The Art of the Background

Steve Kirby, CII, CFE

Introduction

Many uninformed investigators consider background research a rather mundane or unchallenging type of investigation. They would much rather be in the thick of the investigation, developing evidence, interrogating suspects, conducting the forensic audit, or conducting surveillance on the bad guys. Moreover, most people equate background research to pre-employment hiring, a Google search, a quick court record check, or at best a database report.

In reality, conducting a proper background investigation is much more. Proper background research is critical to virtually any complex investigation, civil or criminal. A well conducted background check can provide the basis for breaking an alibi; assessing the credibility of witnesses and suspects; establishing motive; identifying prior similar acts; and other information that can help make or break a case. In pre-employment or due diligence cases proper background research can save a client untold sums by avoiding making an uniformed decision.

Another misnomer about background investigations is that they are a low skilled practice. Nothing could be further from the truth. The talents needed by a successful background investigator are varied and difficult for some to develop. Conducting efficient and meaningful background checks is an acquired expertise. Most importantly, one must learn how to develop information from raw data. Plowing through public records and finding that nugget of information; recognizing what is relevant in a 30 page database report; and developing a rapport with a reluctant reference are all gifts that develop with

experience. The investigator must also have an aptitude that includes excellent communication skills (including knowing how to listen effectively); organizational skills; and an attention to detail.

Information vs. Data

The single most important capacity to conduct effective background investigation is to understand the difference between data and information. One is valuable and the other is a simply a building block. There are numerous sources for data. The trick is to make sure that the data you are mining has relevance to the case at hand. This is true in every background investigation, from the simplest pre-employment matter to the most critical case. The best procedure for making sure that the information being uncovered is relevant to the case is before getting started then ask yourself, why are we doing this background and consider what data is going to be germane to the case at hand. This simple case analysis will help keep you focused. 2

For example, in conducting pre-employment research the relevance depends upon the job. The fact that a candidate for a CEO with a Fortune 500 company has a driving under the influence charge probably isn’t important but would be for someone applying to be a school bus driver. Conversely, the school bus driver’s credit history won’t mean much; whereas the candidate to be CFO for a major company should have exemplary credit.

The same holds true for background research that is part of larger investigation, either civil or criminal. The goal is still to see the big picture – what are the important facts that impact the instant case. The primary ability for the investigator is to understand why the background is being conducted and what information might impact the case. For example, when conducting background checks on litigants or witnesses in a civil case the investigator needs to understand what might cast doubt on or bolster their credibility. Does the plaintiff have a history of fabrications or other outrageous allegations? In one case this office handled, a security guard, who was directing traffic while on duty at a downtown hotel, claimed that he was struck by a vehicle pulling out of a parking garage. The driver, a 60 year old surgeon, vehemently denied ever hitting the security guard with his vehicle. A background check revealed that the security guard had been convicted of perjury for providing false testimony in a prior felony case. Further checking revealed that he had filed three other similar lawsuits – all of which had been dismissed by summary judgment. Rather than mount an expensive defense, the insurance company was able to avoid any liability based on the background investigation alone.

In criminal cases, whether prosecuting or defending – understanding what background information is important can make or break a case. A high-profile rape case in New York fell apart not so much on the case facts but on the background of the complainant. Her alleged false claim that she was gang raped in Africa, which she later denied, was directly on point as to her lack of credibility in the New York hotel allegation.

In investigating employee theft, one of the best ways to develop a viable suspect is to do background research to determine anyone with a propensity and motive to commit the crime. When assessing criminal backgrounds, the prior cases need to be relevant, and usually timely. The author recently investigated the possibility of insider involvement in a take-over armed robbery of a fast food store. There were fifty-three employees. The background checks found that twenty-six had criminal records, fourteen were convicted felons. The task then became to assess the types of arrests for relevancy. Most of the twenty-six were for drug use and some minor offenses. Six of the employees had felony convictions for larceny (non-violent) and two had armed robbery convictions. Clearly the focus was placed on the two with armed robbery convictions. Eventually one of the two was linked to a recently paroled armed robber who later confessed to the robbery. The background led to the suspect which led to the offender. What was critical though was taking the time to sort through a tremendous amount of data to develop information. 3

Objective versus subjective Information

In general, there are two primary types of data you will develop during a background investigation, objective and subjective. The objective comes from public documentation such as court records, bureau of vital statistic documents; databases; and other public and private repositories. The subjective information comes from interviews. Both sources can be valuable and most importantly, both sources can be used to develop leads from each other. An interview might provide information that the subject was arrested in another state, which can then be documented by the appropriate court record. Likewise, a police report might name a complaining witness who can then be interviewed for additional facts or a civil suit would name an opposing party who could be an excellent source of information. In well conducted background research both objective and subjective sources of data are used to develop information.

Database Searches

In most cases, the first place to start a background investigation is with a proprietary database search. Essentially the databases are simply an electronic compilation of public records that are available at the government office that houses them. They also include credit bureau header information, which is the non financial information from a commercial credit report such as address, employment, date of birth, and in some cases social security number (usually redacted). The credit header information is supplemented from other public record data such as motor vehicle registration, real estate filings, and licensing records. Perhaps the most important information database services provide is an address history, which can help the investigator to focus on specific jurisdictions to research. Other information they might provide would be real estate holdings, vehicle registrations, suits, liens, judgments, bankruptcies, corporate affiliations, and professional licensing status. Secondary personal information such as spouse’s name, relatives, and neighbors, can also be found through these sources. It should be noted that because these data reports are simply a compilation, they are replete with duplicate and oftentimes irrelevant data. It’s up to the investigator to separate the wheat from the chaff.

Some of the more well known proprietary databases available to investigators in the United States are Accurint, TLO, Merlin, Locate Plus, Tracers, and IRB Research. Since the databases all compile their data from the same sources, most of these reports generally provide the same records. Occasionally one will have some additional data not found in the others so for sophisticated backgrounds it is recommended that at least two databases be accessed as part of the preliminary investigation.

There are also databases, such as Lexis Nexis and Dun & Bradstreet, that provide information on businesses, including identification of company officers, branch locations, banking references, sales figures, and profit and loss reports. Since most of this information comes from the business itself, the reports should be viewed with some skepticism, particularly in regard to financial data. 4

The two primary advantages of electronic databases are speed and low cost. One can now retrieve from these databanks facts and figures that would have previously taken hours to find. The second benefit of starting with these services is that they are relatively inexpensive (usually less than $10 per report) and sometimes contain information that a routine court search would not develop.

