PUBLIC RECORDS: A Goldmine…or a landmine?

On June 15, 2011, in Blog, by sieditor

Over the years, our firm has conducted countless background checks for a wide variety of investigations, ranging from suspected insurance fraud, corporate malfeasance, civil litigation, domestic matters, to name only a few.  There have been many examples where the information proved to be invaluable to the resolution of the case.  However, there have also been situations where the information could have been misinterpreted, inaccurate, and/or misapplied if it had not been for the diligent search and verification of the data.

Therefore, it is important to understand what information falls within the purview of public records, their level of accuracy, proper application, reliability of the data, and necessary verification of the information obtained.  Let’s start with the basic definition of public records in California.

California Public Records Act

The Public Records Act is part of Govt. Code 6250-6276.48, and can be found on the internet under a number of websites (e.g. http://parks.ca.gov/?page_id=1084).  In a nutshell, this act is designed to give the public access to information in the possession of public agencies.  Every person has the right to inspect ANY public record that falls within the Public Record Act.  This includes “all communication related to public business ‘regardless of physical form or characteristics, including any writing, picture, sound, or symbol’…”  This definition allows for access to a pretty comprehensive array of public records including, but not limited to, court records, real property records, vital records, government records, public hearing records, to name only a few.

So, are any records “exempt” from disclosure?  The answer is “yes.” The Act does exempt certain records from disclosure.  It does not mean that the exempt record is not a public record, but that an agency may withhold a public record, “but can allow greater access if it wishes.”  For example, police incident reports, rap sheets, and arrest records are exempt under Penal Code 11075, 11105, and 11105.1, but the information in the “police blotter” (time and circumstances of call to police; name and details of arrests, warrants, charges, hearing dates, etc.) must be disclosed UNLESS disclosure would endanger an investigation or the life of an investigator (this is probably the most commonly used reason for non-disclosure of this information).  Also, law enforcement “investigative files” may be withheld, even after an investigation is over.

Other records that may be withheld include, but is not limited to, 1) Home addresses in DMV, voter registration, gun license, public housing, local agency utility and public employee records, as well as addresses of CERTAIN crime victims (e.g. rape, minors, etc.);  2) Attorney-client discussions;  3) Appointment calendars and applications, phone records, and other records…of government decision makers…if the public interest is better

served by not disclosing the records (guess who gets to make that decision);  3) Records concerning agency litigation, but only until the claim is resolved or settled;  4) Personnel,

medical and similar files…if disclosure would reveal intimate private details;5) Other.

So that’s basically the law in California.  But is that the reality?  Not quite.  There may be many situations where the public agency will withhold “public records” without any clear explanation, and without seemingly complying with the law.  What then?  There are specific instructions on how to submit a request for records that may have been withheld, and I would refer you back to the California Public Records Act website for details, or you can call or email our office, and we will email the Act, along with a “request” letter.  In short, it may take some aggressive action on your part, along with lots of patience and perseverance.  The possible good news is that the agency only has ten (10) days to decide if copies of the records will be provided (an additional 14 days if the records are voluminous).

Public Record Databases

Many of us have probably accessed, or reviewed the results of, public record database sources.  The availability of pubic record databases is astounding.  Anyone with a computer can obtain access to these sources for little or no money. In fact, many of the public agencies now allow access to this information on their agency website.  Obviously, the “bad guys” also have equal access, as they are also considered the “public.”   There are also “information brokers” who peddle BOTH public AND private data/information over the internet.  Unfortunately, this has resulted in an avalanche of state and federal legislation in recent years to prohibit the release of certain “public” records, or other records commonly used by investigators in their “legal” investigations.

Accuracy and Reliability

It is important to understand the accuracy and reliability of the information obtained through a public record database source.  Everyone has heard the expression, “garbage in, garbage out.”  All public record databases are compiled by humans hired by public agencies (probably at a lower pay rate) to input the information into a computer.  Any chance the information could be inaccurate (misspellings, misreading, miss everything, etc.)?  It happens. Humans make mistakes.  If you noticed, all public record database companies issue a disclaimer on all information provided (as do many investigative companies who supply the data to their clients).  In short, it is important to verify the accuracy of the data, as diligently as possible, when conducting an investigation.

