What criminal information is used to screen my application?
Housing agencies and subsidized landlords generally obtain information about your past criminal activity through questions on an application and by conducting a criminal background check. Generally, you can be denied housing or a voucher because of past criminal activity that may threaten the health and safety of others. For more about the specific reasons that you could be denied housing, see Challenging a Denial of Housing. While a housing agency can deny you housing based on criminal activity, it must provide you with a copy of the information it relied on, and an opportunity to dispute its accuracy and relevance.9
Almost all agencies ask you to provide information about any criminal activity on your housing application. You must provide accurate information. If a criminal background check shows that you provided false information, a housing authority or subsidized landlord may deny you housing because you misrepresented or failed to reveal the requested information.10
If you are not sure what ultimately happened with a criminal charge, or whether or not you were convicted, or whether a crime was a felony or misdemeanor, say you are not sure.
The most common type of criminal background check is done by requesting state criminal offender record information—CORI, for short.11
Massachusetts keeps a record of every criminal court appearance in the state courts. When a person is charged with a crime in a Massachusetts state or federal court, that person has a CORI. Even if the case is dismissed or if the person is found not guilty, there is still a CORI.
A CORI report includes the history of each criminal charge, from arraignment through all subsequent court proceedings and sentencing.12 For this reason, there may be a lot of entries or multiple charges on a CORI report, even though there may be only one criminal incident. These reports can have errors and include information that they should not include.
CORI is kept by the Criminal History Systems Board (CHSB), a state agency. CHSB must certify that an organization or individual is allowed to request a CORI of someone else. When CHSB receives a request from a certified entity, CHSB produces a CORI report.
The CORI report you get may be different from the CORI report that a housing authority or subsidized landlord gets, so never give the housing authority or landlord a copy of the CORI you have received. In fact, it is illegal for a housing agency to require you to provide them with a copy of your Massachusetts CORI.13 The housing authority must get its own copy from the CHSB.
For more information about housing authority access to CORI reports, see How do housing authorities access my CORI report?.
Housing agencies which have received special certification can request certain out-of-state criminal record information through local police departments, but must follow a specific procedure.14 For information about out-of-state criminal records, see Will the housing authority check criminal records outside of Massachusetts?
If you are applying for most federal housing, the housing agency is required to check if you or members of your household are subject to a lifetime sex offender registration requirement if you are applying for most types of federally funded housing.15
Housing agencies may also seek information from drug treatment facilities about whether you are a current user of illegal drugs, but your consent is required for this.16
If you are applying for public housing, a Section 8 voucher, or a Massachusetts Rental Housing Voucher, a housing authority or regional nonprofit housing agency is allowed to get a CORI report on all members of your household who are 17 years or older. They are also allowed to get CORI on applicants who are younger than 17 who have been convicted of a crime as an adult.17
A housing agency may request CORI only with respect to applicants who are 'otherwise qualified' for housing assistance.18 In other words, a housing agency must first determine that you are eligible for housing assistance and then can it do a CORI check.
A housing agency must inform you in writing that it is requesting a CORI.19 They should ask you to sign either an acknowledgment form or a consent form that gives them permission to request criminal records from law enforcement agencies.20 If a housing agency is doing a CORI check, regulations also require them to verify your identity with a government-issued form of photo identification.21
The criminal records that are available to a housing agency in a CORI report are limited to two types of information:
- Criminal convictions Felonies and misdemeanors, no matter how old (unless they are sealed); and
- Open cases Cases that are still open and have an 'O' or a 'V' in the status section of the CORI report. These include cases that are continued without a finding, on file, on appeal, or where there is a default warrant, or where the person is still on probation. These are open regardless of whether the person is found guilty or not.
It is illegal for a housing agency to require you to provide them with a copy of your Massachusetts CORI.22 The housing authority must get it from the CHSB.
Housing agencies are NOT supposed to get CORI reports listing cases with favorable court dispositions.23 Favorable court dispositions include cases which ended in a finding of not guilty or that have been dismissed without any punishment, such as a term in jail, a fine, or probation. For example, if your case was continued without a finding and then dismissed, the case should not be in a CORI report that a housing authority gets because the case was dismissed without any punishment and is no longer open.
