September 20th, 2016 | Sterling

Police Information and “Getting to the Clear” – From Discovery to Disclosure

Getting to the Clear-From Discovery to Disclosure

Over ninety percent of Canadian applicants screened do not have a criminal conviction in the National Repository of criminal records. The same applies when searches of Local Police Information (LPI) are conducted. Sometimes upon review by the employer or placement agency, convictions discovered nationally or locally may ultimately be determined not to be relevant. Still, screening for criminality is increasingly regarded as an essential component of determining suitability once the decision is made to offer employment or placement. Really, it’s about uncovering the existence of the information so that it can be weighed appropriately in the context of a hiring or placement decision. Doing so is one way that employers and program administrators meet their requirements around due diligence while avoiding undue marginalization of otherwise suitable candidates.

This month’s blog focuses on two distinct aspects of the police information screening process – discovery and disclosure – and how they are demarcated. Police information is often valuable and can be relevant; however, it is normally collected, retained and accessed only for the following specific purposes:

  • Law Enforcement,
  • Criminal Justice and
  • Public Safety*

Note that background screening isn’t stipulated. So what does that mean where screening is concerned? To illustrate how police information is organized and controlled, I’ll use the RCMP’s Operational Case Records as an example.

The description for this large bank of personal information states that it is collected “… for the administration or enforcement of the law and in the detection, prevention, or suppression of crime generally.

If you’ve taken a moment to read the description, you’ll see it also includes the various purposes for which the information may be used. When a use – such as background screening – is not explicitly stated, it is deemed to be inconsistent with those purposes. This is when privacy principles take effect and the informed consent of the individual is a requirement – both for accessing the information and also for its disclosure and use. In this way, the individual retains control over his/her personal information and any re-purposing of it.

Of the three purposes of police information mentioned earlier, I’ve highlighted Public Safety because it links what policing does with what background screening aims to do. The background screening industry doesn’t have a law enforcement or criminal justice mandate, yet it plays an important role in contributing to public safety. Public safety is reflected in the policing mandate but, as the police will attest, it is also a broadly shared societal responsibility. Organizations are sharing in this responsibility when they decide to screen.

I have often been asked why it is not possible for Sterling Talent Solutions’ processes to provide disclosure regarding records that our police partners discover when screening applicants. I have similarly encountered misconceptions on the part of some that we disclose police information when we do not. To clarify, at the national level, there is federal policy that enables an applicant to declare any convictions in the National Repository. Our police partners are then able to respond to applicant declarations with a standardized confirmation when convictions are declared accurately. Where local police information is concerned however, no such process exists and this is appropriate since LPI is different. Here’s why:

Local Police Information is kept in police Records Management Systems (RMS) and consistent with the purposes mentioned, it is information that is collected in the course of police investigation. Often, this personal information is obtained involuntarily on the basis of law enforcement agencies’ legal authority; particularly information that relates to charges or convictions. RMS information can be incomplete, out of date, subjective, unproven in court, intelligence-based or highly sensitive. RMS information is not on the public record. When re-purposed for background screening, it is therefore essential that any LPI discovered be subject to review and disclosure, either directly by the police service that possesses the record, or by a process of cooperation among police services.

Stated plainly – disclosure of any aspect of police records management system information is not within the purview of the background screening industry, because the information was collected for policing purposes, not background screening.

When Sterling Talent Solutions refers applicants to their local police, it is with good reason but it does not necessarily follow that there will be something that the client organization will ultimately be entitled to see. A police decision needs to be made about the relevance of the information and whether it should be disclosed in the context of a hiring decision. In some jurisdictions, there are guidelines or even legislation governing police processes on matters of disclosure. Our clients should not take action based on an applicant referral since the police may decide that a clear or “no record to disclose” determination is the appropriate outcome.

There is language used by the RCMP’s National Repository of criminal records that I believe is valuable to underscore the principle we are talking about. In the case of a “clear” or “no record” determination, the RCMP’s result product states:

“could not be associated with any existing Criminal Record of conviction which may be disclosed in accordance with federal laws.”

Note that the RCMP is not stating it does not have records associated to the applicant – rather, that there is nothing that can lawfully be disclosed. So it is with local police information; just because a record associated to an applicant has been discovered does not make it appropriate to disclose. Making this determination is a police function.

An added and often undervalued benefit of the Sterling Talent Solutions process is that it ensures our clients are not exposed to types of information that are universally inappropriate for consideration in a hiring decision, such as non-criminal mental health interventions. Reaching determinations about police information in a compliant, consistent, secure and efficient manner is just one area where Sterling Talent Solutions can help your organization to “get to the Clear.”

Next month, I will discuss situations where clients may be aware of information about an applicant that cannot be substantiated through searches of police information data banks – what is happening and why. Find out more information about criminal background checks by downloading our eBook today!

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.