Concealing Information In The Information Age, 1997 Utah Law Rev. 1057, 1062. 9 Id, at 1066-73.

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criminal justice agencies within 30 days.10 Conversely, Alaska law only permits expungement

for criminal records where the would-be expungee proves beyond a reasonable doubt that the

conviction was made as a result of mistaken identity or false accusation.”11

II.

Under the Utah Expungement Act (the “Utah Act”), a person may seek expungement of

records12 relating to criminal activity, including arrest, investigation, detention, or conviction

record.13 In addition to providing official eradication of the records related to criminal activity,

Utah’s expungement statute prohibits replies to any inquiries14 related to expunged records,

including by potential employers.15

Expungement orders gag government agencies and officials from disclosing any

identifying information regarding the events of record after an expungement occurs.16 An

individual who receives an expungement order may legally respond to any inquiry regarding

such activities as if the criminal event never occurred.17

Traditionally, federal courts have also expunged criminal records, basing their authority

10 Ala. Code § 41-9-625 (2013). 11 Alaska Stat. § 12.62.180 (2013). 12 See Utah Code Jud. Admin. R. 4-202.2(3) (Any “books, letters, documents, papers, maps, plans, photographs, films, cards, tapes, recordings, data or other materials” except for “drafts, calendars, notes or similar materials prepared for the originator’s personal use or for the personal use of an individual for whom the originator works” or “materials legally owned by an individual in the individual’s private capacity”); see also UTAH CODE ANN. § 64G-2-103. 13 UTAH CODE ANN. § 77-40-103. 14 UTAH CODE ANN. § 77-40-108. 15 Doe v. Utah Dept. of Public Safety, 782 P.2d 489, 492 (Utah 1989); accord Ambus v. Utah State Bd. Of Educ., 800 P.2d 811 (Utah 1990). 16 UTAH CODE ANN. § § 77-40-101 et seq. § 109 lists limited exceptions to the rule. 17 UTAH CODE ANN. § 77-40-108.

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on the common law.18 However, federal expungement19 has been called into question by a

Supreme Court decision that limited federal court subject matter jurisdiction over

expungement.20

Even when a person meets the statutory criteria to obtain an order of expungement, Utah

courts may nevertheless deny such orders when the expungement is “contrary to the interests of

the public.”21 The Utah Supreme Court interprets this language as a broad grant of authority to

the trial courts.22

A court’s grant or denial of expungement will withstand judicial review unless a

petitioner shows the court’s ruling exceeded the “limits of reasonability.”23 In State v.

Chambers,24 the only decision to address the “contrary to the interests of the public” standard,

the trial court expunged the record of an individual convicted of misusing public funds. The

court did not disclose any other information regarding the facts of the case. A prosecutor angry

that the expungement had been granted challenged the order, but the Utah Supreme Court

18 United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). See also U.S. v. Williams, 582 F.Supp.2d 1345 (D. Utah 2008); United States v. Ward, unreported decision 2009 WL 5216861, 1 (D. Utah). 19 See US v. Coloian, 480 F. 3d 47, 52(1st Cir. 2007) (Federal courts lack jurisdiction to expunge based solely on equitable grounds); accord U.S. v. Meyer, 439 F.3d 855, 859-60 (8th Cir.2006); U.S. v. Sumner, 226 F.3d 1005, 1014 (9th Cir.2000). 20 Kokkenen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) (supplemental and ancillary jurisdiction require factually interdependent circumstances that facilitate proceedings). 21 UTAH CODE ANN. § 77-40-107. 22 Id.; State v. Chambers, 533 P. 2d 876 (Utah 1975). 23 See Chambers, supra note 23, 876 (Utah 1975) (Upholding the trial court’s expungement order. Note: this case relied on a predecessor statute that permitted expungements "if it be compatible with the public interest." 24 Chambers at 876.