There are two notes of caution in using proprietary databases. First is that virtually none of the data they provide is verified. It would be cost prohibitive for these companies to even try to verify the most basic information. Therefore, these databases must be used as leads only. Whatever records they provide must be verified. To report what they provide as fact is malpractice. The second caution is that these databases do not allow for use of their product for pre-employment backgrounds so as to avoid being subject to the Fair Credit Reporting Act (FCRA). Therefore, they should only be used in non-employment based investigations.

Internet Research

Even faster and cheaper than databases is Internet research. However, as with everything fast and cheap, quality is sacrificed. Still, it is usually well worth the time to run the subject’s name through the various search engines. Of course, if the person has a common name or the same name as a celebrity then Internet research may fall in the area of diminished return. Still, each day the search engines become more sophisticated and by adding key phrases to your search (“John Jones” and “Cook County Criminal Search”) you can target your inquiry. The Internet is also fast replacing newspaper archives as the place to quickly find published news articles of note.

Checking social networking sites, such as LinkedIn, Face Book, Twitter, etc. can be a valuable source for background checks. Friends, family, and other information are often open for anyone to look at. Even personal injury cases have been solved by finding the claimant posting pictures of him skiing in Vail while supposedly recuperating at home from a knee injury.

Another good reason to utilize the Internet in your background check is that you are simply covering all the bases. It would be more than just a little embarrassing if your client found information in a sex offender database that you failed to find because you forgot to Google him. As with the databases, a lot of the information on the Internet falls into “nice to know” but no real relevance. It is incumbent upon the investigator to have the skills to take raw data posted on the World Wide Web and convert it to impactful information. Further, much of the information found on the Internet can be found on the databases and through public record searches. The Internet should just be used for leads and verify – always verify. 5

Criminal court records

Valuable information can be found in criminal court records, which are readily accessible at virtually every county court house in the United States. Most counties and many states (such as Missouri and Wisconsin) have statewide records available on-line via the Internet. However, a note of caution, those records should always be verified as belonging to the subject of your investigation and not someone with a similar or the same name.

Aside from the obvious, whether or not the subject has a criminal record, the files often contain valuable information such as the victim, details of the crime, the arresting officer, associates, and personal information regarding the offender such as prior addresses, social security number, gang affiliation, driver’s license, and date of birth. When checking for a criminal record, don’t overlook checking sexual offender databases and Department of Correction inmate locaters. Most are readily available through the Internet.

As with any data learned in a background investigation, the investigator must assess the relevance. In a pre-employment setting a ten year old criminal misdemeanor conviction will probably not be a bar to employment. In fact, some laws (including the FCRA) prohibit reporting cases that are over seven years old for many applicants and also prohibit reporting arrests that do not result in a conviction. Some states have a litmus test that the conviction must be relevant to the job. A drunken driving conviction will most likely not disqualify a person not driving while at work. A five year old possession of marijuana conviction may not be reason to deny employment for a laborer’s position. Conversely any felony or recent theft convictions, a history of violence, or serious and recent drug cases most likely would amount to disqualification.

Even more so, background research in complex litigation or criminal cases must also be assessed for merits, disposition and relevancy. For example, a thirty year old eyewitness who was convicted of battery seven years ago can still be an effective witness. Proper analysis of the case can also make a seemingly insignificant fact become critical. Recently in an investigation into a law suit alleging premise negligence, the plaintiff claimed that while at a fast food restaurant he was assaulted in the parking lot by two unidentified Hispanic males, without provocation. The plaintiff alleged that the lack of security was the proximate cause of his injuries. The background investigation revealed a “criminal damage to property” charge that at first glance would not appear to have bearing. However, the case file detailed that the criminal damage to property involved the plaintiff throwing a lit flare into a bedroom window at 3:00 AM. The victim in that case was a Hispanic neighbor. The plaintiff was alleged to have been yelling ethnic slurs as he threw the flare into the house. Further background investigation revealed that the plaintiff associated with “skinheads” and was a known white supremacist. Needless to say, the defense attorney had a field day during the plaintiff’s discovery deposition. 6

Oftentimes clients will only want felony records researched, thinking that misdemeanor charges are not that serious. In fact, misdemeanor charges can be quite important. In large cities many serious crimes are downgraded. In Cook County Illinois, pointing a loaded weapon at someone is usually charged as a simple misdemeanor. Even though the threshold for felony theft is $300, in Illinois many thefts for much larger amounts are routinely charged as misdemeanors. Clearly an applicant who convicted of stealing cash from his last employer, even at the misdemeanor level, would be a poor candidate for a bank teller position.

Civil court records

Checking civil court records should never be overlooked, whether at the circuit court or U.S. District Court level. They can be a tremendous source of information. These records can show a history of misconduct that sometimes escapes the criminal docket. In a recent embezzlement investigation into a loss of over $500,000 one of the suspects had no criminal record, but had been recently sued by both an Illinois and Las Vegas casino for failure to pay gambling debts. A second suspect, while he did have a criminal record, he had also been sued civilly for running a Ponzi scheme involving getting co-workers to invest in a scam venture. More and more counties are putting their civil court records on-line and the U.S. District Court records are available on-line through the subscription PACER system.

In pre-employment or due diligence cases checking civil cases is equally, if not more important. Civil court filings can reveal prior bad acts, a history of contract disputes, malpractice, bankruptcies, and other civil torts.

Other government records

Public records aside from court filings can also be a gold mine of information. Those records include, but are not limited to corporation data, driving records, building permits, licensing information, traffic citations, real estate transactions and assessments, and voter’s registration. These records are contained at various locations, such as the Bureau of Vital Statistics, Department of Motor Vehicles, Recorder of Deeds, the County Clerk’s office and City Hall. With more and more privacy restrictions, some jurisdictions limit access to these types of records or may require a release from the subject of the investigation. Many of these can be initially researched through database services or directly through the government website. However, if the documents are going to be used in an evidentiary fashion a trip to the hall of records is advisable so as to make sure any documents are certified.

Non-public records

Another source of background information is privileged files that can only be legally secured by subpoena. These include such records as bank statements, medical files, employment documents, income tax files, police reports, school transcripts, charge card details, telephone call history, and those documents that are protected by law or policy. If the case is in court, such as a 7

civil suit or criminal defense, they can usually be secured by subpoena. If the case is a pre-employment inquiry, sometimes a proper signed release will secure that information. Since these are much more extensive investigative steps, the investigator doesn’t want to be fishing – rather there should be a reasonable expectation that the records sought will contain pertinent facts.

These records used to be able to be secured from so called “information brokers” who usually used inside sources or pretext to gain access. Today that practice is patently illegal. Even if it is secured, the evidence would not be admissible. It is pointless to taint potentially valuable evidence by securing it in an illegal or unethical manner so as to obviate its value.

