When a court's expungement order stipulates that all entities with related data to the case, and data collection and data reseller companies destroy any and all records related to a case; does this mean the private online person search sites must destroy all references to the cases that were expunged?
Or do I need to reach out to each of these individual “background search” sites to request that their information be updated to reflect the order?
In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely.
Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up.
The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them.
Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order.
I disagree that a private company need not seal its records - put simply since they do. I do not just give an answer to give it, but will add authority or links to other sources. Many attorneys offer services to send out letters attaching the court order to data brokers, for example this one in California. Most states offer some form of expungment and/or record sealing. See a list here. One national law firm boasts "Update over 650 background check companies with your newly cleared record".
Keep in mind to expunge a record does not mean to seal a record in all states. For example in California Penal Code Section 1203.4 will discard a conviction for a not-guilty plea and dismiss the case, but not seal the file. The conviction must be disclosed on applications for state or government employment. However, California Penal Code Section 851.8 does allow for record sealing and destruction of records along with the right to deny the arrest ever took place.
I have drafted and prepared for counsel dozens of record sealing orders in Nevada, California, and Texas. When someone obtains such an order sealing a record - an expectation of privacy is created. Specifically, when a record is sealed a right to privacy attaches. See, Gonzalez v. Spencer, 336 F.3d 832 (9th Cir.), cert. denied 157 L.Ed.2d 253, 124 S.Ct. 334 (2003) (attorney and law firm liable for accessing sealed case file without court authorization) See also, Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005). (federal courts generally recognize that individuals - both parties and third parties - have a right of privacy, which protects against unwarranted disclosure of confidential and personal information.)
Once an order sealing a file, conviction, etc. is issued, the next step is sending certified letters to data brokers who feed the hundreds of smaller databases. The theme of the letter is that you have a right, in most cases, to deny the existence of a case and it is trampling on that right, thus must seal the record. I have yet to see a data broker not seal its record. Class action lawsuits such as Giddiens vs. LexisNexis, Henderson v. HireRight Solutions Inc.; Roe v. Intellicorp Records Inc.; and Robinson v. General Information Services Inc., have pushed background checking organizations into cooperating with a free service through the Foundation for Continuing Justice. However, not every company is on board and it’s possible for a person’s expungement to slip through the cracks.
