Appeals Judge Sherman to DOJ: quit bullying

The State Department of Justice is acting like a bully by refusing to take simple and inexpensive steps to ensure that victims of identity theft are not mistaken by potential employers and others for the criminals themselves, according to Appeals Judge Gary E. Sherman.

"A citizen of this state is being harmed by a practice of the government that has no apparent governmental purpose and that would be easy and inexpensive to correct, yet the only response of the authority is that it will continue to do so because there is no law that compels it to do otherwise," Sherman chided in his concurring opinion in Dennis A. Teague v. J. B. Van Hollen. 

In essence, the judge wrote, the Department of Justice's attitude is "'we are doing this to you because we can.' That is the response of a bully and not an appropriate response of the government of a democracy."

Teague, whose misfortune began was his name was used as an alias by a criminal, for now is out of luck. Sherman agreed with is his District 4 Court of Appeals colleagues Brian W. Blanchard and Paul B. Higginbotham that the court cannot compel the Department of Justice to try to alleviate any confusion about Teague's criminal record or, more accurately, lack of criminal record.

​A little background: When someone's identity is swiped or used by a bad guy, the Department of Justice will provide an "innocence letter" to a victim when requested. The letter explains that the person has no criminal history and should not be confused someone else who has criminal history.

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"That is the response of a bully and not an appropriate response of the government of a democracy." -- Appeals Judge Gary E. Sherman

Sherman

​DOJ does not, however, provide the letter to anyone, such as a potential employer, requesting a criminal history on the victim. So that requester may get notified that the victim's name was used by a criminal, leaving the potential for the misunderstanding that the victim is the criminal.

Teague wanted the court to require DOJ to tell anyone requesting his criminal history about his innocence letter. If DOJ didn't include the letter, Teague argued, his "reputation and opportunities for employment, housing, and the like could be impaired, because such responses could be read to imply that Teague and (the criminal) are the same individual, who has used both names and has a criminal history."

All three judges said the court lacked the power to give Teague the relief he sought.

Sherman, though, said DOJ, by failing to provide information about the innocence letters, was providing incomplete information to people requesting criminal histories. ​

“It is not settled law whether an incomplete response is an inaccurate response under the open records law, but logic would suggest that it is,” the judge wrote.

DOJ said that providing the letters would be inconvenient, but Sherman was skeptical.

“Because the number of innocence letters is small, the State’s argument is difficult to reconcile with good faith,” the judge wrote. “There are many ways in which an inexpensive routine method of checking for innocence letters could be incorporated into the procedure.”

"What is most troubling to me about this case is that it is here at all," Sherman wrote. "Just because one can do something does not mean that one ought to. Irrespective of this court’s ability to resolve the problem, why does the authority (DOJ) not resolve the problem itself? The authority has suggested no governmental reason not to do so." ​​​

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