What Must You Disclose After Having Your Criminal Record Sealed in D.C.?

One of the questions I often get in connection with the sealing of a criminal record in D.C. is this:  What must the person disclose about his or her record after that record has been successfully sealed?

The lawyerly answer to that question, of course, is that it depends.

If the record was sealed on the grounds of actual innocence, the person is able to deny it in all circumstances without opening him- or herself up to charges of perjury or of making a false statement. As D.C. Code § 16-802(i) puts it, the person is restored, “in the contemplation of the law, to the status he or she occupied before being arrested or charged.”  It continues:  “No person as to whom relief has been granted shall be held thereafter under any provision of law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge his or her arrest, or charge, or trial in response to any inquiry made of him or her for any purpose.”

Things are bit more complicated if the record was sealed under D.C. Code § 16-803 dealing with arrests and convictions in which actual innocence is not alleged.  In that case, the person may legally deny the fact of the arrest or conviction – again without subjecting him or herself to charges of perjury or of other otherwise making a false statement – with one exception.  This exception is that the person MUST disclose the fact of the arrest or conviction in response to any DIRECT question asked in connection with any jury service or in connection with “any questionnaire or application for a position” with any court; any federal state, or local prosecutor; with any law enforcement agency; with any licensing agency with respect to an offense that may disqualify a person from obtaining that license; with any licensed school, day care center, before or after school facility or other educational child protection agency or facility; with employment or quasi-judicial officer; or with employment at a senior-level, executive-grade government position (for example, with the senior executive service in the federal government).

Once any type of criminal record is sealed, “no records are available” is the proper answer from any court clerk or agency who is asked about the record by a member of the public.  I also know from experience that sealed records are extremely difficult to obtain even for the person who requested the sealing.

Of course, being legally able to deny the existence of an arrest or conviction and the advisability of actually doing so are two separate questions.  But this is a slightly more complicated issue that will have to await a separate blog entry.