Human sources of information

Interview sources for background information can include neighbors, landlords, co-workers, associates, teachers, co-defendants, victims, law enforcement, landlords, and even in extreme cases anonymous sources. Virtually anyone who knows the subject, or is in a position to provide information regarding the subject’s background can be a source.

Some of the information from interviews may be factual and evidentiary while other may be hearsay, biased, or simply wrong. Therefore, it is incumbent upon the investigator to qualify the source to assess credibility. How long has the reference known the subject? Is there any hint of bias? Is the information first hand or hearsay? Is the informant speculating? These are some of the factors to consider when assessing human sources. The important concept to remember is that a quality background investigation is a building process. In some cases public record research will lead to interviews. In other cases the statements made during the interviews will need to be confirmed. For instance, if a source tells you the subject was arrested in Nevada while vacationing in Las Vegas, you need to check court records to make sure that is accurate.

In the high level pre-employment screening, interviews are important to not only look for disqualifying behavior, but to help determine the candidate’s suitability for employment, or to allow the client to compare her qualities with other candidates for the same position. When several references attribute the same qualities to the candidate (good or bad) that is usually a good indicator as to the candidate’s abilities.

The most valuable reference in employment screening is the developed reference. That is a person that knows the subject but was not listed by the applicant as a reference. Examples include a co-worker, supervisor, teacher or neighbor. These references are developed by asking someone that the applicant did list, “Is there anyone else you know who could speak towards John’s qualifications for this job?”

If at all possible, witness interviews should be done in person. There are numerous reasons that an in-person interview is far superior to a telephone chat. When the investigator takes the time to travel to an office or home it shows to the witness that this is an important matter and the witness is more likely to provide thoughtful information. Further, in a telephone interview the 8

investigator cannot analyze body language or assess the witness/reference. During a telephone interview, the person being interviewed is distracted, watching television, or multi-tasking, not giving the investigator her full attention.

Partial list of sources of information                                                                                      

Public Records                       
Internet                                                                       
Criminal court files                                               
Civil court indices
PACER                                                            
Corporate records                       
DMV records                                   
Real estate                                               
Vital statistics                                   
Traffic files                                                                                   
Sex offender list                                   
Dept. of Corrections
Police reports (via FOI request)      

Human sources
Neighbors
Law enforcement
Employers
Co-workers
Associates
Landlords
Teachers
Listed references
Developed references
Friends & family

Subscription Services
Database services
PACER
Newspaper archives
Credit bureaus
Dun & Bradstreet

Non-public records (subpoena or release required)
Police reports & records
Employment records
Medical records
Bank statements
Telephone records
School transcripts
Bank records

Privacy concerns and other cautions

In conducting any type of background investigation, careful consideration must be given to individual privacy rights and existing laws, such as the Fair Credit Reporting Act, Graham, Leach, Bliley Act, The Driver’s Privacy Protection Act; The Right to Privacy Act, as well as all state and local laws. There is simply no excuse for a private background investigation to exceed ethical boundaries or violate the law.

Above all, common sense must prevail. There is a growing concern among the general public and lawmakers that individual privacy is being compromised. Data breeches, phone hacking scandals, and egregious acts all contribute to the ever growing movement to curtail background research. Perception is the reality. Because of the Internet, people are acutely aware of how much personal information is out there and they are concerned. In Congress, each year, several bills to protect privacy are introduced and many of them, if passed, would have severe unintended consequences for the private investigator. These bills are tough and bi-partisan.

To one degree or another, any background investigation is going to delve to the subject’s personal life. It is, therefore, important to balance the intrusiveness of the background with the nature of the case. In pre-employment cases consideration should be given to the sensitivity of the position. A police candidate should expect and have a more thorough background than a clerk at a local fast food restaurant. However, a person who has signed a pre-employment information release; is a plaintiff or defendant in a lawsuit; has committed a crime; should have little if no expectation of privacy. 9

It should also be remembered that when making overt inquiries (interviews) that it is highly likely that the subject will learn of those queries. Therefore, depending upon the type of case, those should either be avoided or held off until the value of the information exceeds concern that the subject will find out he is being investigated. In this same vein, since the subject will likely learn of the interview, it is paramount that the investigator comport himself in a professional, unbiased manner when conducting the interview. The investigator needs to represent himself as an impartial seeker of truth, not as an advocate. In that respect, the background case is really no different from any other type of investigation. It’s simply a quest for truth.

Steven L. Kirby, CII, CFE
Curriculum Vitae
 

Steven L. Kirby has been a licensed private investigator in Illinois, Wisconsin, and Indiana since 1975 and was also a licensed polygraph examiner in Illinois from 1976 through 2014. During his over 45-year career he has conducted countless corporate investigations throughout the United States and in several foreign countries.

Steve was President of Edward R. Kirby & Associates from 1980 to 2014 when he semi-retired from the profession. He is currently of counsel to Kirby and Associates, which is a well- known agency, founded in 1969. Kirby & Associates specializes in fraud investigations; intellectual property matters; complex litigation support; and criminal defense. Their investigations have been featured on news magazine programs Dateline and 48 Hours, the local news media, Netflix and Time Magazine.

Since 2014 Steve has served as the Executive Director of the Council of International Investigators (CII), an organization of over 400 professional investigators in seventy countries on all six continents. He is a Past President of CII and was twice awarded their International Investigator of the Year honor. Steve is also a founding member of the National Council of Investigation & Security Services (NCISS), an active member in Intellenet. He is a Certified Fraud Examiner and member of the ACFE.

 

 

FOIA: Careful What You Wish

By Nancy S. Barber
GLASS KEY INVESTIGATIONS
Presented at the Council of International Investigators
Regional Meeting-Washington D.C.
March 17, 2018

FREEDOM OF INFORMATION ACT

The Freedom of Information Act (FOIA) was enacted in 1966 and is codified at

5 USC Section 52. The statute faced executive resistance throughout its lifetime. It was enacted despite President Lyndon Johnson’s opposition. FOIA went into effect in 1967 albeit diluted by the following exemptions[1].

  • Executive Order/National Defense
  • Internal Personnel Rules and Practices
  • Statutory Exemption
  • Trade
  • Secrets, Commercial of Financial Information. (Cause competitive harm).
  • Inter or Intra Agency Memoranda or Letter
  • Personnel and Medical Files
  • Records Compiled for Law Enforcement Purposes
  • Financial/Bank Records
  • Oil Well information

For the first time in U.S. history, FOIA provided a statutory right for US citizens to access their government’s records. While it may be the law of the land, the statute remains under constant assault fraught with disproportionate delay, lack of response and bureaucratic gamesmanship.

