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The Push to Access FBI Files

The Private Security Officer Employment Authorization Act (PSOEAA) was passed in 2004. That law granted private security employers the right to ask their states to screen job applicants against FBI criminal history information. More than three years after the bill’s passage, members of the security industry say security companies, for the most part, haven’t been able to take advantage of it.

“The majority of states haven’t taken any action at all to allow contract security to access those FBI criminal history records checks,” says Joseph Ricci, executive director of the National Association of Security Companies (NASCO). NASCO has embarked on a campaign to increase awareness of the PSOEAA and possibly get additional legislation passed that would expedite its implementation.

The implementation lag frustrates many in the security industry because access to the FBI information would augment their screening processes. William T. Hill, CPP, president of consulting and investigations at The Wackenhut Corporation, says that his company currently has to request information on a county-by-county basis for individuals applying for work, and if someone was arrested in a county that they did not report living or working in, the screeners might miss the arrest record. The FBI files would allow for more comprehensive searches.

“Anything that would give us national coverage for criminal information, especially in this day and age when people move from state to state and relocate so quickly and easily around the country, would be a big plus,” Hill says.

The FBI information also provides a more exact search because of its use of fingerprint comparisons, says Hill. There are “lights out” definite matches in the fingerprinting world, whereas name and number matches alone are much less exact due to duplicate names and reliance on applicants having provided the correct identification information.

Ricci thinks a major source of the delay in implementing PSOEAA is that states must set up a way to access the files. He says that the states would need to ensure that their electronic fingerprinting methods were compatible with the FBI’s system. Additionally, the 40 states that already have regulations in place for all potential security officers would need to screen criminal history results against their state lists of disqualifying offenses.

“For [states] to set up a separate infrastructure to clear every security officer who applies for employment, that’s immense, as you can imagine,” says Hill.

A third-party gateway or clearinghouse may be the solution to implementing PSOEAA, according to Hill and Ricci. Such a choice would allow an independent entity to perform all of the screening when state governments cannot or will not do it.

A bill has been introduced in the U.S. House of Representatives that would allow for the Attorney General (whose office is already charged with regulating the security and accuracy of the criminal history record information, or CHRI) to intercede in the screening by designating an entity to do it. That bill, H.R. 2703, introduced by Rep. Robert Andrews (D-NJ), was in committee as of press time. However, Ricci says NASCO does not support that bill because it also includes an extensive list of disqualifying offenses for potential personnel, such as lifetime disqualification for receipt of stolen property, among other crimes.

“Certainly there should be some disqualifiers in there, but we think this just goes too far,” says Ricci, who adds that it might be possible to deal with that issue by amending the current proposal.

At least one labor group agrees with NASCO. The bill is “outrageous,” says Maurice Emsellem, policy director at the National Employment Law Project (NELP). He says, “You can’t create a system that denies such large numbers of people access to entry level employment.”

Wackenhut supports NASCO’s perspective. Hill notes, however, that the disqualifiers mentioned in the bill are all types of incidents that a candidate would be disqualified for during a typical Wackenhut screening.

Hill raises concerns with the wording of the proposed legislation dealing with another issue. The bill currently provides that if the states cannot fulfill the requests under PSOEAA, then the U.S. Attorney General would be allowed to do it. But Hill wants the wording to be more specific, possibly charging the Attorney General with the task outright and laying out resources for ensuring that it can be funded.

“If it’s going to be the Attorney General, let the Attorney General do it. Let him build an infrastructure to handle those requests,” says Hill. He adds that one of the reasons the original law has had limited impact is “because that administrative process was not set forth.”

Rep. Andrews’ chief of staff, William J. Caruso, told Security Management that although the office is optimistic that the bill will be passed, they are also working with NASCO and “would certainly consider a revised version [of the bill] if necessary.”

There are lingering concerns among labor advocates about this push for more access to FBI files. Emsellem worries that the FBI files are incomplete or inaccurate.

The Andrews bill does include a section about redress if a record is believed to be inaccurate or incomplete but critics aren’t sure they go far enough.

In addition, Emsellem would like certain other protections to be included to ensure that a prior criminal record doesn't doom a person to forever being disadvantaged in the search for a job. He cites Illinois as a state that has exemplary protections, such as requiring consideration of evidence of rehabilitation and deeming individuals rehabilitated when they’ve completed their probation or parole term. Additional protections are in place for crimes that are more than ten years old to ensure that these are not dredged up.

Emsellem also says that regulations regarding access to CHRI should not just target the private security industry, but all employers who access the FBI records.