Background checks sometimes wrong
Supreme Court finds flaws in DOJ reports’ accuracy
The Wisconsin Department of Justice has routinely been selling criminal history reports that defame innocent people, and must change how it does business, the state Supreme Court ruled Thursday.
The fractured 6-1 decision, in four opinions totaling 92 pages, comes years after Dennis Teague first sued over the fact anyone requesting the background check on him would get a report reflecting the criminal history of his cousin, who once gave police Teague’s name as an alias.
“This is a slam dunk for us and innocent people around the state,” said Jeff Myer, director of advocacy for Legal Action Wisconsin.
Legal Action attorney Sheila Sullivan, who filed the original action claiming DOJ’s practices violated due process rights in 2010 in Dane County, said the decision means “this practice will stop and our clients’ reputations and integrity will be restored.”
DOJ spokesman Johnny Koremenos said the department continuously works on improving the Record Check System, which processes about 1 million requests a year.
“DOJ is dedicated to providing the most accurate information possible to its customers, and has been evaluating future improvements that will address the concerns announced in today’s fractured decision,” Koremenos said.
Justice Shirley Abrahamson said the DOJ’s continued practice “stirs outrage,” because it seemed to suggest it would do so simply because there was no legal way to force it to change.
“That is the response of a bully and not an appropriate
response of the government of a democracy,” wrote Court of Appeals Judge Gary Sherman, as quoted by Abrahamson.
Anyone can request a criminal background check on a person online for $7 through the DOJ website. Sometimes a submitted name and birth date match none of the 1.5 million records in the database, or match exactly to the proper person.
An algorithm determines how closely the submitted name matches information in the database.
In cases where the algorithm raises questions, a DOJ staffer manually reviews the records and makes the call on whether they match the request.
The background reports can impede a person’s chances for permits, licenses, benefits, housing and employment.
Many people would not necessarily know that they were denied something based on a false criminal background report.
The public records law has a provision that requires government officials to correct inaccurate records, but the DOJ argued that the database it keeps is not inaccurate.
The court agreed, but said the reports the DOJ sells that wrongly suggest innocent people have criminal histories are inaccurate.
The DOJ’s disclaimers, and a person’s ability to get an “innocence letter,” were not sufficient due process to protect the interests of people like Teague, the court found.
The problem “is that the DOJ has a policy and practice that it knows will predictably, consistently, and inaccurately suggest Mr. Teague has a criminal history, and there is no procedure by which he can stop this,” Justice Daniel Kelly wrote in a lead opinion.
While six justices agree some change must be made, four would send the case back to Dane County Circuit Court to figure out the proper remedy. Two would directly order the DOJ to alter its practices.
Justice Annette Ziegler dissented, suggesting the issue is one for the Legislature to resolve.
She agreed with the lower courts that the information in the report, though mostly about Teague’s cousin, including the fact he has used Teague’s name, is true and not defamatory.
Kelly responded in a footnote that the court, while respecting the Legislature’s prerogatives, must not “cede our own. When an executive agent of the state takes action that violates the statutory or constitutional rights of ‘innocent bystanders’ ...”
The DOJ advises requesters not to “assume that a criminal history record pertains to the person whose identifying information was submitted to be searched.” It further warns that the record “may belong to someone other than the person whose name and other identifying data you submitted for searching.”
More accurate, fingerprint-based criminal history checks cost $15.
But Kelly said the presumption of most people getting the report is that Teague has some criminal history. “If it believed the report did not relate to Mr. Teague, presumably the DOJ would not produce it,” he wrote.
Even after Teague and about 400 other people so affected get a socalled innocence letter from the DOJ, the department does not automatically include the letters with reports people request for those people in the future.
Two other plaintiffs in the case, Curtis Williams and Linda Colvin, became connected to others’ criminal histories in different ways, Myer said. Williams just has a fairly common name that the DOJ process connected to a criminal.
Colvin had her purse stolen and was literally a victim of stolen identity. Myer said Colvin was one of about 30 aliases used by the woman who compiled the actual criminal record.