The implementation of the act did not guarantee public access. A series of amendments were passed to resolve some of the most persistent problems in the FOIA system bogged down by costly and litigious sparring with federal agencies:

1974 Amendment – In the wake of the Watergate scandal and several court decisions, Congress sought to amend the FOIA. President Ford vetoed the amendments and Congress voted to override the veto.

1986 Amendment – Congress amended FOIA to address the fees charged by different categories of requesters and the scope of access to law enforcement and national security records.

1996 Amendment – The FOIA was expanded with the Electronic Freedom of Information Act Amendments of 1996.

2002 Amendment – In the wake of the 9/11 attacks, the FOIA was amended to limit the ability of foreign agents to request records from U.S. intelligence agencies[2]

2007 Amendment – The FOIA was amended with the OPEN Government Act of 2007.

FOIA was recently amended in 2016. The FOIA Improvement Act of 2016 provided for the following:

  • A requirement that federal agencies make records available to requesters in an electronic format (g., PDF or online download);
  • A requirement that federal agencies make frequently requested records (requested three or more times) publicly available using an electronic format (e., made available on the federal agency’s website or its FOIA site);
  • A prohibition on federal agencies charging record production fees for costs associated with the production of requested records if the agency missed a response deadline;
  • A requirement that federal agencies disclose requested information unless the agency reasonably foresees the disclosure of requested records resulting in harm to a protected interest under FOIA. That includes national security, documents containing confidential information or trade secrets, and documents containing medical information;
  • Permissible disclosure of agency records created 25 or more years before the date of a FOIA request;
  • Use of mediation services provided by the Office of Government Information Services (OGIS) to resolve disputes between federal agencies and FOIA requesters over the validity or adequacy of an agency’s response to a FOIA request;
  • Development of new authority and duties for Chief FOIA Officers in each federal agency along with the creation of a Chief FOIA Officers Council to increase compliance and efficiency in responding to FOIA requests; and
  • A requirement that the Director of the Office of Management and Budget (OMB) oversee the creation and ensure the operation of a consolidated online FOIA request portal that will allow the public to submit requests to all federal agencies on a single website.

In spite of the foregoing amendments, there remains a deep-seated institutional hostility to public access to agency files. Most Presidents (Johnson, Ford, Bush and Obama) fought the implementation and/or amendments. The Obama Department of Justice (DOJ), which was charged with enforcing FOIA law, campaigned against the revision. DOJ lawyers distributed talking points against a version of a reform bill in 2014, arguing it needlessly added cost and complexity.

As recently as 2016, the Associated Press reported that the administration set a record for censoring or denying access to information requested under FOIA. The backlog of unanswered requests across the government had risen by 55 percent, to more than 200,000.[3]

The most significant obstacle to FOIA’s implementation is a failure to fund FOIA-dedicated agency staff to respond that underwrites institutional intransigence. Agency FOIA backlogs are endemic. Absent expensive and time-consuming litigation, there are no enforcement ramifications if an agency fails to respond.[4]

With all of the overwhelming weight of bureaucratic sloth, few, if any, consequences for refusing to respond to a FOIA request and no agency budget to perform the job, why would an investigator launch a FOIA search?

-ADVANTAGES OF FOIA-

  1. FOIA is litigation neutral. Sec. 552(a)(3). The FOIA does not contemplate considerations of the requester’s identity or intended use of agency records. FOIA contains no express statement as to its use for any purpose. You do not have to provide a reason for the request and/or identify your client.
  2. FOIA is more efficient than discovery, providing an independent means of discovery that does not require notice to any of the parties to an action. The courts have held that FOIA rights are unaffected by the requester’s involvement in any action.[5]
  3. A FOIA requester is entitled to obtain disclosure of any nonexempt agency records responsive to a request without making any showing of need or relevancy. Civil discovery is limited to subjects which are relevant to the pending action.
  4. FOIA records have no restriction to their use. Documents cannot be withheld on grounds that they are related to ongoing administrative action and/or litigation.
  5. Discovery proceedings differ significantly from FOIA actions and the general rule of “issue preclusion” would not bar an FOIA for documents which were earlier subpoenaed. For example, a FOIA could be served to obtain documents sought by subpoena during grand jury proceedings.
  6. Key advantage of FOIA over civil discovery results from FOIA’s lack of any requirement for a showing of relevancy of the records sought to a particular pending action. FOIA may be the only way to discovery of government documents during certain phases of an agency’s investigation.

If you are contemplating filing a FOIA, there are certain steps you can take to assure the best chance of success in locating the records, and it starts with an investigation before you draft your FOIA request.

-INITIAL REQUESTS-

  1. CHOOSE THE CORRECT AGENCY when lodging requests. Be certain to distinguish between local or regional offices. Local offices tend to have day-to-day operations records while regional offices tend to have more policy type of documents. DO YOUR HOMEWORK ON THIS OR YOU ADD A LOT OF WASTED TIME TO THE INITIAL REQUEST AND THREATEN SUCCESS. Remember many agencies evolved over the years. It is YOUR RESPONSIBILITY to investigate the proper agency to process the FOIA. You will never succeed if you do not take the time to identify the proper agency. FOIA is applicable to federal agencies. You cannot propound a FOIA to state or local agencies. Many states have sunshine laws; e.g., California Public Records Act.
  2. Some agencies will forward requests, but always include a request in your FOIA request to be directed to the proper agency if you are advised they do not have the records.
  3. Consider the age of your document cohort. If an agency denies having the records, do NOT assume the agency did not have them at one time. They may be on their way to the Federal Records Center or already archived at NARA. BE CERTAIN TO SEARCH NARA AND FRC OFFICES FOR RECORDS BEFORE LODGING YOUR FOIA. Otherwise you will cause delay when an agency tells you they do not have your records. What they are telling you is that the agency does not have them, but that does not mean that they agency records are not at the FRC or NARA.
  4. Fishing expeditions are not your friend.       Be as descriptive and precise as possible or you will NEVER see those records.
  5. Be certain that your initial request cites the proper codes (5 USC Sec 552(a) (3) (b) for procedural compliance.
  6. Be certain to cite in your request for copying fees to be reimbursed. You can set a budget limit.
  7. Be sure to set a date for compliance to produce records within statutory time limits. Sec. 552(a) (6) (A) (i).
  8. The initial request should re-state that FOIA requires release of all reasonably segregable portions which are not exempt. [(5 USC 552(b)).
  9. Initial requests letter should state that you are aware of your administrative appeal rights. (5 USC Sec(a)(6)(A)(i).
  10. If records are not released, your original request should ask if records are found exempt, have the agency state with specificity the nature of the exemption.
  11. Be certain that your request does not fall within the FOIA exemptions. See above.