Before the CHSB sends a CORI report to the housing authority, they should filter out all the cases with favorable dispositions. Unfortunately, sometimes favorable decisions get included in CORI reports by mistake. If the housing authority gets a CORI with a case that has been dismissed or otherwise ends favorably for you, you should fill out a Complaint Form and send it to the CHSB.
If the CORI sent to the housing authority has a mistake on it as to what happened in the case and you have the docket sheet from the court proving that what is on the CORI is a mistake, it may make sense to give the housing authority a copy of the docket sheet. But do not give a housing authority a docket sheet if it contains other information that would be harmful to you. You should also have such an error fixed on your CORI. See What can I do to make my CORI better? for more about how to fix your CORI.
Once a housing agency has your CORI, it must keep this information confidential and the record must be either destroyed right away if you were admitted to housing or kept for a certain period of time if you were denied.24
Housing authorities are allowed to check for out-of-state criminal record information when screening adults applying for public and subsidized housing who otherwise qualify for assistance. But, they must follow certain procedures set out in new regulations.25
Under these regulations, a housing authority may submit a request to a local police department to check whether you are listed in an FBI database. The database is an index of people arrested for felonies or serious misdemeanors under laws in other states or under federal law.26
After the housing authority submits its request, the police department conducts a computer search using your name and date of birth. If there is a possible match, the police department notifies the housing authority, which will then ask you to give the police department fingerprints that it will submit to determine whether there is a positive match.
If there is a match, the criminal record that matches the fingerprints match will be sent to the local police department. Before giving the criminal record to the housing authority, however, the police department must obtain any missing information about the outcome of an arrest and must remove any information that is not a criminal conviction or a pending case. The police department then forwards information about convictions and pending cases to the housing authority. All other records must be destroyed by the police department.
Because the records on this database are supported by fingerprints, this process is unlikely to bring up records which are not actually yours. However, there may be other problems with the quality of these records. The records may not contain complete information; for example, they may not show the final outcome of a criminal charge. In addition, the police department may make errors in deciding what information should be taken out and what should be released to a housing authority.
What criminal records are available to private landlords?
Private subsidized landlords do not have an automatic right to request CORI from the state onl applicants for housing. They may do so only if they have been certified for this by the Criminal History Systems Board (CHSB).27 If they are successful in getting that certification, then private owners may get the same type of CORI reports that housing authorities do (see How do housing authorities access my CORI report?). Several of the large multifamily landlords in Massachusetts are certified by CHSB to receive CORI.
Even if they do not have this certification, private landlords as a member of the public, may access some CORI information. This is based on a complicated provision of the law which allows anyone to get, for $25, a "publicly accessible" CORI report for people who are or were "under supervision" of the criminal justice system and have certain types of convictions.28
Owners of federal multifamilysubsidized housing can also request that a local housing authority get adult criminal conviction and pending record information on any member of your household who is 17 years of age or older (and on persons younger than 17 if they were tried as an adult).29 The housing authority cannot turn over the conviction record to the requesting owner, but may only compare the information on it with the owner's tenant selection policy and tell the owner if there is a conviction which would cause the person applying to be denied under the tenant selection policy.30 If the owner denies you housing on this basis, you can appeal the decision through the local housing authority. Not many owners have used this method for screening.
Some private owners use private background checking or tenant screening agencies to obtain information about tenants, including public information about criminal activity. This information may be taken from daily logs of police departments (blotter sheets), which include arrest information and initial charges, and may also be summarized in community newspapers. The most common background screening agency is called FirstAdvantage SafeRent (see How can I get a copy of my credit report?).31
Police logs do not, however, contain information about the final outcome of cases. If a management company obtains information from a police blotter or other public source, it may ask you to verify that the charge has been disposed of. If there was a positive outcome, be sure to communicate the information when you reply. If you fail to respond to such a request, this is likely to lead to a denial of housing because the management company may assume that there is a negative criminal history.
Can a private landlord charge me a fee to check whether I have a criminal record?