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summarily rejected the argument under the standard of review described above.25

While the Utah Act gives courts broad authority to grant or deny expungements, sealed

court records prevent review of court orders that show a denial to someone that meets the

statutory requirements.26 Therefore, it is impossible to know whether or how often the court

refuses to grant such orders.

III.

Persons may view non-government records regarding criminal activity. This is because

Utah and federal law gives little if any protection to persons whose expunged criminal activity is

exposed in non-government records such as news publications, blogs, or other databases

maintained by private parties.27 An expungement order eradicates the official existence of some

legal event and permits legal denial of it, but does not affect privately obtained information.28

Thus, complete erasure of activities from the public realm is impossible because independent

sources may retain information related to expunged acts.29 Courts have noted this limitation, but

provide little or no remedies because: A) no privacy expectation attaches to expunged criminal

records, B) non-government records fall outside of the scope of the Utah Act, and C) it is not

libel or defamation to expose expunged records. The limited remedies that have been found

relate to D) Title VII of the Civil Rights Act and the Fair Credit Reporting Act.

25 Id. 26 Performed using a Westlaw search of Utah state courts or Utah federal courts for the District of Utah. Note: Westlaw trial court orders only date to 2001 and later. 27 See Ambus, supra note 15, at 813. 28 See Doe, supra note 15, at 491. 29 See, e.g. Id., Ambus, supra note 15, at 811.; Nilson v. Layton City, 45 F.3d 369 (D. Utah 1995)

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A.

An individual holds no privacy rights related to the information contained in expunged

criminal records.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution

safeguards the privacy of an individual's personal information from government disclosure.30

Similar protections are also found under the Utah Constitution.31 However, such laws only

prohibit public disclosure of “highly personal matters” representing “the most intimate aspects of

human affairs.”32 For the reasons discussed below, information in an expunged criminal record

does not qualify as highly personal and is therefore not entitled to traditional privacy

protections.33 Furthermore, there is no indication that Utah courts have construed the Utah

Constitution to provide a broader privacy right than is provided under the U.S. Constitution.34

In Nilson v. Layton City,35 a school district dismissed a teacher after learning of a prior

sex offense charge. The school district obtained the information from a highly publicized news

story that relied on expunged information disclosed by the arresting police officer. The teacher

brought suit against the officer, alleging a violation of his right to privacy. The court rejected the

30 See Stidham v. Peace Officer Standards And Training, 265 F.3d 1144, 1155 (10th Cir. 2001) (“One such sphere of constitutionally-protected privacy is ‘the individual interest in avoiding disclosure of personal matters,’” citing Whalen v. Roe, 429 U.S. 589, 599 (1977). See also Paul v. Davis, 424 U.S. 693 (1976); Larsen v. Johnston, 327 F. App'x 53, 55 (10th Cir. 2009). 31 See, e.g. Utah Const. art. I, § 14 (“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.”). 32 Nunez v. Pachman, 578 F.3d 228, 231-32 (3d Cir. 2009)(citing Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996), Wade v. Goodwin, 843 F.2d 1150, 1153 (8th Cir.1988)). 33 See Nilson, supra note 30 at 371-72. 34 See Larsen, supra note 31 at 56 (misdemeanor citations). 35 45 F.2d 369 (10th Cir. 1995).

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teacher’s argument that the officer’s disclosure amounted to a violation of the teacher’s right to

privacy, holding that the teacher had no legitimate expectation of privacy.36

As a general rule, “[c]riminal activity is. . . not protected by the right to privacy” because

“a validly enacted law places citizens on notice that violations thereof do not fall within the

realm of privacy.”37 Accordingly, disclosures of arrest records,38 judicial proceedings,39 and

information contained in police reports,40 do not implicate the right to privacy.41 Expungement

does not change a court’s analysis. According to the court in Nilson, “an expunged arrest and/or

conviction is . . . never truly removed from the public record,”42 and “the underlying object of

expungement remains public.”43 Furthermore, even if the information could be removed from the

public, an expunged criminal record would still not be eligible for privacy protection because

privacy protections must be “deeply rooted” in the customs and traditions of our nation.44

According to the courts, this goes against creating a privacy right in an expunged record, because

of “the historic right of public access to criminal records,”45 not erasure thereof.

