New Criminal Public Records Availability Policy implemented in Indiana Courthouses

Recently the State of Indiana made changes restricting the public availability of certain types of criminal records. These changes will narrow the scope of criminal records that can be researched at the courthouse, so end users of criminal records research in Indiana should expect fewer records reported for applicants in that state.

The new law prohibits Indiana employers from conducting certain pre-employment inquiries, suppresses public access to prohibited criminal history information and modifies what Consumer Reporting Agencies (CRAs) can report on a background report.

Effective July 1, 2012, HB 1033 allows Indiana residents with restricted or sealed criminal records to state legally on an “application for employment or any other document” that they have not been adjudicated, arrested, or convicted of an offense that has been restricted and prohibits employers from asking an employee, contract employee, or applicant about sealed and restricted criminal records. HB 1033 also prohibits courts from disclosing information pertaining to alleged infractions where the individual:

  • Is not prosecuted or if the action against the person is dismissed
  • Is adjudged not to have committed the infraction
  • Is adjudged to have committed the infraction and the adjudication is subsequently vacated; or
  • Was convicted of the infraction and satisfied any judgment attendant to the infraction conviction more than five years ago.

Effective July 1, 2013, the law also will restrict information that “criminal history providers” (which include CRAs) can report to others. Under the law, criminal history providers that obtain criminal history information from the state may only provide information pertaining to criminal convictions. The law explicitly states that criminal history providers such as CRAs will no longer be permitted to provide the following information in background reports:

  • an infraction, an arrest or a charge that did not result in a conviction;
  • a record that has been expunged;
  • a record indicating a conviction of a Class D felony if the Class D felony conviction has been entered as or converted to a Class A misdemeanor conviction; and
  • a record that the criminal history provider knows is inaccurate.

Moreover, CRAs that obtain state criminal records information may not include the information in an assembled report unless the information is updated to reflect changes to the official record occurring 60 days or more before the date the criminal history report is delivered.

Finally, the law allows the court to convert a charge of a Class D felony to a Class A misdemeanor either during sentencing or after the individual satisfies the requirements of the Class D felony upon request of the individual. This only applies to certain Class D felonies as outlined in the statute. Beginning July 1, 2013, Class D felonies that have been converted to Class A misdemeanors will no longer be allowed to be reported.
Implications for Employers

The apparent intent of the legislation is to limit the scope of Indiana criminal record information that can be made available to employers and other entities that utilize the information. It is important for employers to be aware that background reports provided to them may not reflect the complete Indiana criminal history for an applicant or employee because the law will preclude the reporting of certain criminal history information. Of equal importance, Indiana employers should ensure that they do not ask applicants or employees whether they have sealed or restricted criminal records on an employment application or otherwise.

The full text of Indiana House Bill No. 1033 is available at:
http://www.in.gov/legislative/bills/2012/HB/HB1033.1.html

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