Page images


granted to other law enforcement agencies only upon approval at a high administrative level within the agency that holds the investigative file.113 I do not mean simply that the officially stated policy of the various law enforcement agencies should be that such files are confidential ; I mean that a range of disciplinary sanctions should be established and enforced within each agency, so that persons in a position to divulge information improperly will know that they run a serious risk in doing so. The objective here is a credible deterrent, a substantial increase in the cost of access. The maximum administrative penalty for wrongful disclosure should therefore be dismissal. Furthermore, the victim of such a disclosure should be permited to sue for a statutory penalty-say, $1,000—in addition to compensatory damages for any actual harm he can demonstrate.?

The foregoing suggestions require no change in present stated policy and only a minor change in enforcement practice. The suggestion that follows, on the other hand, calls for a modification of stated policy to bring it in line with current practice. It is that access to such routine information as that contained on "make sheets" be allowed freely to outside investigators, public and private alike. Probably access should be restricted to licensed private investigators to keep idle snooping at a minimum.116 But credit and business investigators, private investigators in domestic relations cases, and the like should be allowed in law what they now have in fact. The corroding, demoralizing occupation of informationpeddling within police departments would thus be struck a near-mortal blow.

This proposal is seriously made in awareness of the terrible consequences of the publication of arrest records to prospective employers and others who deal with the subjects of such files. Thousands upon thousands of injustices are surely done each year because isolated instances of youthful misconduct permanently brand otherwise useful and honorable citizens and because “police records” are hung about the necks of innocent victims of mistaken identity and other inevitable errors in so human an institution as police work. A concern for those victims naturally produces calls for corrective legislation.116 But the predictive assumption that legislation forbidding disclosure of arrest records would achieve its goal is an optimistic one and one that I do not share. Access to "make sheets" within the agencies has not been severely limited, and the offense of disclosure is so widely practiced now that it must seem to many policemen to be a pure case of malum prohibitum. The same cannot be said of investigative files; access practices and attitudes are different, and a firmly enforced limitation on access would be both practical and acceptable. In fact, the principal advantage of formally recognizing a right of access by outside investigators to routine information, such as arrest records, would be that a clear separation might be made in the minds of agency personnel between the information in such records and that in investigative files. At present, both kinds of information are theoretically confidential; one disclosure is theoretically as improper as another. Ironically, the most likely result of the proposed change would be a net increase in the protection of the confidentiality of personal data in the hands of law enforcement agencies.

118 Even this suggestion has its difficulties. We can hardly expect the various police departments around the country to refuse to share investigative leads among themselves. Yet there are serious possibilities of abuse. One recent example was the rather interesting use made of an old criminal file of Mrs. Viola Liuzzo, the victim of a murder charged to certain members of the Ku Klux Klan (one of whom was acquitted by a Lowndes County, Alabama, jury). Mrs. Liuzzo's record (her “make sheet,” not an investigative file) somehow passed from the Detroit police to the Warren, Michigan, police, to Sheriff Clark of Dallas County, Alabama, and even on to Imperial Wizard Shelton of the KKK. See N.Y. Times, May 16, 1965, p. 51, col. 1.

The point is that some policemen, like others in all occupations, can be expected to make improper use of information in police files. There are organizations of policemen which are highly politically oriented. One example in my area is the Fire and Police Research Association of Los Angeles, Inc. (FI-PO), which engages in right-wing, political activity. including, the publication of The FI-PO News, a newsletter which consists in substantial part of lists of names of persons who have been identified by someone as communists or communist sympathizers, often coupled indiscriminately with the names of persons who support the establishment of civilian police review boards, and so on. The leaders of FI-PO are men in responsible positions in the police and fire departments of Los Angeles. I am morally certain that FI-PO has access to any police file in the city. The Liuzzo incident suggests that such organizations may have ready access to some police records all over the country. But any system that required proof of legitimate need before investigative information could be exchanged with other departments would be costly in both money and investigative efficiency; it is doubtful that our various city councils would (or should) be willing to pay the price.

114 Some decisions imposing tort liability for violation by public officials of nondisclosure statutes are collected in Annot., Constitutionality, construction, and effect of statute or regulation relating specifically to divulgence of information acquired by public officers or employees, 165 A.L.R. 1302, 1304-05 (1946).

