In February of 2022, California State Senator Steven Bradford (D-35th District) introduced Senate Bill 1262 (SB 1262) to the California legislature. This bill would require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s date of birth (DOB) and driver’s license number.
According to SB 1262, which would amend Section 69842 of the Government Code, current law in California requires a clerk of the superior court to keep an index of any action or proceeding filed in the court. Current California law also requires a separate index for plaintiffs and defendants in civil actions and for defendants in criminal actions.
Consumer reporting agencies (CRAs) that conduct background checks on individuals for employment usually search court records for a DOB or driver’s license number along with the individual’s name so the CRA can make sure they are examining the correct records to comply with accuracy requirements under the Fair Credit Reporting Act (FCRA).
Ruling Prohibits Display of DOBs and Driver’s License Numbers
In May of 2021, a California Court of Appeals ruled in All of Us or None v. Hamrick that a DOB and driver’s license number cannot be used to identify an individual when searching a court’s electronic criminal index. The ruling was based on state law – California Rules of Court, Rule 2.507 – and may impact California state courts.
In the case, the plaintiff – a civil rights organization – filed a complaint because Riverside Superior Court allowed access to court records of a criminal defendant by entering a person’s date of birth on its website. A trial court found the website did not violate the Rules of Court but the California Court of Appeal reversed the finding.
The opinion stated: “After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number.”
PBSA and CDIA Respond to Ruling
In response to the ruling, the Professional Background Screening Association (PBSA), a non-profit organization representing the background screening industry, and the Consumer Data Industry Association (CDIA), the voice of the consumer reporting industry, submitted an amicus letter to the California Supreme Court in July of 2021.
The letter stated that “the Court of Appeal’s ruling would precipitate an utter disaster in nearly every sector of the California economy. If this Court does not reverse the opinion, criminal background checks – which make most employment in this State possible – will be severely delayed, and in many instances they will no longer be possible at all.”
The letter also explained that the Court of Appeal’s opinion incorrectly interpreted Rule 2.507(c) because “nothing in the rule’s text bars searches that employ these identifiers as filters. The Court of Appeal misread the rule by collapsing the crucial distinction between displaying and searching, which has resulted in a blanket ban on search fields for date of birth.”
The PBSA and CDIA insisted that background checks will be difficult, if next to impossible, without DOBs or driver’s license numbers. “Practically speaking, it will no longer be possible to consult criminal records in California for purposes of conducting routine background checks for many or most employment, tenant, and volunteer candidates.”
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