Expunged Records: Can Law Enforcement Access Them?

Expungement laws vary by state, but in most states, expunged records are sealed, not destroyed. This means that while the general public will not be able to see your past crimes, certain individuals and organizations can still access your criminal record. Law enforcement agencies can see sealed records, and courts, law enforcement, prosecutors, and other criminal justice agencies can access expunged records for future criminal investigations and charging and sentencing decisions.

Law enforcement access to sealed records

The access of law enforcement to sealed records is a complex issue that varies across different jurisdictions. In the United States, expungement laws aim to strike a balance between public safety interests and an individual's right to move on from past mistakes. While expungement hides criminal records from public view, it does not result in the destruction of the records.

In some states, law enforcement agencies are generally exempt from sealing or expungement laws, allowing them to access sealed records. For example, in Nevada, law enforcement can access sealed records, but they are not permitted to use that information for arrest or charging purposes. In North Carolina, state judges and law enforcement agencies have access to sealed records. Utah also permits law enforcement agencies and federal authorities to access sealed records.

On the other hand, certain states restrict law enforcement access to sealed records. For instance, New York requires a court order or formal written request for law enforcement to access sealed records. Other states, like Virginia, Kentucky, and West Virginia, have similar restrictions in place.

Additionally, the type of record and the purpose of access play a role in determining law enforcement's access. Some states allow access to sealed records for employment and certification purposes, while others restrict access to records that do not result in a conviction. Furthermore, federal employers and agencies that conduct fingerprint background checks can typically access sealed records.

It is important to note that while expungement provides benefits in terms of employment and housing opportunities, there are still situations where disclosure of sealed records may be required. Certain government agencies, such as courts, law enforcement, and criminal justice agencies, can often access sealed records for criminal investigations, sentencing decisions, and future criminal proceedings. Therefore, it is advisable to understand the specific laws and regulations pertaining to sealed records in each jurisdiction.

Criminal investigations and charging decisions

While expungement laws vary by state, certain general principles apply. Expungement hides your criminal record from public view, but it does not mean a "reset". In most states, expunged records are sealed, not destroyed, and can be accessed by law enforcement agencies, courts, prosecutors, and other criminal justice agencies for future criminal investigations, charging decisions, and sentencing. This means that if you are arrested for a subsequent offense, the court will have access to your expunged records during your trial.

For example, in Nevada, the expunged record is not able to be viewed by anyone except the Nevada Gaming Commission, and only if they obtain a court order. In contrast, in North Carolina, state judges have access to expunged records, and in Mississippi, you must disclose your expunged record if applying for a job with the military, law enforcement, or a professional license. In Utah, law enforcement agencies and federal authorities can access expunged records.

In most states, you are legally permitted to answer "no" when asked about criminal records on employment or rental applications after expungement. However, certain employers, such as those in law enforcement, child protection, corrections, public health, and elections, may require disclosure of expunged records. Additionally, if you work in a fiduciary capacity, handle confidential or financial records, or provide services in homes, your employer may have access to your expunged records. It is important to note that expungement laws aim to balance public safety interests with the rights of citizens to move on from past mistakes.

Employment applications and background checks

In terms of employment applications, expungement can be highly beneficial as it allows individuals to legally deny having a criminal record in most situations. This means that when asked about criminal history on job applications, individuals with expunged records can typically answer "no". However, it is important to note that this right is not absolute. Certain government and public safety-related positions, such as law enforcement, military, or jobs requiring security clearances, may still have access to expunged records. Additionally, some states require disclosure of expunged records for specific professions, such as applying for a professional license in law, medicine, or education.

Background checks conducted by private employers typically use name-based checks through private companies, which will not reveal expunged records. However, some employers, particularly those working with vulnerable populations or requiring enhanced vetting, may conduct fingerprint background checks through federal databases, which can reveal expunged records. It is also worth noting that some criminal background checks may still report expunged records due to discrepancies and delays in updating databases.

