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.