Therefore, a person has no constitutional expectation of privacy in regards to the exposed

36 See Nilson, supra note 30 at 372. See also Mengels v. Pena, 789 F.2d 836 (10th Cir. 1986) (evidence of illegal activity); Paul v. Davise, 424 U.S. 693 (1973) (disclosure of arrest record); 37 See Nilson, supra note 30, at 372 (10th Cir. 1995)(internal citations omitted). 38 See Davis, supra note 31 at 693. 39 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975). 40 Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3d Cir.1991), cert. denied 502 U.S. 1095 (1992). 41 See Nilson, supra note 30 at 372. 42 See Nilson, supra note 30, at 372. See also Mengels, supra note 37, at 836 (evidence of illegal activity); Paul, supra note 31, at 693 (disclosure of arrest record). 43 See Nilson, supra note 30, at 372. 44 See Mangels, supra note 37, at 839 (citing Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 228-30(1985) (Powell, J., concurring)). 45 See Nunez, supra note 37, at 232-33 (citing Nilson, 45 F.3d at 372).

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information contained in an expunged criminal record.

B.

Independently obtained information regarding expunged criminal activity fall outside of

the purview of the Utah Act.46

In Ambus v. Utah State Board of Education,47 a Utah school district dismissed a teacher

after learning of the teacher’s arrest on drug charges, but prior to the record’s expungement.

Although the court dismissed his charges and expunged the arrest, the school district refused to

rehire the teacher. He brought a federal suit alleging violations of his due process rights. The

news media publicized the case, alerting the Utah Board of Education (“the Board”) of the

alleged misconduct. The Board revoked the teacher’s teaching license, relying in part on

testimony given by the arresting officer and another state official with knowledge regarding

teacher’s toxicology report. The officials provided these statements after the expungement

order’s effective date.

After the trial court approved the Board’s use of the testimony, the Utah Supreme Court

reversed. The court held that after expungement orders become effective, the Utah Act prohibits

consideration of both records and later-given testimony by a state official.48 However, the court

limited its holding to review of government record sources and state official testimony. The Utah

court expressly stated that consideration of independently obtained information in no way

46 Ambus v. Granit Bd. Of Educ., 800 P.2d 811 (Utah 1990). Contra Doe v. Utah Dept. of Public Safety 782 P.2d 489, 494 (Utah 1989) (Employer cannot “consider or even enquire about a petitioner’s expunged offenses.”). 47 800 P.2d 811 (Utah 1990). 48 Ambus, 800 P.2d at 813.

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violated the statute.49 In its decision, the court held that “the intent of the legislature was not to

create ‘super-citizens’ by requiring employers to ignore press releases or prevent them from

independently checking the background of employees or future employees simply because the

record has been expunged.”50 Therefore, while the Utah Act prohibits access to state records or

reliance on the testimony of a public official after an expungement order has been issued, this

limitation does not extend to independently procured information, such as information obtained

through the media.51

Because the Board also relied on reports compiled by the school district prior to the

expungement’s effective date, the 10th Circuit nonetheless upheld the license revocation.52 The

court held that information obtained or collected before an expungement order may be passed

along or presented to others for review, even after the court issues its expungement order.53

While courts may erase the records of a person’s criminal activity, in practice it gives

little if any shield to an expungee except for limiting access to the government’s records.

Expungees receive no expectation of privacy regarding expunged records already in the public

realm, and the general public may still use and consider information relating to the relevant

criminal activity so long as they obtain it from independent sources that collected the information

before the expungement order’s effective date.

C.

Plaintiffs in other states have likewise been unsuccessful in bringing libel or defamation

49 Id. 50 Ambus, 800 P.2d at 813-14. 51 State v. Norris, 48 P.3d 872, 878 n. 4 (Utah 2001). 52 Ambus v. Granit Bd. Of Educ., 975 F.2d 1555 (10th Cir. 1992). 53 Id. at 1567-68.