It is even MORE important to understand the relevancy of the information provided by a public record database source.  For example, let’s say that you requested a civil index search in Los Angeles County on a subject named, Jose Martinez.  Guess what!  You better have a lot of paper in your printer.  You will find hundreds of cases with that common name match, with no clue where to begin.  Therefore, the relevancy of that search is almost nonexistent.  However, all is not lost, IF you have a good investigator who knows public records, AND a big enough case to warrant spending the money to uncover any civil cases involving YOUR Jose Martinez.  For example, let’s start by identifying the subject’s middle name OR initial through existing information or other database sources.  Let’s say that YOUR subject’s middle name is “Antonio”.  The civil index search may have identified ten (10) cases with that middle name, and fifty (50) with the middle initial, “A.”  Let’s say that your subject has resided in Van Nuys for the past ten (10) years.  It is more likely that any civil cases filed in the civil court branch encompassing Van Nuys would have a better probability of involving your subject than cases filed in Long Beach, as most civil cases are either filed in the jurisdiction where the subject resides, or where the incident/accident occurred.  Let’s say that you are able to identify two (2) cases indexed for Jose Antonio Martinez, and ten (10) cases indexed for Jose A. Martinez in the court

covering Van Nuys.  That’s where you need to look first.  Now you have narrowed your civil search down to one court location and twelve (12) civil cases, compared to hundreds.

Depending upon the magnitude of your case (high dollar exposure vs. low dollar

exposure), you may elect to have the twelve (12) civil files reviewed for possible connection with your subject, which could be quite time consuming and costly.  Or, you

may elect to move on to a criminal search, where there may be a higher probability of determining a positive match.  Why is that?  Unfortunately, civil records do NOT usually contain any of the most common identifiers (SSN, DOB, or CDL).  Instead, the file may only contain the subject’s last known/prior address (not frequently), signature (in many cases), or some other less common identifier (same attorney, wife’s name, etc.).

Therefore, it is possible that a number of cases reviewed may lack any known connection/identifier involving the subject.

However, in criminal indexes, the most common identifier is the birth date (DOB), not SSN (as many seem to believe).  All criminal cases contain the birth date of the defendant.  As a result, the indexes will frequently contain a DOB match with the subject DOB (IF provided with the correct DOB.  We will usually confirm the DOB with another source, such as a driving record search).  However, there may still be more than one Jose Martinez with the same DOB, so further verification is necessary by reviewing the criminal case(s) for other possible known identifiers (address, CDL, etc.).  This may not be necessary if you have indexed a less common name. Regardless, the index information may not necessarily be accurate, so further review of the file is still important to verify the index information (e.g. charges, disposition, etc.).

Proper Verification

Proper verification of the public record database information is most commonly done at the court or applicable agency level.  For example, a database search may not be up-to-date information.  Most database providers purchase the information from the applicable court or agency. Many times, the information is purchased periodically or when updated by the court/agency, which may vary by jurisdiction (e.g. Los Angeles County Superior court may provide updated index information more frequently than Kern County Superior court).  Therefore, it may be important to conduct an on-site index of the applicable court/agency records for up-to-date information.  This is most commonly referred to in investigative terms as the “thru” date.  In other words, the database index information may only be “thru” January 2011, whereas the subject may have been involved in a criminal or civil matter subsequent to that date.  This is particularly important when conducting a civil search on a subject to determine whether they filed a lawsuit prior to the “statute of limitation.”

Application of Information

The proper application of the public record information is the most essential part of public record searching and investigation.  There may be many instances in which the public record information is not relevant to the case, not cost effective, or not even admissible in court.  For example, you may obtain multiple municipal court criminal files on your subject, only to find out that certain misdemeanors are NOT admissible as evidence in a civil lawsuit.  Furthermore, the existence of a breach of contract lawsuit filed against your subject for non-payment of a loan may not necessarily be applicable to your case involving a minor personal injury accident (unless it relates to financial motive).  Also, a divorce file may not be relevant to many investigations, but may identify a potential witness (ex-wife) who may have reason to reveal the truth (“no greater wrath…”).  Therefore, it is important to separate the “wheat from the chaff” when conducting potentially expensive public record research/investigation.  Seasoned investigators should be able to recommend the best cases to review in these situations.

Conclusion

In summary, the use of public records as an element of your investigation depends on a number of factors, of which only a few are outlined above.  The value of the information will depend heavily upon the person accessing and reviewing the information.  The final analysis of the public record information, as it relates to your case, should rest in the hands of public record experts and seasoned investigators.

 

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