The term “background check” is often used interchangeably with “criminal history check” or “criminal history record check” which causes some confusion. Some companies use the phrase “background check” to include driver’s record, credit history, or interviews with neighbors and employers. From the Florida Department of Law Enforcement (FDLE) perspective, a background check is a criminal history record check to determine if a person has been arrested and/or convicted of a crime. For the purposes of this paper, it is a search of the following databases:

• the Florida Computerized Criminal History (CCH) Central Repository for Florida arrests (State Check),
• the Florida Computerized Criminal History Central Repository for Florida arrests AND the national criminal history database at the FBI for federal arrests and arrests from other states (State and National Check) and
• the Florida Crime Information Center for warrants and domestic violence injunctions (Hot Files Check).
• National criminal history record checks, as well as state checks, are based on the submission of fingerprints.

Level 1 and Level 2 Background Checks are terms used in Florida Statutes to convey the method of the criminal history record check and the extent of the data searched. However, the terms may also refer to certain disqualifying offenses if certain statutes are referenced. Level 1 and Level 2 are terms that pertain only to Florida and are not used by the FBI or other states. They are defined in Chapter 435, Florida Statutes (F.S.), but are used elsewhere in statute without definition and appear not to be associated with all of the provisions in Chapter 435, F.S.

• Level 1 generally refers to a state only name based check AND an employment history check.
• Level 2 generally refers to a state and national fingerprint based check and consideration of disqualifying offenses, and applies to those employees designated by law as holding positions of responsibility or trust. Section 435.04, F.S., mandates Level 2 security background investigations be conducted on employees, defined as individuals required by law to be fingerprinted pursuant to Chapter 435, F.S.
• It should be noted that both the state and national criminal history databases can be searched for arrests, warrants, and other information pertaining to an individual. However, neither database has the capability of searching for specific offenses within an individual record.

State Check: May be obtained by submitting a name request or by submitting a fingerprint card.

National Check: The following must be in place, as required by the FBI, to receive a national criminal history record check:

A statute must exist as a result of a legislative enactment;

It must require the fingerprinting of applicants who are subject to a national criminal history record check;

It must expressly (“submit to the FBI”) or by implication (“submit for a national check”) authorize the use of FBI records for the screening of applicants;

It must identify the specific category(ies) of licensees/employees falling within its authority;

It must not be against public policy;

It may not authorize receipt of the criminal history record information by a private entity;

The recipient of the criminal history record check results must be a governmental entity;

The entity must sign a User Agreement indicating it will comply with the terms and conditions set forth in rule by the FBI; and

The fingerprint submission must be first processed through the state repository for a search of its records.

The ORI number (Originating Agency Identifier). This number is provided by FDLE and identifies the agency requesting the criminal history check and for what purpose.

The OCA (Controlling Agency Identifier). This number is provided by DCF and identifies the provider requesting the background check.

Without the ORI number and the OCA number, FDLE cannot process the request and will not know where the screening results are to be sent.

No. If the state and national fingerprint based criminal history record check is completed, the agency will be notified of all persons designated as sexual predators or offenders in Florida and in the national system.

No. The decision to conduct criminal history checks on volunteers remains a local decision, but schools are required by Florida law to check volunteers’ names against the state sex offender registry which is available via the Internet at no charge. If a school district chooses to perform state and national criminal history on volunteers, those checks MUST be conducted through the VECHS program and not through the regular submission method with other personnel fingerprints.

Additionally, Section 943.04351, F.S., requires checks of the sexual offender/predator registry for certain volunteers, appointees or employees.

FDLE does not have any requirements for rechecks. However, some employees are required by law or policy to have periodic state and/or national criminal history record checks through the regulatory or licensing agency. The recheck may be required at regular intervals as decided by legislative policy.