In Massachusetts, while the law clearly states that a landlord can charge a tenant first month's rent, last month's rent, a security deposit, and the cost of a new lock and key, the law does not state that a landlord can charge a fee to get your CORI report.32 A private landlord may refuse to rent an apartment if you do not pay an extra CORI check fee, even if it is illegal. If you decide to pay a CORI fee because you are afraid you will lose an apartment, make sure you get a written, signed, and dated receipt for the money you paid. The receipt should explain exactly what the money is for. This receipt is very important. If you later decide to challenge this extra fee or deduct it from your future rent, the receipt will be proof of what the money was used for.
If you are applying for federally or state-funded housing, the cost of obtaining criminal or sex offender records cannot be passed on to you.33
Do juvenile crimes count?
In Massachusetts, CORI reports do not include criminal record information about a person who is under 17 years of age—unless that person is considered a 'youthful offender' and has been convicted as an adult.34 For any person who is 17 or older, juvenile crimes cannot be reported on their CORI unless they were tried as an adult for those crimes.35
If, however, a housing authority or subsidized landlord is aware of the wrongful or illegal activity of a person who is under 17 old, it may try to use this information to show that a household member is likely to disturb neighbors. In other words, you may be denied housing based not on a CORI report, but on evidence uncovered through other public records, such as police blotters and arrest reports in newspapers. You can challenge this denial.
If I was charged with a crime but not convicted, will this affect my eligibility for housing?
It may. Even if you were not convicted, a housing agency or subsidized landlord can deny you housing if they have independentinformation that you have engaged in illegal activity.36 This independent evidence must show that it is more likely than not that you or someone in your household engaged in illegal activity. Independent evidence might include police reports, credible eyewitness accounts, search warrant applications, and any admissions that you make about illegal activity that you engaged in.
Do I have to report all criminal history on my housing application?
You must provide accurate information on your application. If a criminal background check shows that you provided false or incomplete information, a housing authority or subsidized landlord may deny you admission due to misrepresentation or the failure to reveal requested information.37 If you are not sure what happened with a particular charge or cannot remember, write down that you do not know.
If you have defaulted in a court case—which means that you failed to appear in court, failed to report to a probation officer, failed to pay a fine, or failed to perform some other obligation—your case is still open. This means it will show up on a CORI report. If you do not clear up a default, a court can issue what is called a criminal default warrant for your arrest. It is better to try and clear up a default before it turns into a default warrant. You have to go to a court to address a default.
If you think there is a default warrant issued for your arrest, you should seek legal help from a criminal attorney before going to court on your own, since an outstanding warrant could result in your arrest if you appear in court.38 You may have other reasons to want to clear up defaults, since they can also serve as a basis for denial of welfare or food stamp benefits.
How to contact a criminal defense lawyer
If you are low-income and meet certain income guidelines, you have a right to a public defender or a private attorney appointed by the court to help you remove a default. For more about public defenders and private attorneys trained to accept criminal cases, you can call the Committee for Public Counsel Services at 617-482-6212 or 800-882-2095.
If you had a public defender or an appointed lawyer at the time of the case, you should take the following steps:
- Contact that attorney and ask if he or she is willing to assist you in getting a default removed.
- Ask that attorney to look into the matter and meet you at the courthouse to remove the default, recall the warrant, arrange for bail, or take whatever other action is necessary.
- If that appointed attorney is reluctant, ask him or her to contact the Committee for Public Counsel Services (CPCS) and request to have the Notice of Assignment of Counsel reopened for "necessary work" on the case, citing the right to counsel for a default removal.
- If that attorney is unavailable or will not reopen the matter, or you feel that the attorney did not provide you with effective assistance, you should contact the County Bar Advocate Program for the county where your case was filed, inform the program administrator that you want to remove a default, and ask when the program next has an attorney assigned to the court. You should also ask who the attorney is and ask for his or her phone number so that you can arrange to meet at the courthouse beforehand to discuss the default. See a list of County Bar Advocate Programs.
What if I have a violation of probation or parole?
If you are in violation of probation or parole, you should consult a criminal attorney about how to clear up any violations, especially if you are applying for federally funded housing. Read What if I have a default warrant on my record? for more about how to contact a criminal lawyer. While there is no specific rule that says housing authorities and subsidized landlords can deny you housing because you have violated your probation or parole, you could later be evicted or your assistance could be terminated for violations of probation or parole.39 This rule applies only to all members of a household for state programs and specifically to heads of households for federal housing programs.