115 Such a limitation would roughly parallel the various interests protected by the quali. fied privileges in the law of defamation. 118°E.g., Comment, Guilt by Record, 1 CALIF. WESTERN L. REV, 126 (1965).

The same separation of the two kinds of personal information in police files will materially aid in improving the files' accuracy. The subject of the file should have access to his own “make sheet”-at intervals of six months or a year, in order to avoid the cost involved in frequent requests. The “mak'e sheets” are already transmitted as a matter of course to other agencies; they are duplicated for that purpose, and it will not cost much to make the subject a copy and to give him a copy on request. The principal cost will be that of interrogating the file; soon, however, that task can be assigned to automated means. In fact, “make sheets" and similar routine information will be the first criminal data to be stored on computer tapes."7 The subject himself is the best assistant the police agency can have in clearing up cases of mistaken identity or other omissions such as acquittals or other dispositions favorable to him.118

It is not suggested that the subject should have access to his investigative file beyond that permitted by the ordinary rules of criminal discovery, which apply only when the subject is a defendant in a criminal proceeding. It is true that some inaccuracies will be cleared up by the subject, but the risk of compromising investigative leads and the identity of useful informers outweighs the subject's interest in statements in the file made by witnesses who testify against him, as the Jencks decision held 11 and as Congress soon thereafter provided in the Jencks Act. 120 Conversely, when the government seeks to use a statement in the file against the subject in an administrative proceeding, without permitting him to know the contents of the statement or the identity of its author, the subject should have access to the full statement and an opportunity to cross-examine the witness. In Greene v. McElroy 19 the Supreme Court rested such a right of confrontation on non-constitutional grounds, interpreting the existing federal loyalty program legislation and regulations. The principles of the Jencks and Greene cases are worthy of general application, but they do not support a rule of a general right of access by the subject to law enforcement investigative files. Of course, access by the subject to his own "make sheet” does not involve the same risks of compromise to the agency's investigative functions.

In The Naked Society, the most recent entry in Vance Packard's series of glossy exposés, we are told that it is important to protect privacy in order to protect “the right to hope for tolerant forgiveness or overlooking of past foolishnesses, errors, humiliations, or minor sins—in short, the Christian notion of the possibility of redemption” and “the right to make a fresh start.” 122 Substantial agree ment with this point of view has produced legislation in California which, without authorizing destruction of records, approaches the ultimate in legislative restrictions on access to personal data. Since 1909, the state has adopted an of

17 See HEARLE & MASON, op. cit. supra note 5, at 120–22. It was the storage of this kind of routine information in a computer that led to the recent nationally-publicized arrest of a New York City lady after sixteen months of neglect of a traffic summons. She had been identified by her license number, called out by a policeman over the radio to a computer center which processed the number in seconds. See The Computer & Mrs. Placente, Time Magazine, Sept. 3. 1965, p. 72, col. 1. During the same month, IBM advertised the use of its computers to “help keep track of pawnshop records, gun licenses, stolen property reports, violations and arrests," as well as "to find at once a set of matching fingerprints from files of tens of thousands." The Atlantic, Sept. 1965, p. 61.

118 In California, where all arrrests are reported to the state's Bureau of Criminal Identification and Investigation, the law also requires a follow-up report of each release without charge, and each disposition by a criminal court. CAL. PEN. CODE $$ 11000–15.

119 Jencks v. United States, 353 U.S. 657 (1957).

129 18 U.S.C. 3500 (1958). It is mystifying that Fred J. Cook should describe this legislation as a "defense-crippling law," secured by Director Hoover to "nullify the Court's Jencks decision." COOK, op. cit. supra note 83, at 385, 389 (1965). Mr. Cook's concern is that the FBI agent may not have the informer sign or "adopt” his statement when it is reduced to writing, so that the act will not require its production. But such an unsigned statement might still be ordered to be produced by the trial judge, and indeed such an order may be compelled by the Constitution. See the concurring opinion of Mr. Justice Brennan, joined by the Chief Justice and Justices Black and Douglas, in Palermo v. United States, 360 U.S. 343, 361-62 (1959). This decision, upholding the constitutionality of the Jencks Act, is described by Mr. Cook as one in which “the Court, in effect, reversed itself, .. ." Perhaps Mr. Cook, like those he criticizes, has taken Director Hoover's reaction to the Jencks decision too seriously. Mr. Justice Brennan's concurring opinion in Polermo seems certain to prevail in the future. 121 360 U.S. 474 (1959), decided on the same day as the Palermo case.