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claims under various expungement statutes when someone publicizes another’s involvement in

an expunged matter, although no Utah case law exists on the matter.54

In G.D. v. Kenny,55 a political group published campaign flyers publicizing the expunged

drug-related conviction of a candidate’s staffer. The staffer sued for libel, arguing that the

“record of his conviction was expunged and, therefore, his conviction—as a matter of law—is

deemed not to have occurred.”56 Thus, according to G.D., “after the expungement of his record,

the pronouncement that he was convicted of a crime was simply false.”57 The trial court held that

the defendants may “have been under an obligation not to publish” the information and thus

“liable for defamation”. On appeal, the New Jersey Appellate Division reversed, and the New

Jersey Supreme Court affirmed the reversal. According to the Court:

“Truth may be personally embarrassing and offensive to some, but it remains a[n absolute] defense in a defamation action, even when the truth revealed concerns information contained in an expunged record. Here, for purposes of the defamation action, it would make no difference that the speaker knew of the expungement order or how he obtained it.”58

Thus, the New Jersey court followed the rule of other jurisdictions59 and held that the

“traditionally recognized defense of truth to a defamation action was not lost in this case because

of the existence of an expungement order.”60

D.

54 Google Scholar search of Utah cases of “expunge libel”. Retrieved 12 April 2013. 55 15 A.3d 300 (New Jersey 2011). 56 Id. at 304. 57 Id. 58 Id. at 316. 59 Rzeznik v. Chief of Police of Southampton, 373 N.E.2d 1128, 1130–31 (Mass. 1978); Bahr v. Statesman Journal Co.,, 624 P.2d 664, 665–67 (Oregon App. 1981). 60 Supra, note 56 at 314-15.

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One area where a person may be held liable for viewing expunged criminal records is

Title VII of the Civil Rights Act, if considering criminal history disparately impacts61 protected

“minority groups.”62

To withstand challenges by individuals claiming discrimination based on criminal

history, an employer must show that these considerations are “consistent with business

necessity.” 63 However, the “business necessity” requirement provides little protection to

employees. In El v. SEPTA,64 a city transit authority fired one of its drivers after learning of his

prior criminal conviction. SEPTA’s policies prohibited hiring drivers convicted of a broad list of

crimes, including crimes of “moral turpitude.” 65 The 7th Circuit rejected the driver’s

antidiscrimination claim, holding that screening drivers based on criminal records would

“reasonably” keep the agency from “endangering its patrons.”66 Only one other appellate court

has considered this issue, and the United States Supreme Court remains silent on it. In Green v.

Missouri Pacific Railroad Company, an employer refused to hire employees convicted of any

offense other than a minor traffic violation.67 The 8th Circuit held that this policy was too broad

61 Griggs v. Duke Power Co., 401 US 424, 432 (1971) (developing the disparate impact rule). See also El v. Southeastern Pennsylvania Transp. Auth., 479 F.3d 232, 245 (3d Cir. 2007); Green v. Missouri Pac. R.R. Co., 523 F.2d 1290 (8th Cir.1975) (applying rule to criminal convictions). See also EEOC Policy Guidance No. N-915, “Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964” (Feb. 4, 1987); UTAH ADMIN. CODE R. 606. 62 See Griggs, supra note 62, at 432. 63 42 U.S.C. § § 2000e-2(a), (h), (k); Griggs, supra note 62, at 424; UTAH CODE ANN. § § 34A-5-101 et seq. 64 See El, supra note 62. 65 Id. at 236. 66 Id. at 244-45; but cf. 42 U.S.C. § 2000e-2(k) (burden to prove on employee, suggesting a higher standard of review than rational basis.). 67 See Green, supra note 62, at 1290.

