Limitations Of Sealed Criminal Records

Sealed Criminal Records: Two Men Agreeing to Keep a Secret

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Protecting Your Privacy

Sealed criminal records are designed to protect your privacy. Unfortunately, these well-intended laws provide only limited protection.

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Sealing

In New York, cases that are dismissed get “sealed”, as do cases that result in acquittal of all charges after trial. The same is true where the district attorney or police decline to file charges in court. Other types of cases that result in no conviction also get sealed. (Criminal Procedure Law § 160.50.)

Cases that result in conviction of only a “non-criminal offense” get sealed too, but perhaps not quite as tightly as cases that result in no conviction. (Criminal Procedure Law § 160.55.)

Sealing upon No Conviction

When your case gets sealed upon there being no conviction, the following things are supposed to happen:

All photographs and fingerprints related to your arrest are destroyed or returned to you or your lawyer.
New York formally requests in writing that the FBI, and all other law enforcement agencies that received your photographs or fingerprints, destroy or return them.
All official records and papers, including judgments and orders of a court (but not including published court decisions or opinions or records and briefs on appeal), relating to the arrest or prosecution, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office are sealed and not made available to any person or public or private agency.

Sealing upon Conviction of Non-Criminal Offense

When your case gets sealed upon conviction of a “non-criminal offense”, the same things are usually supposed to happen, except the court records do not get sealed. However, court policy (“policy” does not have the same force as “law”) requires sealing of court records relating to convictions of non-criminal offenses too.

Unsealing

In certain situations, sealed records can be “unsealed”.

For example, sealed records are available:

To you or your “designated agent”.
To prosecutors and police who demonstrate “that justice requires that such records be made available”.
To law enforcement agencies to which you apply for a gun license.
To any prospective employer of a police officer or peace officer, in relation to your application for employment as a police officer or peace officer.

Criminal Procedure Law Section 160.50(1)(d) and 160.55(1)(d).

Things a Court Can’t Seal

The following items cannot be sealed: 1) the memory of each person who knew about your arrest prior to sealing; 2) the ability of people to gossip about your arrest, in person and online; and 3) news reports about your arrest.

Sealing only applies to government records. This is an ever-increasing limitation on the ability of sealing to protect your privacy.

Data-mining companies greatly limit the ability of sealing to protect your privacy. Data-mining companies are lucrative, privately owned businesses. Among other things, they scour government records for information about pending criminal cases.

When government records get sealed, data-mining companies are not required to seal the records that they obtained from the government prior to sealing. So, while the court might seal government-held records of your arrest, it will not seal privately held records.

As If It Never Happened

New York law is well-intended where you case terminates favorably with no conviction: “the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution”. Criminal Procedure Law § 160.60.

Unlawful Discriminatory Practice

It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a [sealed] termination of that criminal action . . . , in connection with the licensing, employment or providing of credit or insurance to such individual; provided, further, that no person shall be required to divulge information pertaining to any arrest or criminal accusation of such individual not then pending against that individual which was followed by a [sealed] termination of that criminal action or proceeding in favor of such individual . . . .”
– Executive Law § 296(16).

Anti-Discrimination Law Limited to NY

New York’s anti-discrimination law only applies in New York State.

So, New York’s anti-discrimination law does not bar the federal government from asking you about a sealed case. For example, if you apply for an immigration benefit, such as citizenship or permanent residence, the federal government may ask you about arrests that resulted in dismissal or acquittal of all charges.

Likewise, the law does not bar an employer in another state from asking you about a sealed arrest in New York. For example, if you a apply for a job at a private company in Idaho, that company can ask you about arrests that resulted in dismissal or acquittal of all charges, unless Idaho has a law that prevents the company from asking such questions.