122 PACKARD, op. cit. supra note 91, at 12. Connoisseurs of the law reviews are directed to Professor Joseph Bishop's delightful review of this book in 74 YALE L.J. 193 (1964).



ficial posture of forgiveness for defendants who have been convicted of crime but who have been placed on probation and have successfully completed the period thereof. Such a person may apply to the court that convicted him for relief, which the court “shall” grant: he may withdraw his plea of guilty, or the court will set aside a verdict of guilty ; in either case, the court will dismiss the criminal charge. The d'efendant "shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.”:123 That statute, considered alone, forgives without forgetting. The defendant's fresh start is significant but hardly complete. His forgiven conviction may be pleaded and proved as a prior conviction ; 124 it may be made the basis for deportation, or the suspension or revocation of a driver's license, or a professional disciplinary proceeding. 126 Furthermore, the record of conviction is a public record, open to inspection along with other court records and thus available to any investigator on behalf of a prospective employer, or lender, or participant in a business transaction. In short, the earlier legislation did not "expunge” the conviction.127

To make the forgiveness more effective in some cases, the California legislature has recently enacted a new remedy, applicable only to misdemeanors or juvenile offenses committed by minors but extending to arrest and custody records as well as records of conviction or commitment to the Youth Authority. If the offense is the minor's only one,12 he may, in the case of a criminal proceeding," "petition the court for an order sealing the record of conviction and other official records in the case, including records of arrests resulting in the criminal proceeding, and including records relating to other offenses charged in the accusatory pleading, whether defendant was acquitted or charges were dismissed.

The court “may” grant the relief sought. If it does, “Thereafter such conviction, arrest, or other proceeding shall be deemed not to have occurred, and the petitioner may answer accordingly any question relating to their occurrence.” 131

Thus is the slate wiped nearly clean-nearly but not entirely. It is true that notices of the sealing of records are sent to the agencies that have previously received notice of the arrest, conviction, or juvenile proceeding.182 It is true also that the custodians of such derivative records should answer to inquiry, "We have no record on the named individual.” 133 But the California legislature cannot authoritatively tell the FBI or the Nevada police to seal their records. And between the time when an arrest or conviction takes place and the time when the records are sealed, many a private investigator will have had the chance to make his own notations, which can then be passed on and on. Indeed, the very existence of this new remedy will create pressure on private investigative agencies to make records immediately after a minor's conviction, taking advantage of the services of court reporting firms. In the words of Mr. Terry L. Baum, Deputy Legislative Counsel of California, "It seems that when the Moving Finger writes these days, a dozen Xerox copies likely are made." 134 In a completely automated world, in which all personal data files were unified in one electronic data bank, an erasure might be made effective. Until that unhappy day arrives, the erasure attempted by California is most unlikely to work.

" 130

123 CAL. PEN. CODE $ 1203.4. 124 Ibid. 125 Garcia-Gonzales v. Immigration & Nat. Serv., 344 F.2d 804 (9th Cir.), cert. denied, 382. U.S. 840 (1965); Kelly v. Immigration & Nat. Serv., 349 F.2d 473 (9th Cir.), cert. denied, 382. U.S. 932' (1965). Both decisions are reluctantly supported in Comment, The Futile Forgiveness: Basing Deportation on an Expunged Narcotics Conviction, 114 U. PA. L. REV. 372 (1966), with a call for congressional revision of the governing law.

128 Meyer v. Medical Bd., 34 Cal. 2d 62, 206 P.2d 1085 (1949).

127 See Baum, Wiping Out a Criminal or Juvenile Record , 40 CALIF. S.B.J. 816, 819 (1965) ; Booth, The Expungement Myth, 38 L.A.B. BULL. 161 (1963).

128 The statute denies the record-sealing relief to "a person convicted of more than one offense.” Baum, supra note 127, at 823, persuasively argues that it is logical to interpret the language to refer not only to other convictions in the same proceeding but also to previous convictions.

