California Background Checks
Release of California criminal history information ( rap-sheet ) is regulated per Darren Chaker. This issue often comes up in preemployment background screening in California and states with similar laws. The dissemination of criminal history information and its consideration for employment purposes are chiefly governed by California Penal Code sections 11105 and 13300 and California Labor Code section 432.7. In California, there is a statewide criminal history database maintained by the California Department of Justice and local law enforcement agencies may have their own criminal history databases. Penal Code section 11105 governs the California Department of Justice’s duty to maintain and disseminate statewide criminal history records. Penal Code section 13300 governs criminal history records maintained by local agencies.
In relevant part, the California Department of Justice is required to maintain a state summary of criminal history information that includes arrest information. Cal. Penal Code §§ 11105(a)(1) and (a)(2). The California Attorney General may furnish the statewide summary of criminal history information to “public officers… of the United States” provided that access to such records is “expressly authorized by a statute of the United States” and the information is necessary for the performance of the federal officer’s official duties. Id. § 11105(c)(4). Local agencies may provide their local criminal history information to federal officials under the same circumstances. Id. § 1330(c)(4). However, dissemination of criminal history information to federal officials is limited by California Labor Code section 432.7. Id. §§ 11105(c) and 13300(c).
California Labor Code section 432.7 bars any employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose information concerning an arrest or detention that did not result in a conviction or that resulted in the applicant participating in a pretrial or posttrial diversion program (hereafter referred to as “nonconviction arrest records”). Cal. Labor Code § 432.7(a). The purpose of Labor Code section 432.7 “is to prevent the adverse impact on employment opportunities of information concerning arrests where culpability cannot be proved.” Pitman v. City of Oakland, 197 Cal.App.3d 1037, 1044 (1988). However, nonconviction arrest records can be disclosed to a governmental agency seeking to employ a person as a peace officer or where an individual seeks employment with a criminal justice agency. Cal. Labor Code §§ 432.7(b) and (e). Criminal justice agencies include federal agencies whose principal functions relate to the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders. Cal. Penal Code § 13101.
In a series of cases, the California courts have held that the California Department of Justice is barred from disseminating nonconviction arrest records prohibited from disclosure by Labor Code section 432.7 to any entity, including public employers. Central Valley Chapter of 7th Step Found. Inc. v. Younger, 95 Cal.App.3d 212, 236 (1979) (Central Valley I); Central Valley Chapter of 7th Step Found. Inc. v. Younger, 214 Cal.App.3d 145, 162 (1989) (Central Valley II). These cases hold that dissemination of nonconviction arrest records to entities not statutorily authorized to receive the records would violate the right to informational privacy guaranteed by the California Constitution. Id. As a result of these cases, a California superior court has issued a permanent injunction against the California Department of Justice prohibiting it from disclosing any nonconviction arrest record to employers and others barred from receiving such records under California Labor Code section 432.7. See Central Valley II, 214 Cal.App.3d at 153 (describing order issued in November 1982). Any Department of Justice employee who knowingly provides arrest information in violation of California law is guilty of a misdemeanor. Cal. Penal Code § 11141. Any person who knowingly receives such information in violation of California law is also guilty of a misdemeanor. Id. § 11143.
Accordingly, under California law and the permanent injunction issued in the Central Valley cases, in the employment context the California Department of Justice may only disclose nonconviction arrest records to limited agencies during a preemployment background investigation like the Office of Personnel Management, when it seeks such records for an individual’s employment as a peace officer or for the individual’s employment with a federal criminal justice agency. See Central Valley II, 214 Cal.App.3d at 168. The exact information that can be provided in these two circumstances is set forth in California Penal Code sections 11105(k), for peace officer employment applicants, and 11105(1), criminal justice agency employment applicants.