-HOW TO BEGIN-

BEFORE you lodge a FOIA, you need to find the records. While it seems counterintuitive, it is your job to help the agency find their records. If you cannot find the records at NARA or the Federal Records Center, you can assume that the current agency has the records. Again, consider the age of your records when filing a FOIA.

-NATIONAL ARCHIVES (NARA)-

The U.S. National Archives (NARA) can be thought of as the U.S. government’s storage basement. There are nine NARA facilities in the United States.[6]

NEVER go to NARA without setting up a research appointment. They are not like public libraries where you can go in any time and expect to use the Dewey decimal system that precisely locates your documents

Each NARA facility has archivists who are typically assigned a specific record group (RG) and you should contact them before you go in to discuss the nature of your research. Remember that NARA has very strict access rules to their facilities and research areas. Each Archive issues a researcher card to be used just at their facility. [7]

Each department, agency, etc. records at NARA are organized by Record Group numbers which can be located on line at (http://www.nara.gov.). Once you have located your record group, go to the Finding Aids which are also on-line.

The Finding Aids are a loose description of the records within each record group. Find the records closest to your search criteria. Be aware that the Finding Aids reflect decades and decades of evolution. Inconsistencies can be bountiful. Some are hand written, some are not. They are only a guide and not necessarily accurate. The NARA facilities themselves often have another companion finding aid to the ones on-line that the archivist can parse out details.

And, finally, be aware that you may be presented with dozens of boxes that more or less loosely fit the Finding Aid record description, but you will have to review all of the records to ascertain IF they are the correct records.[8]

FEDERAL RECORDS CENTER

If you have done your due diligence and searched NARA records, and the agency is telling you they don’t have the records, welcome to the Dark State of public records searches. Two possibilities exist: (1) The documents were transferred to the Federal Records Center (FRC) or (2) They were destroyed following agency document retention policy.

The National Archives and Records Administration operate a system of Federal Records Centers for storage of, and access to, records of the Federal Government. The distinction here is that while NARA administers the Federal Records Center, the records are not in NARA’s possession access. Rather, FRC records remain within the purview of each agency. You will quickly find yourself in bureaucratic quicksand if you do not grasp this distinction.

But wait? If I send a FOIA to an agency, wouldn’t they naturally check to see if the materials I requested were in the FRC? Never make that assumption. Remember it is your responsibility to locate the agency’s records.

The Federal Records Center (FRC) and the National Archives are operated by the National Archives and Records Administration (NARA), but the two programs serve very different functions. The FRC is used to store records that Federal agencies need for current business on an infrequent basis. The records are still considered to be in the “control” of the agency. The FRC is not open to the public, per se. And remember, NARA has no idea what documents are in the FRC holdings.

The National Archives is the custodian of Federal records that are no longer needed for Agency business, but that have been determined to have sufficient historical value to warrant preservation.

Each agency has its own set of record retention policies, which it may or may not follow, but not all records that make their way to the FRC will ultimately survive. Most of the records stored in the FRC will eventually be destroyed. Records transferred to the National Archives will be preserved permanently. And, remember, you may find your records, but will have to overcome the declassification process. Records stored at the FRC cannot be accessed without agency consent.

But wait? How can the public find the FRC records if they are not publicly available and still under agency control. If you cannot locate records at NARA or at the agency, sharpen your FOIA pencil. Every NARA researcher should end their dig by asking the archivist, well, if they are not here, and they are not at the agency, are they at the FRC?

The FRC’s bureaucratic architecture mirrors that of NARA. Headquarters are located in Suitland, MD and regional offices are scattered throughout the country.[9]

You cannot access the FRC records. You can access a document known in-house as Standard Form 135 (SF 135). This is a form each agency fills out for transfer of temporary records and is key to locating records. The record description is often imprecise, but usually you can find a general cohort of documents relative to your search.

A researcher cans ask the FRC for a copy of the agency’s “01 Report,” which is a print-out of the database entry for the transfer of records. A researcher can also ask the agency for a copy of the related “History Report”, which tells which records were transferred to NARA, destroyed or returned to the agency. With that information you can select the accession numbers (from the 135) assigned to your records to assist in locating them.

On occasion, some FRC staff disputed public access to the 135’s and a researcher may have to remind staff of a prior administrative finding granting public viewing of the 135’s. Once you locate a 135 that describes the general nature of your records, you should obtain a copy of the 135 document for use with your FOIA request.

Now you are ready to lodge your FOIA request as the 135 document will provide the agency with sufficient information to locate their documents.

This is probably one of the most challenging research tasks, but well worth the effort. The road is filled with challenges and bureaucratic resistance. The following case study, illustrates the pit falls of pursuing a FOIA request through the FRC to the agency:

-CASE STUDY-

The client’s goal was to locate U.S. Army Base records regarding the 1965 operations of the motor pool. The client had propounded a FOIA to the Army Base and the response was that the records did not exist. Our office was contacted to locate the records.

Given that the agency denied the existence of the records in response to the client’s request, we searched NARA records and did not locate the records. By process of deduction, we located the records in the Federal Records Center using the 135’s. At this point, we were ready to lodge the FOIA request that included attaching copies of the 135s. Now the fun began.

Remember that even though the records were physically located on a FRC site, that particular US Army Base still maintained control over the records. The records have to be transported to the Base from the FRC site, reviewed for any national security claims and declassified.

Once the 135s were attached to the FOIA, and served, the Army’s FOIA officer was contacted to ask when we may expect the records, we were told that the 135s were too difficult to read and they could not pull the records. Remember, it was the agency staff who wrote out the 135 records descriptions. Next, we were told there were too many records. Then, we were told they had no room for any one to review them.

Always negotiate these responses as reflected in the following e-mail exchange with the Base FOIA Officer:

GK: Where does that leave us [if there is no room]? If I were to rent a local conference room or rent a conference room at the Fort Polk area, would that work?

Thanks, Nancy

FOIA Officer: Nancy, No (sic) reading room can be set up for you to review the documents as they have Privacy Act (PA) information. The following is (sic) the steps I will have to take to process this request.

  1. Order the 9 boxes from NARA.
  2. Once boxes come in I would have to pull each order and make a copy.
    Count each page and time spent on the request and provide you an estimated
    cost if it is more than you state you would pay.
  1. Redact information that would not be release (sic) and send to the Staff Judge Advocate for review.
  2. After the legal review the package would be send to the Initial Denial Authority for further review and release.
  3. I will give you a heads up that it is a question if the names would be redacted using B6 Exemption of the Freedom of Information Act.

