Procedures for Accessing Criminal Records

1. An owner may submit a request to a PHA (in the area where the property is located) to obtain the criminal records and/or State lifetime sex offender registration records of a member of a household for use in applicant screening, lease enforcement or eviction. Refer to Glossary for definition of Public Housing Agency (PHA).

2. Prior to performing or requesting a PHA to conduct a background check, an owner must do the following:

   • a. Obtain a signed consent form from the household member or applicant;

   • b. Provide the PHA with its selection criteria; and

   • c. Ensure that all criminal background checks are conducted consistently for every applicant or resident.

3. Upon request of the owner, the PHA must request the criminal conviction or State lifetime sex offender registration records from the state where the applicant resides and from other states where the applicant *or members of

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the applicant’s household have resided.* Owners and PHAs may rely on the applicant’s declaration on their application regarding their residences and any other information.

4. If the PHA receives criminal conviction and/or State lifetime sex offender registration records requested by the owner, the PHA must determine whether criminal action by a household member, as shown by such criminal conviction records, may be a basis for lease enforcement or eviction. The

PHA’s determination with regard to the screening and admission of applicants is based upon the criminal conviction record and the owner’s standards for prohibiting admission. All findings of a criminal background or sex offender status used to make determinations must be documented. If the owner’s selection criteria are not clear, the PHA should contact the owner for clarity. The PHA will make a determination based on the information provided by the owner. Any decisions based on “reasonable belief” or other “determination” of the owner should be documented with the reason for the belief or determination. This documentation should not be only of specific behavior, but that the behavior would (or does) interfere with the health, safety, or peaceful enjoyment of other residents.

5. The PHA must notify the owner whether it has received criminal conviction or State lifetime sex offender registration records for the household member and its determination as to whether such records may be a basis for lease enforcement or eviction. Except as provided below, a PHA must not disclose the household member’s criminal conviction or State lifetime sex offender registration records or the content of the records to the owner. A PHA may only make this disclosure if the following conditions are satisfied:

   • a. The PHA determines that the criminal activity by the household member, as shown by records received from a law enforcement agency, may be a basis for eviction from a unit; and

• b. The owner certifies in writing that the criminal conviction records will be used only for the purpose and only to the extent necessary to seek eviction in a judicial proceeding of a tenant, based on the criminal activity by the household member that is described in the criminal conviction records.

6. If a PHA receives criminal conviction records from a state or local agency showing that a household member has been convicted of a crime relevant to lease enforcement or eviction, the PHA must notify the household of the proposed action and must provide the subject of the record and the tenant a copy of the information and an opportunity to dispute the accuracy and relevance of the information. This opportunity must be provided before alease enforcement or eviction action is taken on the basis of the information.

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7. The owner may deny admission to an applicant using his/her standard for admission screening or may evict a tenant in accordance with his/her standard for termination of tenancy if the criminal background or State lifetime sex offender registration check indicates that the applicant or tenant provided false information. If the household is to be denied admission or evicted, the PHA /owner making the determination must:

   • a. Notify the household of the proposed denial of admission or termination of tenancy.

   • b. Provide the subject of the record and the applicant or tenant, with a copy of the information the action is based upon.

   • c. Provide the applicant or tenant with an opportunity to dispute the accuracy and relevance of the information obtained from any law enforcement agency.

NOTE: Persons who are subject to a lifetime sex offender registration requirement who were admitted prior to June 25, 2001, the effective date of the Screening and Eviction of Drug Abuse and Other Criminal Activity final rule, must not be evicted unless they commit criminal activity while living in federally assisted housing or have some other lease violation, in which case the owner may terminate the tenancy and pursue eviction to the extent allowed by their lease and state or local law.

8. A PHA may charge an owner reasonable fees for making a request, on behalf of the owner, for criminal conviction records. A PHA may require the owner to reimburse costs incurred by the PHA, including reimbursement of any fees charged to the PHA by a law enforcement agency, and the PHA’s own related staff and administrative costs.

9. Owners may use sources other than the PHA to conduct criminal background checks, including the State lifetime sex offender registration checks. The owner may conduct his/her own background search of criminal records, or may secure a contractor. When the owner conducts his/her own criminal background searches or uses sources other than a PHA, the owner will make the determination, in accordance with the owner’s standards for admission, if the applicant or tenant meets the screening criteria.

e lifetime sex offender registration checks.* The owner may conduct his/her own background search of criminal records, or may secure a contractor. When the owner conducts his/her own criminal background searches or uses sources other than a PHA, the owner will make the determination, in accordance with the owner’s standards for admission, if the applicant or tenant meets the screening criteria.

NOTE: O/As should verify the information provided by the applicant by searching the Dru Sjodin National Sex Offender Database. The Dru Sjodin National Sex Offender Database is an online, searchable database, hosted by the Department of Justice, which combines the data from individual state sex offender registries. The website for the database is located at: http://www.nsopw.gov. A record of this screening, including date performed, should be retained.

10. The owner may not pass along the costs of the criminal records checks to the tenant.

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11. Owners and PHAs have the discretion to contract out criminal background checks, including State sex offender registration checks, but will be responsible for the action and decisions made by their contractor. HUD does not prescribe the process the PHA uses to determine the source for obtaining the criminal background information. However, the criminal records must be requested from the appropriate law enforcement agency, National Crime Information Center (NCIC), police departments, or other law enforcement agencies that hold criminal conviction records.

12. Entities that obtain criminal records are not responsible for updating the criminal history of an applicant or tenant.

13. Criminal records obtained by the PHA are to be maintained confidentially, not misused or improperly disseminated; and destroyed upon completion of the originally intended use. When destroying records of criminal background in accordance with 24 CFR 5.903(g), the PHA should make a notation in the tenant file that includes the date the records are destroyed and a statement that the records were destroyed for purposes of confidentiality. Owners must retain documentation in the tenant file showing the date, type and results of the criminal background check and/or State lifetime sex offender registration check performed by the PHA.

14. Criminal records obtained by the owner are to be maintained confidentially, not misused or improperly disseminated, and destroyed three years after tenancy is terminated. Criminal records, including State lifetime sex offender registration checks, received for applicants who never move-in are to be retained with the application for three years.

15. Entities must handle any information from other records in accordance with applicable state and federal privacy laws and with the provisions of the consent forms signed by the applicant.

16. Penalties for improper release of information. Conviction for a misdemeanor and imposition of a fine of not more than $5,000 is the potential penalty for any owner who knowingly and willfully requests or obtains under false pretenses any information concerning a tenant under the authority of this rule or who discloses any such information in any manner to any individual not entitled under any law to receive the information.