While expungement can greatly improve employment prospects, it is not a guarantee that expunged records will never be discovered. The specific laws and practices surrounding expungement vary by state, and certain government agencies and courts may retain access to these records. Therefore, it is essential to understand the expungement laws in one's state and the rights and limitations they provide.

Disclosure requirements for sensitive work

Disclosure requirements for expunged records vary across different US states. In most states, expunged records are sealed, not destroyed, and remain accessible to law enforcement agencies, courts, prosecutors, and other criminal justice agencies. Certain government agencies, such as the FBI, will also have access to expunged records. In some states, like Nevada, expunged records are not accessible to anyone except the Nevada Gaming Commission, and only if they can obtain a court order.

If you are seeking employment in a position involving sensitive work, you may be required to disclose certain expunged convictions. This is particularly relevant for government jobs that involve access to confidential or sensitive records, require security clearences, or involve working with vulnerable individuals. In most states, individuals who will be working with vulnerable populations, such as children, the elderly, or individuals with physical or behavioural impairments, are required to disclose expunged records on employment applications. This includes anyone working in schools, childcare facilities, hospitals, clinics, or nursing homes.

Additionally, employers in fiduciary roles, handling confidential or financial records, or providing in-home services may have access to expunged records. Agencies reviewing applications for professional licenses in fields such as law, pharmacy, or medicine may also have access. In some states, like Mississippi, individuals are legally required to disclose expunged records when applying for jobs with law enforcement or military agencies or when seeking certain professional licenses.

It is important to note that private employers, landlords, and others who perform background checks will typically not find expunged records. However, federal employers and those working with vulnerable people may conduct fingerprint background checks, which can reveal expunged records.

In terms of broader sensitive personal information (SPI), the CPRA, VCDPA, and CPA impose certain requirements on businesses. The CPRA requires businesses to use SPI only for limited purposes and to notify consumers and provide an opportunity to opt out of additional processing. The VCDPA and CPA require controllers to obtain consumer consent and conduct data processing assessments before processing SPI. Businesses must also refrain from using or disclosing SPI if consumers exercise their right to limit its use or disclosure.

Variances in expungement laws by state

The expungement laws in the United States vary across jurisdictions, with some states not permitting expungement or allowing it under very limited circumstances. In most states, expunged records are sealed, not destroyed, and the general public is restricted from viewing them. However, certain government agencies, including law enforcement, can almost always access expunged records.

Nevada

The expunged record cannot be viewed by anyone except the Nevada Gaming Commission, and only if they can obtain a court order. However, if the person is indicted for another offense, the sealed record may be unsealed.

North Carolina

State judges have access to expunged records, and if an individual is arrested for a subsequent offense, the court will consider their expunged offenses during the trial.

Mississippi

If an individual obtains expungement of their conviction in Mississippi, they must disclose it when applying for a job with the military, law enforcement, or a professional license, such as an attorney or physician.

Utah

State law allows law enforcement agencies and federal authorities to access expunged records. State licensing agencies, such as the Board of Education, can also access these records.

Oklahoma

In Oklahoma, "expungement" means "sealed." While the record is hidden from public view, it is not destroyed, and law enforcement agencies can still find an individual's criminal history. The law allows agencies to “inspect” the records with a court order.

California

California has an automatic expungement process for eligible convictions that occurred on or after January 1, 2021, restricting the ability of courts and repositories to release related information. Individuals can also pursue a certificate of rehabilitation, which can help overcome employment obstacles and pursue a pardon.

Alabama

Alabama's expungement legislation allows for expungement in multiple situations, but the applicant must pay all associated fees. However, convictions are not eligible for expungement.

Arizona

Arizona's expungement equivalent is "setting aside" a conviction. If the court grants the petition, the defendant is released from all penalties and disabilities resulting from the conviction, except those imposed by the Department of Transportation.

Florida

The Florida Department of Law Enforcement will automatically seal a record if the individual was not charged or if the case resulted in a not-guilty verdict or an acquittal. Judicial sealing and expungement are also available for many first-time offenders.

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