Utah Code section 77-40a-401 controls what happens once an expungement order has been signed by the court. It sets out rules for distribution of the order by the Bureau (BCI) as well as what agency’s are required to do once they receive a copy of the order.
Individuals and Expunged Records
Two classes of individuals should be considered when addressing the effects of an expungement order in a Utah criminal case: first, the person who is the subject of the expunged records (the arrestee, defendant, etc.); and second, other individuals who may have information about the case.
Answer Like It Never Happened
Subsection (2) of section 401 provides that a person who has had a criminal record expunged “may respond to any inquiry as though the arrest or conviction did not occur.” There are exceptions to this general rule that may be required by other law or by court order. But in the absence of a specific law or court order, if records of an arrest, conviction, or court case have been expunged, those records should not appear on official criminal background history reports and questions about such records can be answered as though the arrest and conviction never happened.
Once expunged records are sealed, destroyed, or erased, they will no longer be available to the public. This can make it easier for individuals to find employment, housing, and other opportunities that may have been restricted due to a prior criminal history record. However, there are certain limitations to expungement, and it may not completely erase any and all traces of the criminal record.
Other Individuals
Individuals who are not part of or employed by a government agency may independently have information about or direct knowledge of the events that led to an arrest, criminal court case proceedings, or conviction or case status information. An expungement order does not directly affect the free speech rights of these individuals or their ability to discuss or disclose information relating to the arrest or case, soo long as the information about the case was obtained from sources independent of privileged access to expunged records.
Agency Responsibilities re. Expunged Records
BCI is the designated record keeper for criminal history reports and information in Utah. Other agencies such as police departments, jails, prosecutor’s offices, probation and parole offices also keep records relating to arrests and criminal convictions.
Bureau of Criminal Identification (BCI)
BCI is required to keep, index, and maintain records of arrests and convictions even after an expungement order has been entered. But Utah’s expungement laws place strict restrictions on the release of expunged records by BCI.
Upon receipt of an expungement order, BCI will normally forward a copy to the FBI. BCI also removes records of the arrest or conviction from its regular database. If all of a person’s criminal charges and arrests have been expunged, then a request for a criminal history report from BCI should yield a “no records found” response.
Agency Action on Receipt of an Expungement Order
An agency that receives an expungement order is required to expunge (delete, erase, destroy, redact, etc.) the individual’s identifying information that may be contained in the records in possession of that agency that relate to the incident affected by the expungement order.
In some circumstances, this will result in complete deletion or destruction of the entire record. In other circumstances, especially when other individuals were also arrested, charged, investigated, etc., the record may still be retained by the agency, but the identifying information of the individual who is the subject of the expungement order must be removed from the agency’s regular records.
Once expunged, the agency is generally prohibited from disclosing the existence of the records (if the records are still retained) or disclosing the identity of the individual whose information was expunged from such records.
Criminal Consequences for Disclosure by Agency Employees
Unless otherwise specifically authorized by law, an individual employee of an agency that retains records of expunged cases is generally not allowed to disclose the existence of or contents of such records without a court order. An employee or agent of such an agency who unlawfully discloses expunged records may be criminally charged with a class A misdemeanor under Utah Code section 77-40a-405.