Yes. Pursuant to Section 768.096, F.S., in the case of an intentional tort, an employer is presumed not to have been negligent in hiring an employee if before hiring the employee, the employer conducted a background investigation of the prospective employee and the information did not reveal any information that reasonably demonstrated unsuitability of the prospective employee for the work to be performed or for general employment. The background investigation must include a criminal background investigation.

Sealed information is disseminated only to those agencies authorized by provisions in Section 943.059, F.S. Agencies not specified in the statutes are not provided sealed criminal history information.

Expunged criminal history information is not disseminated. However, a notification that a record has been expunged is provided to agencies consistent with provisions in Section 943.0585, F.S. Agencies not specified in the statutes are not provided the expunged notification.

Juvenile criminal history information, not sealed or expunged, is disseminated only when the subject was taken into custody for an offense that would be a felony if committed by an adult.

Hot File notifications consist of information that may not be part of the Computerized Criminal History (CCH) system. Some examples may include: warrants, domestic violence injunctions/protection orders, deported felons, missing persons, probation or supervision release status, career criminal offender, etc.

NOTE: A name search of this file is completed for each submitted transaction and any identified information is returned in the completed results as appropriate. The “hot file” information received is not based on a fingerprint comparison so it may or may not be the applicant. The agency that entered the information can be contacted to learn more about the record.

In addition, system generated notifications are sent to the appropriate criminal justice agency notifying them of the criminal history record check request. These messages will include information on the entity making the request as well as demographic data regarding the subject of the transaction. Hot File notifications are only provided to customers that submit their background checks to FDLE with fingerprint submissions or with name searches submitted directly to FDLE f or processing. CCH on the Internet submissions do not include a search of hot f iles from the CCH system. However, anyone may search FDLE’s Public Access System for wanted or missing persons at https://pas.fdle.state.fl.us.

Yes. FDLE has records the FBI does not have access to because they are not collected at the FBI.

Although generally state and national criminal history information may not be shared between agencies, exceptions apply only if the purposes of the criminal history record checks are the same and the agencies are both entitled to the same information. Thus, school districts may share criminal history information with other school districts because the checks are conducted for the same purpose and all districts receive the same data (for example, they receive sealed criminal history information). Likewise, a county health department could share with another county health department because criminal history record checks are conducted for the same purpose and they receive the same data.

Sharing of criminal history information is not allowed when it has been obtained for different purposes, even if the data received is the same. For example, criminal history information received by the Department of Financial Services for licensing insurance agents may not be shared with the Department of Agriculture and Consumer Services for licensing of security guards.

For those entities participating in the VECHS program, criminal history information sharing between VECHS entities is permitted in accordance with the User Agreement. Entities must contact the VECHS Unit at (850) 410-8324 for entity verification before sharing criminal history information.

Pursuant to federal law, regulatory and employing agencies may not share any information obtained from a state and national criminal history record check with a private entity. However, these agencies can indicate whether or not the person is eligible for licensing or employment based on their established criteria. Prior to being granted access to the records, authorized agencies must sign a Criminal Justice or Non-Criminal Justice User Agreement with FDLE agreeing to abide by state and federal law.

Non-governmental entities are not authorized to receive both state and national criminal history information under statutory licensing and employment provisions. The only time non-governmental entities are eligible to obtain national criminal history information is through the VECHS program, which is described in detail in the VECHS section below.

Section 943.051, F.S., established FDLE, Division of Criminal Justice Information Services, as the central repository of criminal history information for the state of Florida. Over one million arrests a year are added to the repository. Additionally, information such as warrants, domestic violence injunctions/protection orders, probation or supervision release status, sexual predator/offender, career criminal offender, etc. are added on a daily basis. Therefore, criminal history record check results are only accurate as of the date they were performed.

Civil Workflow Control System (CWCS) is an Application Used to Receive and Process Fingerprint Based Submissions for Criminal History Record Checks:

FDLE has established a five-step process to be completed when bringing any new civil applicant livescan into the agency’s internal computer processing environment.