129 The parallel provision relating to juvenile records, enacted before the quoted provision concerning criminal convictions, is CAL. WELFARE & INSTITUTIONS CODE $ 781.

130 CAL. PEN. CODE § 1203-45. 131 Ibid.

132 CAL. PEN. CODE $$ 11105.5, 11116. The court records themselves are to be “sealed”closed to inspection, but are not to be destroyed. 41 OPS. ATT'Y GEN. CAL. 102 (1963).

133 40 Ops. Art'Y GEN. CAL. 50 (1962); 41 id. 102 (1963). 134 Baum, supra note 127, at 824.

Suppose, however, that it were effective. Has the California legislature chosen the right remedy to protect the youthful offender? The new legislation is no doubt constitutional, by analogy to a great many decisions upholding the validity of restrictions on disclosure of information in the hands of public officials.135 So long as suppression is not made of information closely related to public affairs, no constitutional challenge to this record-sealing legislation is likely to succeed. But much is constitutional that is not wise. Even a benevolent falsification of history should be undertaken only for the most compelling reasons. Perhaps no amount of explaining will convince a prospective employer that a young man has been rehabilitated. Still it is highly questionable whether the state should deny the employer the information upon which to make his own decision.

If there were no alternative means for avoiding the undesirable result of a permanent disqualification for certain kinds of employment, or other harm to the youthful offender, the solution chosen by the California legislature would be more acceptable. There are, however, such alternatives. A refusal to employ that is based on a conviction for a misdemeanor committed before the applicant reached twenty-one might be made an unfair employment practice. If the concern is that enforcement of such a rule would be difficult, employers might even be forbidden to ask whether applicants were so convicted. The latter alternative also involves some impairment of the constitutional interests in a free flow of information, but it has two important advantages over the California statute: First, it is less of a limitation on access to information, because it is limited to employers' inquiries. Second, even if the legislature were to make a list of several situations in which such an inquiry would be forbidden, the making of that list would require the legislature to give specific consideration to each claimed need for restricting the flow of information. The California law is not so limited, nor has it been drafted with specific evils in mind. The effect of the law is to put the information in a box, where no one can reach it—unless, of course, a credit investigator has picked up the news of the conviction before the record was sealed, in which case anyone who makes a serious inquiry will know about it. The statute is at once too broad a restriction on the exchange of information and too narrow in scope to be effective. B. Consumer credit investigation files

The credit manager who approves an application for retail credit is gambling on the future; in betting the amount of the loan against the possibility of repayment with interest, he necessarily makes a complex prediction about the prospective purchaser. He wants the prediction to be an informed one--informed, that is, by experience, both of the lender and of the borrower. The relevant information about the borrower has been reduced, in the jargon of credit men, to the “Three C's": Capital (the borrower's net worth), Capacity (his ability to earn in the future), and Character (principally his past debt-paying record, but the use of such a morally evocative term implies that other considerations are also thought relevant).12

Some retailers run their own credit investigations; most, however, make use of the services of the more than 2,000 independent credit bureaus which are members of a trade association called the Associated Credit Bureaus of America, Inc. (ACBA).187 In 1961, Hillel Black wrote of the ACBA that its “credit bureaus alone employ an army of seventeen thousand who furnish nearly sixty-seven million oral and written credit reports a year. ... [T]he credit records of the Association's members number seventy million. Since many records contain the personal and financial background of both husband and wife, the number of histories in the credit bureau's [sic] files of the United States total one hundred and ten million. . . If your name is not in the records of at least one credit bureau, it doesn't mean that you don't rate. What it does mean is that you are either under twenty-one or dead." 138

The number of files and reports increases with the population, for almost everyone buys something on credit.139 The typical file contains the basic informa


135 See Annot., supra note 114. But see text accompanying note 28 supra; Franklin, supra note 34.

187 There are, in addition, other bureaus which are not members of the association.
138 BLACK, op. cit. supra note 136, at 36–37.

139 Even teenagers. See BLACK, op. cit. supra note 136, ch. 7, for a depressing explanation of current techniques for introducing children to consumer credit as “a way of life." 140 Id. at 40-41.

99 142

tion that a credit manager wants : "name, age, residence, marriage, divorce, inheritance, earnings, criminal record, bank account, date debts assumed and paid, slow pay, fast pay, no pay.'