Please advise me ASAP if you would like for me to proceed. 

Freedom of Information/Privacy Act Officer Assistant Installation Records

Manager Serco, Directorate of Human Resources Admin Services Div (FOIA/PA)

1941 15th Street, Bldg 2048

Fort Polk, Louisiana 71459-5463

GK:  As we discussed this morning, we can narrow the search with a sample run of the documents requested, if you can locate records that would identify approximately 25 personnel actions at Fort Polk within the parameters of the original request as a test of the relevancy of the documents to our investigation. Your assistance in this matter is most appreciated. 

Later that day:

GK: This will confirm our telephone conversation today wherein we discussed a FOIA request this office submitted on August 7th, that included the 135’s, which you stated were too difficult to read, and I will send you a transcription of them to spare you time on this.

As we discussed, a suggestion was made that perhaps the easiest way to go at this, rather than ordering all of the FRC records in the 135s which presents a significant undertaking, that we do a sample run to see if the records can be declassified in the first place for public review. I would suggest that if you would order a paradigm set of the records, perhaps 25% of the original request to have shipped to Ft. Polk, and follow the procedure implemented at NARA, where records are available for public review, but not consumption, i.e, no copying or scanning until the NARA staff at the review desk look at the records and determine that the declassification process is indeed complete. I can arrange to have a researcher review the records at Ft. Polk at your convenience, and if we just spend a day on the process, we will know that either they can or cannot be declassified, and that ends it. If they can be declassified, we can live with just that. sample run, one way or the other in order to the info needed for trial preparation. If you could check with your JAG contact to see if this would be the way we could go, I think it would expedite things and make less work for everyone.

 In the meantime, I am attaching your original response to refresh your recollection and I will get the transcription of the 135s to you later this afternoon. I appreciate your prompt call back regarding this matter and as well as your assistance. Nancy

And yet later that day…

GK:  I have narrowed the search to just one of the 135s, which has a total of nine boxes, near as I can tell from the 135. This would be an excellent sample run, and only involves nine boxes of records, if I am reading this right, and that should make the test run less difficult than addressing the entire cohort of 135 records.

 Attached is the 135 selected as a sample from the entire cohort of 135s included with the original FOIA (attached) that I have scanned for a better copy, and includes a transcription of the 135s.

If you could let me know by 8/29 if there is any chance this approach would work, that would be most appreciated or I am back at square one, and need to know that in order to respond to my client’s request for an investigation. If there is anything else I can do to assist in this, please let me know. Thanks, Nancy

Within a week, we received the sample run documents, which were precisely what the client had asked for, and not only did the documents include the identities of the motor pool base employees, but their personal identifiers were included. This provided the client with several exculpatory witnesses that, as a result, permitted the client to settle the matter with relative ease.

While FOIA requests remain bogged down in the bureaucratic muck and mire, a diligent and patient investigator can still find the mother lode. And your clients will be impressed, especially after they are originally told no records exist.

Finally, a FOIA request requires diligent preparation prior to lodging the request, especially in determining the correct agency. The burden rests with the investigator and not the agency when looking for records. You will have more success if you understand that there will be little to no assistance from the agency. Persistence, a calm, patient negotiation with the agency staff is required. Remember they have no budget and there are few, if any, consequences in simply ignoring your request. Happy hunting.

///

 

[1] Litigation Under the Federal Open Government Laws: The Freedom of Information Act, The Privacy Act, The Government in the Sunshine Act, The Federal Advisory Committee Act, Edited by Allan Robert Adler, American Civil Liberties Union Foundation, Washington D.C, 1991.

[2] The most singular assault on FOIA was the Intelligence Authorization Act of 2002 born out of the 9/11 attacks. It had a series of consequences to researchers that obscured transparency and caused significant delays. For example, documents in the control of the National Archives Records Administration (NARA) that had been declassified over the last several decades were reclassified. Researchers now must wait for NARA personnel to declassify documents, again. One Archive has only one staff member assigned to declassification, who, because of staffing shortages, was forced to take a six-week vacation. That added two to three months’ time to gain access to the documents. Documents that had been previously reviewed, and duplicated, were now classified. In some instances, some of my clients had been provided documents that were declassified decades ago, which, in theory, they now could not legally possess because of the reclassification.

[3] National Law Review, June 21, 2016.

[4] Jurist, “The Freedom of Information Act Was Just Amended. Here’s What Changed-And Didn’t”, Jonathon Bruno, July 2, 2016.

[5]A FOIA request itself becomes a part of the official record and can itself be released to another party.

[6] Alaska, California, District of Columbia/College Park, MD, Georgia, Illinois, Iowa, Kansas, Massachusetts, Michigan, Ohio, Pennsylvania, Texas and Washington  Records are typically lodged locally. For example, records from Hunters Point Naval Shipyard most likely are in San Bruno, whereas records from Long Beach Naval Shipyard would be in Laguna Niguel. College Park is the mother ship for most DC based agencies that are headquartered in that area.

[7] . If you have a researcher ID card from College Park, it can be used at any NARA facility.

[8] For example, the Navy has a numerical filing system for categorizing their records. One of the categories is “Correspondence” and while general in its description, it often contains specific references to a research topic that is not necessarily apparent at first blush in the Finding Aid’s record description. For example, while the Navy did not maintain its procurement records for World War II, there is correspondence that addressed procurement.

[9] See https://www.archives.gov/frc/locations for a list of FRC offices.

Nancy S. Barber
California, USA

Nancy S. Barber founded Glass Key Investigations in 1988. Glass Key Investigations provides investigative services for matters involving toxic tort, environmental, land use, elder abuse and civil litigation. The firm conducts corporate research, witness locate and trial support.

Ms. Barber holds a Forensic Environmental Investigation Certification., B.A. in Spanish, a M.A. in Latin American Studies, a Paralegal Certificate and a nursing home ombudsman certification. She has served as in instructor in environmental law and paralegal training. Glass Key Investigations was awarded fees in a public land use action filed in U.S. District Court case in which the firm donated pro-bono services to a plaintiff’s action against the federal government.

Ms. Barber is a member of the California Association of Licensed Investigators (CALI), National Association of Legal Investigators (NALI), Council of International Investigators (CII) and National Council of Investigation and Security Services (NCISS).