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to be justified by “business necessity.”68 However, because of the draconian nature of the

prohibition it struck down—barring employment to anyone convicted of offenses other than

minor traffic violations—the precedential value of this holding is likely limited.69

Therefore, while Title VII of the Civil Rights Act makes it possible for someone to face

liability for discriminating against someone wholly on criminal history, in practice this statute

provides little security those with criminal records, expunged or not. 70

Another area of potential liability regarding expunged criminal records are in regards to

background checks, such as the Fair Credit Reporting Act71 These laws impose certain reporting

requirements on persons who make decisions as a result of information found in a credit report,

such as whether to extend credit or hire someone.72 For the most part private causes of action are

not allowed under the statute.73 That said, the Federal Trade Commission (“FTC”) has taken

steps to help ensure that information furnishers are providing accurate information to employers.

For example, on August 8, 2012 the FTC announced a settlement with employment background

screening company HireRight Solutions for $2.6 million.74 According to the FTC, HireRight

68 Id. at 1298-99. 69 See El, supra note 62, at 232 (recognizing as such). 70 While outside the scope of this paper, convicted criminals are also not protected as a suspect class under the 14th Amendment’s Equal Protection Clause. See Porter v. Walters, 39 F.3d 1192 (10th Cir. 1994); United States v. Smith, 818 F.2d 687, 691 (9th Cir. 1987). Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir.1970); McGarvey v. District of Columbia, 468 F.Supp. 687, 690 (D.D.C.1979); cf. Doe v. Edgar, 721 F.2d 619, 622 (7th Cir.1983) (offenders twice convicted of driving under the influence not suspect class). 71 15 U.S.C. § 1681 et seq. 72 15 U.S.C. § 1681b. 73 15 U.S.C. § 1681m(h)(8). 74 See “Employment Background Screening Company to Pay $2.6 Million Penalty for Multiple Violations of the Fair Credit Reporting Act”. Federal Trade Commission. Published August 8, 2012. Accessed at http://www.ftc.gov/opa/2012/08/hireright.shtm.

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Solutions failed to properly investigate and correct disputed information, and to “take reasonable

steps to ensure that the information in the reports was current and reflected updates, such as the

expungement of criminal records.”75 Thus, a credit reporting agency might be liable for failure to

adequately update a person’s record to reflect a valid expungement, although no private cause of

action will arise against someone who takes an action in reliance of the information in such

reports, unless Title VII of the Civil Rights Act is violated.

IV.

In an age where “Google never forgets,”76 the seeming ineffectiveness of expungement as

a legal remedy becomes obvious. Where before, if an individual wanted to view a person’s

criminal record, he would need to go to the county courthouse and could maybe retrieve local or

state records, now $20 and a name can buy access to a person’s entire life history.

The time has passed where the government can effectively remove a person’s criminal

records from the public realm at large. People have acknowledged this idea for decades,77 yet the

legislature continues to merely tinker with expungement remedies.78 It is time states

acknowledge that expungement no longer serves the equitable purpose for which it was initially

created. If that is the case, expungement should be done away with as a legal remedy. The public

has a right to know who amongst them has engaged in criminal activity. Furthermore, the public

should not encourage its government to engage in lies or otherwise sanction denial of criminal

75 Id. 76 Mike Gorrell. “U. students to local governments: Be more open”. Salt Lake Tribune. Published April 8, 2012. 77 See Mayfield, supra note 8. 78 See, e.g. the two bills passed at the 2013 Utah Legislature General Session, H.B. 33 and 2 H.B. 69.

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events that did in fact occur. If society truly believes that those with criminal records are unfairly

treated, addressing the treatment of people with criminal records is a much better way to address

that issue, not further tinkering with expungement.

Conclusion

Expungement orders erase the criminal records of a person, but in practice provide little

shield to records already publicized. No privacy expectation attaches to expunged records, and

persons may consider legally erased events discovered in non-government records or from

information independently collected. Given the inherent legal limitations of expungement, and

the proliferation in availability online of criminal records, courts should no longer use

expungement.