» 140 The information in the file is routinely available to bureau subscribers, and to law enforcement officers, including revenue investigators. It is also available, not routinely but just as certainly, to anyone else who can pay the modest going rate.14 Thus credit bureau files are the basis

many another investig ve file, or, in Myron Brenton's phrase, "credit builds the goldfish bowl.'

The fact that access to credit reports is virtually unlimited makes the accuracy of the reporting particularly important. Practices vary from one bureau to another, but generally the investigator enters his own evaluations, along with those of the references supplied by the subject, and not simply a narrowly factual account of his payment history. I have a copy of a 1962 credit report (with the name obliterated, speaking of privacy invasions) from Columbus, Ohio. It is a standard form which purports to be supplied by the ACBA. Under the heading "Character,” these questions appear:

"7. Is applicant well regarded as to character, habits and morals?
“8. Did you learn of any domestic difficulties?
“9. Does he have a reputation of living within his income?"

The reports from previous credit sellers are entered in terms such as these : "satisfactory," "a little slow," "paid slow." Practices are not uniform among sellers, and "slow" does not have a universally accepted meaning.

Old derogatory entries may remain in the subject's file long after their causes are thought to have been “cleared up,” for example, by payment or by successful termination of a lawsuit over a disputed claim. But the practice of the largest credit bureau (that of New York) is to eliminate old reports on a regular basis after five or ten years.

143 Once a clear inaccuracy is called to the attention of a bureau, it is corrected; the bureaus earn their living by their reputation for accurate reporting 144 If there is a disputed claim, however, the credit bureau is not likely to remove the retailer's “no pay” evaluation even though the subject of the file has returned the merchandise on the ground that it was defective. The bureau does not want to put itself in the position of a tribunal which litigates such questions; if it were to do so, the cost of credit reporting-and thus the cost of merchandise to the consumer 5_would be somewhat increased.

The applicant for credit knows that the credit seller will make some inquiry of the references he has supplied ; typically, those references are the applicant's bank, his employer, and firms that have granted him credit in the past. The applicant may not know that the bank will go beyond verifying that he has account. giving the inquiring retailer or credit bureau a rough estimate of the average balance.146 The consent that the applicant gives for access to the information is thus imperfect, and that imperfection is compounded by his lack of awareness of the ease with which others wholly unrelated to the credit transaction may have access to information in the hands of the credit bureau.



141 "I tried to purchase (credit] reports from five suburban credit bureaus east of the Rocky Mountains, in each case explaining that I contemplated going into partnership with someone but wanted to check up on him beforehand. Only two bureaus refused to sell me a report." BRENTON, op. cit. supra note 91, at 36.

142 Id. at 25-43.
143 BLACK, op. cit. supra note 136, at 41.

144 While it is true that credit bureaus' form contracts include disclaimers of liability to their customers for inaccurate reporting (see PACKARD, op. cit. supra note 91, at 172 ; AM. JUR. LEGAL FORMS, Mercantile Agencies 9:41), most bureaus are zealous to avoid errors. Cf. Green, The Duty to Give Accurate Information, 12 U.C.L.A.L. Rev. 464 (1965).

145 Not just the credit consumer but all consumers. In most retailing operations, cash customers pay a substantial part of the cost of credit selling.

146 Perhaps in Idaho this practice has been curtailed by the remarkable decision in Peterson v. Idaho First Nat'l Bank, 83 Idaho 578, 582, 367 P. 20 284, 286 (1961), annotated in 92 A.L.R. 2d 891 (1963). The Idaho court held that the plaintiff had stated a cause of action by alleging that the bank had disclosed ("with malice and without authorization of the plaintiff") to the plaintiff-depositor's employer, the fact that the plaintiff had written “a large number" of insufficient-funds checks. The employer had, a few months previously. asked the bank to report whenever an employee "might be doing anything that might bring discredit to the company.". The cause of action was rested on a theory of breach of an implied contract to keep the depositor's bank-transaction information confidential; tie court rejected an invasion of privacy theory because the information had not been made "public." Id. at 582, 367 P. 2d at 386.

147 Including "slow pay' reports from previous creditors whose names he did not give as references.

« PreviousContinue »