Risk-Based Pre-Employment Screening

by Bernhard Maier

Bernhard Maier is a licensed private investigator and security agent in Vienna, Austria. His agency BM-Investigations was founded in 1998 and mainly serves clients from the financial sector. He holds university degrees in political sciences (magister) and security management (master). As an expert witness, Bernhard Maier consults Austrian courts and authorities. He is a regular speaker at Vienna based detective academy Eurodet, an ISO-certified risk manager and Certified Fraud Examiner.

 

Table of Contents

Introduction 2
Screening principles 3
The PES model at a glance 4
Step 1: Plan 6
Step 2: Search 10
Step 3: LOOp 12
Step 4: Decide 13

This paper was provided as a hand out of the presentation „Risk based Pre- Employment Screening“ at the ACFE European Conference on 20.03.2017 in London, UK.

Contact:
Bernhard Maier, BM-Investigations e.U., Sterngasse 3/2/6, 1010 Vienna, Austria, Fon +43 1 5221372, office@bm-investigations.at, www.bm-investigations.at

Introduction

Pre-employment screening (PES) refers to the process of vetting candidates before they join a company. To do this, information is obtained from various sources to check whether an individual poses a security risk to a prospective employer. It is important to distinguish between PES and the process of determining to what extent a candidate is qualified for a position (education, work experience, soft skills, etc.). The latter is not covered by PES and is a responsibility of human resource rather than fraud management.

Books and articles about PES usually provide checklists of information sources to be used when screening potential employees. This approach is only useful to a limited extent as the legal framework differs from country to country and so do the available information sources. The PES process model described below dispenses with such operative elements (a checklist-style list of information sources). It lays down screening objectives and leaves the operational implementation open, which is why it is universally applicable.

Protection of data and privacy presents a compliance challenge in the development of a PES process. Legally compliant screening must satisfy the criteria of relevance and appropriateness. The PES model described in this paper gives fraud management a tool at hand to figure out what is deemed to be relevant and appropriate information gathering.

Screening principles

It makes sense to define the principles of screening at the outset. This model sticks to the following principles:

  • Transparency: PES must be transparent to third parties to be verifiable and subject of audit. The transparency principle is bound to lead to textualisation, i.e. the creation of a corporate document outlining PES in a manner that is transparent to third parties.
  • Consent: Candidates will only be screened with their prior written consent.
  • Fairness: PES may not discriminate and must be carried out in an unprejudiced manner. Fairness also means that the final hiring decision is based on complete information.
  • Relevance and appropriateness: The screening must provide relevant information about candidates by entering the candidate’s private sphere in an appropriate manner. The parameters are the duties, competencies and responsibilities associated with the vacancy.

The PES model at a glance

The risk-based PES model has four process steps.

Plan

This step determines the risks of the vacancy by an assessment. The findings of the assessment are used to establish the scope and intensity of information gathering. In addition, the exclusion criteria for candidates are laid down.

Search

The documented information gathering takes place in the next step “Search”. In this step, information sources are searched, information from these sources is gathered and the credibility of the used sources is assessed.

Loop

The “Loop” step provides candidates the opportunity to comment on any negative screening results. In addition, this step makes it possible to uncover CV-fraudsters.

Decide

In the last “Decide” step, a decision is made whether a candidate is acceptable from a security perspective.
The effect of this process is threefold. The company’s management is

  • actively engaged in the prevention of fraud risks,
  • meeting its duty of care responsibilities
  • and meeting compliance requirements (depending on the industry).

Step 1: Plan

Summary
This process step is mainly focused on

  • Preparing risk profiles for the positions to be filled (risk profile matrix)
  • Determining the scope and depth of screening and
  • Defining red flags

Preparing risk profiles for the positions to be filled

To comply with the principle of appropriateness of screening, an analysis of the risk factors associated with the open position is carried out first.
It is not really practicable to conduct a thorough analysis of each position in companies that employ a large number of staff. In such cases, fraud management is required to create risk groups that allow an easy categorization of a vacancy.

There are six areas of an applicant, which have the potential of turning out risky for an employer. The PES model refers to them as risk dimensions.

  • Extremism: This refers to religious and political attitudes and values, which lie well outside the range considered acceptable in a modern democracy.
  • Financial difficulties: This refers to financial standing, i.e. the level of indebtedness compared to assets and income. Financial pressure is known to be a major motive of fraud.
  • Concealment of identity or residence: Attempts to conceal identity or residence indicate that the candidate may have the tendency to evade obligations or liabilities that may arise at a later stage.
  • False CV-information: This risk dimension covers false statements about skills and qualifications of candidates.
  • Substance abuse: poses a risk in the case of excessive consumption of legal substances and the consumption of those that are classified as illegal.
  • Lack of integrity: Integrity means the willingness to observe laws or contractual obligations, when an employee has the choice to take action, which runs counter to the objectives of the employer.

While the boundaries between the risk dimensions are blurred and overlapping, this does not present a problem in practice. What counts is to spot risk factors during PES.

The “labelling” of these factors is less important.

In a next step, a risk profile matrix is created to determine which of the above risk dimensions apply to the open position. The six risk dimensions on the x-axis of the matrix are plotted against the maximum damage an employee in the role in question can cause on the y-axis.

The amount of damage is broken down into low, medium and high. Each of the six risk dimensions is ranked to determine whether an employee at the position in question is capable of causing damage that is low, moderate or high to the company.

When identifying potential events of damage only those can be taken into consideration, which are relevant to the key powers conferred upon the position to be filled. In other words, they must relate to the core competences. It should be avoided to identify a plethora of potential incidents.

Furthermore, it is important to use different perspectives to identify potential damage events. These include the internal/external perspective and four possible damage groups.

  • Internal/external perspective: Looking at the issues at hand from the company’s and third-party perspective.
  • Damage groups: Damage can be broken down into four groups
    • Personal injuries
    • Damage of property
    • Financial losses
    • Reputational damage

Next, thresholds are defined, which make it easier to assign the maximum damage event to a category (low, medium, high).
Example of a risk profile matrix

The figure above shows an example for a position of a sales representative. He will be required to use a company car to visit private households and conclude contracts for the installation of satellite TV systems.

From an internal perspective, the risk dimensions of identity/residence concealment, substance abuse and lack of integrity are ranked as moderate. These rankings are attributable to the fact that the representative will be provided with a company car, which could be embezzled or damaged.

From an external perspective, there are three high-risk dimensions, namely identity/residence concealment, substance abuse and lack of integrity. The dimension extremism is ranked as moderate. The high ranking of identity / residence concealment and lack of integrity is attributable to the insights of the respective position. The employee will be visiting households, which means that he will be able to gather insights with respect to assets and security measures, which could be used in a theft or burglary. Substance abuse is considered to be high-risk because of the requirement to use a company vehicle in the public (risk of third party property damage and personal injury). Finally, the moderate ranking of extremism is based on fact that the employee will to some extend represent the company towards customers. Openly radical views could potentially damage the employer’s reputation.

