Lookback periods and reportability: How far back are criminal records searched and what records will appear?

This article will help you:

• Recognize what is included in the scope of a lookback period for criminal searches
• Understand why you might see a longer or shorter time period for certain records

One challenge of interpreting a background check is understanding the “lookback period” for the scope of a search versus what is reported on the criminal history section of the report. In other words, the question you may ask is, “How far back are records searched during a background check, and why would or wouldn’t I see certain information on the report?”

The answer to this question depends on the process used to search for records in multiple jurisdictions (such as county and federal jurisdictions), as well as the applicable legal requirements for that jurisdiction.

What’s included in the scope of a county criminal search?

Most of the United States’ 3,000+ counties make their records publicly accessible dating back at least seven years. Here “publicly accessible” means the records are available to be searched through a digital Public Access Terminal (PAT), a year-by-year index, or with assistance from a court clerk.

A common lookback period for county criminal court searches is to search for possible records that date back the last seven years, although in most states, a company may request searches that look for records beyond seven years.   

What’s included in the scope of a federal criminal search?

Federal records are searched using the Federal Judiciary’s Public Access to Court Electronic Records (PACER) system. Records are typically available dating back indefinitely, depending on the electronic-record keeping practices of a particular jurisdiction. 

Why might the records that appear on the report be different from the lookback period?

There can be limitations in the age of the publicly available records. Each court jurisdiction maintains (and makes available) their records based on their own procedures, so the records that are available can vary depending on the court. For example, some county courts might only provide only 7-10 years of record information, while other county courts provide much older records. 

There are also rules that affect what records can be reported on a background check. For example, there are rules for reporting convictions vs. dismissed records, or records that were ultimately expunged or sealed. 

Some states limit the searching or reporting of criminal record information to seven years depending on the candidate, job, or employer/partner location. That means that even if the search looks for records going back indefinitely, only records from the last seven years can appear on a report. States that generally have a seven-year limitation include:

• California
• Kansas
• Maryland
• Massachusetts
• Montana
• New Hampshire
• New Mexico
• New York
• Washington

For these states limiting the scope of how far back records can be searched or reported, the question of “what defines X years” can be complex to answer. For example, "seven years" could be defined as:

• Seven years from the date of disposition (like the conviction date); or 
• Seven years from when the person was released from incarceration.

Depending on the availability of information, the seven-year counting period often begins on the later of these occurrences.

Can the lookback of a search or what is reportable change based on industry?

Certain regulated industries, such as Transportation Network Companies (TNCs), may be  required to enhance their search scope to the adult lifetime of an individual and may be exempt from state rules limiting the searching or reporting of information to seven years. These searches are referred to as “indefinite lookback” searches. Indefinite lookback searches can vary from county to county with respect to what can be retrieved.

We recommend that you consult with your counsel to review your policies, procedures and compliance requirements as it pertains to industry-specific lookback requirements of criminal record searches.