So, we want to start by saying, all of our publications state they are written by “The Hawk’s Eye,” but if you go to our “About,” section, you will see the legal name of the author. This is done on purpose, for a purpose which one may understand, after reading this piece.
We have been seeing a ton of reports on concerns about a Texas Commission on Law Enforcement (TCOLE) document, known as the the “Separation of License,” or “F-5,” and its effectiveness of background investigations.
The purpose of the F-5 is not to use it to validate someone else has done a background investigation on the candidate an agency is hiring. It is a tool used to determine any issues. This is were the document is a “government record,” and treated as such under the Texas Penal Code of Tampering with Government Records, 37.10. This means, there is no need to create any new laws or requirements. All the things people think they need to improve oversight of the background investigation process is not needed, until proper oversight occurs; because you do not know what is really needed. The talk about an electronic database is only as good as its implementation and utilization.
A background investigation, conducted by each agency, even when a prior one is done, is intended to re-review an applications complete span of adult life. You just have more information to go on as the person moves. The more the person moves, the less likely, should you perform a proper investigation, to pass a “Gypsy Cop.”
The audits TCOLE conducts on license holders with an agency does not mitigate minimum requirements, such as educational standards. The background investigation still requires re-verification of high school education. Nothing changes, but to TCOLE you should already of did this on the initial appointment. For them, its a “choke point,” an area where this must be done and they have not (currently) identified any risk for it not to exist in records after such initial audit. This is why the agency, has a duty to still obtain all the required documents. TCOLE does have the authority to review whatever they’d like, but they usually do not.
As it relates to obtaining records. Agency’s are provided “Release of Information,” forms; as they are required for employment verification purposes. The State of Texas has a well defined and legally binding records retention law from the Texas State Archives and Library Commission (TSALC). Every government agency has a mandate for records retention too.
The records exist, the reviewing agency has documents supporting the release of information and the state has the best tool one could utilize, the Texas Pubic Information Act (TPIA). The benefit to an agency, is one can request whatever they feel is relevant to review and they are able to mitigate (in our opinion) the “confidential” limitation by submitted the “Release of Information,” form as justification for release of the confidential information. Should the releasing agency identify limited use of the information; such as documenting it cannot be released to anyone but the requester? Yes it should, but the TPIA process legally bids an agency to act and present records. If an agency feels there are violations of 37.10 within the Texas Penal Code, the agency is well within the legal limits of law to inquiry as appropriate.
Now, about our “branded name in all of our stories. This is where understanding where information would be available becomes relevant. There are many structures of government and they all have information to rely upon. There is always a record of something, it just may not be in the form one is realizing. This is where an investigator, seeking government records, needs to be creative. We could create this whole guide of how to obtain records for background investigations, and maybe we will if TCOLE ever requests our assistance, but until then, we will leave it up to the investigating agency to start thinking outside of the box; especially since that is just the paperwork and not the character evaluation.
We will say, the TPIA does not require anyone to justify their reasoning to obtain the records, but if an agency wants to withhold anything, your lack of justification may assist in the denial. There has to be some public value to the information requested and it must outweigh the burden of privacy.