Overall, it is irrelevant whether the ranking of risk factors stems from internal or external points of view or both. It is the highest ranking within a risk dimension that counts. In the following example, three high-risk dimensions (identity / residence concealment, substance abuse and lack of integrity) and one moderate-risk dimension (extremism) are identified. This is used to determine the scope and depth of screening.

Determining the scope and depth of screening

The screening scope tells us for which of the six risk dimensions needs to be investigated.

The screening depth tells how deep to dig in the relevant risk dimension. It makes sense to use three depth levels (low, moderate, high) to determine the intensity of the screening to be performed. This classification is reflected in the number of information source used in the screening of a risk dimension, or the use of techniques to increase screening depth. The details of these techniques are described in the “Search” process step.

Fraud management has to decide from which ranking onwards risk dimensions should be investigated and to what depth. This decision is based on the risk appetite of the organisation. It makes sense to conduct more in-depth checks of those risk dimensions which rank higher in the risk profile of the vacancy than those classified as moderate.

Example of screening scope and depth
Based on the above example, the screening scope and depth of an organisation with moderate risk appetite could look as follows:

Risk dimension

Ranking

Screening?

Screening depth

Extremism

moderate

YES

low

Financial difficulties

low

NO

Identity/residence

concealment

high

YES

moderate

False CV-

information

low

NO

Substance abuse

high

YES

moderate

Lack of integrity

high

YES

moderate

Defining red flags

Red flags are risk indicators that are defined before the start of operative screenings. They point to common and frequently occurring risks and are used in the “Decide” step to reject applications.

Example of red flags

A conviction for a property-related offense (risk dimension integrity) or high levels of debt (risk dimension financial circumstances) can raise red flags, if the vacancy is
associated with handling high amounts of cash.

Step 2: Search

Summary
The process step “Search” is mainly focused on

  • Identification of suitable sources of information
  • Gathering information in adequate depth
  • Assessment of source’s credibility
  • Documentation

The screening scope and depth is determined in the “Plan” process step with the help of the risk profile matrix. The following step “Search” is based on this decision and involves investigative screening activities.

Identification of suitable sources of information

This model doesn’t give any indications, which sources of information to be used in the screening. It only indicates which risk dimensions should be investigated and to what depth. What the model does is defining screening objectives. It is the responsibility of local fraud management to spot suitable sources and conduct investigations in a lawful manner to achieve these objectives.

The information sources that can be used include publicly accessible registers, databases of private providers, media archives, social media and internet research, psychological and polygraph testing, personal references, drug tests and candidate interviews. This list is not exhaustive. In addition, candidates can be asked to submit documents, which are not publicly available (such as utility bills to provide proof of residence).

Gather information in the adequate depth

In general, there are three levels of depth (low, moderate, high). These four investigative techniques can be used to increase the depth of screening:

  • Extending the period under review: E.g. the screening depth can be increased by obtaining information about candidates not only from the last employer but from the last tree employers. This technique is not useful for the financial circumstances of an applicant, because only the current financial standing is relevant.
  • Various sources from the same category: Information is gathered from the same category of sources that are independent of each other. For example, information will be obtained from several credit rating agencies to determine the financial situation of a candidate.
  • Various sources from different categories: Here, several sources of information, which belong to different categories are used for the same risk dimension. The candidate’s social media profiles can be used to find out more about the personal views (risk dimension extremism) of a candidate. In addition, a reference provided by the candidate is contacted and interviewed.
  • Combination: Finally, the depth of the information gathered can be increased by combining the three aforementioned methods. An example would be to extend the period under review and at the same time broaden the variety of sources used.

It lends itself to define shallow depth as access to only one source of information. Moderate depth could be defined as using one of the above techniques (except for combination). High screening depth could be associated with the requirement to combine two of the techniques.

Another way to determine the level of depth – which is probably easier to put into practice – would be to specify the number of sources used in the screening (one source = low, two sources = moderate, three sources = high).

Reliability of sources

Information from sources may not be used without scrutiny. The source must be assessed in terms of credibility.

Documentation

The information obtained must be recorded in a traceable and verifiable manner. The documented findings are used in the “Decide” process step as a basis for deciding
whether candidates are acceptable from a security perspective or not.

Step 3: LOOp

Summary
The “Loop” process step essentially means an in-person interview with the candidate to

  • address any negative findings and/or
  • uncover red flags of CV-fraud.

If the interview raises new red flags, it will be followed up with a new search into these flags, including another interview.

In this process step, an in-person interview is conducted with the candidate. This is an opportunity to address any negative information that has emerged during the “Search” step. Information is not always self-explanatory. It makes a difference whether financial difficulties are a result of a shopping addiction or a long-term illness-related inability to work. In such cases an interview can give a better understanding of an applicant.

To comply with the fairness principle, negative information should be considered from the perspective of the candidate. This is the reason why the step is named “Loop”. A looping allows us to look at things from various angles, including maybe the applicant’s up-side-down point of view regarding a flag discovered during investigation.

This process step also offers the opportunity to stamp out candidates who lie or provide false information on their applications. To do this, special interviewing techniques are used (questions about trivialities, repeatedly rephrased questions on the same topic,
monitoring response time behaviour).

Step 4: Decide

Summary
The process step “Decide” involves

  • Evaluation of the information obtained
  • Decision, whether candidates should be accepted or rejected from a security perspective.

In this step, the findings obtained in the previous steps, including any additional information (comments from the candidate) are evaluated. The key criterion in the evaluation is risk relevance.

Evaluation of information

In the first instance, it is necessary to evaluate the content itself. To do this, it is checked whether the information obtained raises any red flags. The information that a candidate has committed acts of domestic violence should be made contingent on the type of role sought. It will be less relevant, for example, if the candidate is applying for a position in accounting. However, if the candidate is applying for a job, which involves caring for patients in a hospital, violent tendencies should, by definition, raise concerns.

After having checked whether the information obtained raises any red flags, the quality of the information has to be assessed, using criteria such as frequency, intensity and timeliness. The one-time withdrawal of a driving licence for drink-driving (risk dimension substance abuse) has quite a different weight than if this is a repeated offence. Similarly, shoplifting (lack of integrity risk) should be considered differently than aggravated fraud.

Decision

Finally, the applicant is either accepted or rejected from a security perspective. This assessment is passed on to the management in form of a recommendation rather than a final decision, whether to hire the candidate or not.