9 42 U.S.C. § 1437d(q)(2); 24 C.F.R. § 5.903(f) (criminal records); 24 C.F.R. § 5.905(d) (sex offender registration information).
10 HUD Notice H 2002-22 (issued Oct. 29, 2002, expired Oct. 31, 2003), pp. 8-9.
12 While G.L. c. 6, § 167 calls for CORI to include information on the history of each criminal charge, from arrest through court proceedings to sentencing and release, in actual practice, the only part of this information which is kept by the CHSB is court-generated information which has nothing about arrest or when a person was released from jail or prison or discharged from parole.
13 G.L. c. 6, § 172, ¶ 5, 3rd sentence, which states: 'Except as authorized by this chapter it shall be unlawful to request or require a person to provide a copy of his criminal offender record information.'
14 42 U.S.C. § 1437d(q)(1)(A). See also HUD Notice PIH 2003-11 (HA), which, even though it expired on April 30, 2004, is still used by housing authorities. Every housing authority that has federal public housing or a Section 8 program must have a Section 8 Administrative Plan and a PHA Annual Plan that tells you what its policy is in terms of where it gets criminal records.
15 24 C.F.R. § 5.905(a)(1).
16 42 U.S.C. § 1437d(t)(1). A housing agency can get this information only if it seeks it either for all applicants or for all applicants with criminal records or poor landlord references based on destruction of property, violent activity, or interference with other tenants’ peaceful enjoyment. 42 U.S.C. § 1437d(t)(3)(B).
17 State: G.L. c. 6, § 167. Housing authorities also have access to criminal record information after someone moves into public or Section 8 housing for purposes of continued eligibility. Federal:42 U.S.C. § 1437d(q)(1)(C); 24 C.F.R. § 5.903(a). This applies also to housing subsidized by project-based assistance under Section 8 new construction, and substantial and moderate rehabilitation programs. This information can be used for screening, lease enforcement, evictions, and screening new household members.
Note: While 24 C.F.R.§ 5.902 says that criminal record information can be obtained for a person who is 18 years or older, it also says that it can be obtained for anyone who has been convicted as an adult. In Massachusetts, 17-year-olds charged with crimes, if convicted, are convicted as adults and therefore automatically fit into this definition.
18 803 C.M.R. § 3.05(3). In addition, 803 C.M.R. § 5.05(3)(a) states that: "requests for CORI shall not be made prior to the final application screening process including compliance with all provisions relating to applicant screening in regulations of the Massachusetts Department of Housing and Community Development."
19 803 C.M.R. § 5.05(1)
20 Acknowledgments are required by G.L. c. 6, § 172, ¶ 5, 4th sentence. Consent forms are required under 24 C.F.R. § 5.903(b).
21 803 C.M.R. § 3.05(3)(d).
22 G.L. c. 6, § 172, ¶ 5, 3rd sentence, which states: "Except as authorized by this chapter it shall be unlawful to request or require a person to provide a copy of his criminal offender record information."
23 G.L. c. 6, § 168, ¶ 3 (providing that housing agencies may receive conviction data and data concerning arrests and pending criminal charges).
24 State: 803 C.M.R. § 5.05(6) states that CORI shall be destroyed when the applicant has been housed or received a subsidy. If the applicant has been determined ineligible, the CORI shall be destroyed three years from the date of the application's rejection or after administrative or judicial challenges of the denial, whichever is later. Federal: 42 U.S.C. § 1437d(q)(4); 24 C.F.R. § 5.903(g).
25 803 C.M.R. § 5.06. Also, under federal law, housing authorities administering federal public housing and/or Section 8 housing may check out-of-state and federal criminal records through the FBI's National Crime Information Center (NCIC) as set out in 42 U.S.C. § 1437d(q)(1)(A). A public housing authority may also make a request for information on behalf of an owner of federally funded project-based housing, but cannot make the actual information available to the owner. Instead, the housing authority must determine whether the information is consistent with the owner's screening and lease policies.
