Free speech experts raise concerns about allowing suits over reporting on sealed records
Some free speech lawyers are concerned about a recommendation by the governor’s criminal justice reform council to let people sue consumer reporting agencies that report items in the plaintiffs’ criminal histories that have been sealed by the courts.
Hollie Manheimer of the Georgia First Amendment Foundation says she sympathizes with the goal to help rehabilitated ex-offenders find jobs and housing, making them more productive members of society. But she said giving a private cause of action to people whose criminal histories are reported accurately raises significant concerns about free speech.
She said the council’s convict re-entry goals shouldn’t come at the expense of the public’s right to know what happens to people who enter the state’s criminal justice system.
“The First Amendment does not allow the government to erase history, including arrest histories,” Manheimer said. “No organization—whether it’s a media organization or a consumer reporting agency—should be punished for publishing accurate information about the fact that our government saw fit to place a person under arrest.
“If the government is uncomfortable with the number of arrests it is carrying out, it should take a hard look at whether it’s exercising its arrest powers in an appropriate way,” she added. “It should not try to punish organizations for providing accurate information to the public.”
The proposal came in a 41-page report on ex-convict re-entry issued recently by the council—made up of judges, lawmakers, lawyers and law enforcement officers appointed by the governor. As with the council’s previous criminal justice reform recommendations, those in the report may be adopted by legislators and dropped into bills this session.
The council justified the recommendations on the state’s growing corrections costs and its unwavering recidivism rate, saying someone released from state custody has a 30 percent risk of reoffending within three years.
Bills based on council recommendations passed in 2012 and 2013 reduced penalties for some nonviolent crimes, created a statewide system of accountability courts and rerouted youth offenders from detention centers to community-based rehabilitation and treatment programs.
Other bills passed allowed courts to seal or restrict public access to some criminal records, including charges that never resulted in prosecution or conviction. Under Georgia law, some first offenders may also be eligible for records restriction.
Records restrictions are meant to give innocent or rehabilitated people a clean slate and to eliminate obstacles in finding jobs, the council said.
“The council appreciates the need to balance an employer’s right to know about the background of potential employees against the potential employee’s right to receive the appropriate protection already accorded to them by state law,” the council said in its recent report.
The recommendation regarding records restrictions states that the Legislature should develop procedures through which an individual could “demand that a consumer reporting agency correct any report containing any aspect of that person’s criminal history which is inaccurate or does not appropriately restrict information as required by existing state law.” The council also recommended creating a private cause of action “with treble damages against consumer reporting agencies if said reports are published by the agency and do not reflect the demanded corrections. This council further recommends that the General Assembly clarify the venue provisions for this new cause of action, as a long-arm statute may be appropriate.”