Housing authorities or owners requesting housing authorities to obtain criminal record information must pay to obtain records through the NCIC. The cost of obtaining the records cannot be passed on to tenants. See 24 C.F.R. §§ 5.903(c)(2) and (d)(4).
27G.L. c. 6, § 172, ¶ 1, clause (c). Certification may be granted if the public interest in disclosure outweighs the CORI subject's privacy interest in non-disclosure. Certification lasts for two years. For more information about certification, see Housing in the Executive Office of Public Safety and Security (EOPSS) of the Commonwealth of Massachusetts website.
28 G.L. c. 6, § 172, ¶¶ 6 and 7. The details of this are more precisely explained in The CORI Reader, p. 7, ¶ 6, in the section that starts with the heading: "Any member of the general public, when the ‘CORI curtain is up.''' See The CORI Reader (updated Oct. 1, 2005), produced by the Massachusetts Law Reform Institute and available on MassLegalServices.org.
29 42 U.S.C. § 1437d(q)(1)(B); 24 C.F.R. § 5.903(d).
30 42 U.S.C. § 1437d(q)(1)(B); 24 C.F.R. §§ 5.903(d)(1)(ii), (iii), (e)(1)(i).
31 A background checking agency can also petition the CHSB to receive Massachusetts CORI reports. First Advantage SafeRent does have such certification, but it can only request a CORI report on behalf of a housing agency or subsidized landlord that has also been certified to receive CORI. See October 25, 2005 letter from Massachusetts Criminal History Systems Board to First Advantage SafeRent, Inc., approving its application for access to CORI, on file at Mass. Law Reform Institute.
32 G.L. c. 186, § 15B(1)(b).
33 Under state law, a housing authority can obtain CORI reports free of charge. 803 C.M.R. § 5.04. If a federal housing authority seeks federal criminal records, it must pay a fee, but it cannot pass that fee on to the applicant. 24 C.F.R. § 5.903(d)(4) (criminal records); 24 C.F.R. § 5.905(b)(5) (sex offender registration information).
34 803 C.M.R. § 2.04(2). For a definition of 'youthful offender,' see G.L. c. 119, §§ 52 and 58.
35 G.L. c. 6, § 167; 42 U.S.C § 1437d(q)(1)(C); 24 C.F.R. §§ 5.902 and 5.903. Note: While 24 C.F.R.§ 5.902 says that criminal record information can be obtained for a person who is 18 years or older, it also says that it can be obtained for anyone who has been convicted as an adult. In Massachusetts, 17-year-olds charged with crimes are convicted as adults and therefore automatically fit into this definition.
36 See G.L. c. 121B, § 32; 760 C.M.R. § 5.08(1)(d); and 42 U.S.C. § 13661(c), which require disqualification for having engaged in criminal activity, and do not require the individual to have been convicted of criminal activity.
37 760 C.M.R. § 5.08(1)(h).
38 It is a good idea to clear up default warrants because the federal rules provide that tenants in federal public housing or in the Section 8 voucher, moderate rehabilitation, or project-based programs can be evicted or have their assistance terminated for fleeing to avoid prosecution or incarceration or violations of probation or parole.
Public housing: 42 U.S.C. §§ 1437d(l)(9), 1437f(d)(1)(B)(v); 24 C.F.R. § 966.4(l)(5)(ii)(B); Section 8 Vouchers: 24 C.F.R. § 982.310(c)(2)(ii); Section 8 Moderate Rehabilitation: 24 C.F.R. § 882.518(c)(2)(ii); Project-Based Section 8: 24 C.F.R. § 5.859(b).
39 Public housing: 42 U.S.C. §§ 1437d(l)(9), 1437f(d)(1)(B)(v); 24 C.F.R. § 966.4(l)(5)(ii)(B); Section 8 Vouchers: 24 C.F.R. § 982.310(c)(2)(ii); Section 8 Moderate Rehabilitation: 24 C.F.R. § 882.518(c)(2)(ii); Project-Based Section 8: 24 C.F.R. § 5.859(b).
Produced by Massachusetts Law Reform Institute Last updated December 2009