Expunged records- civil law question

I have a working knowledge of criminal law but no real need to know much about civil law.

I heard about an incident recently that made me think of this question. I am in no way involved. I’m curious about the principal. I’ll simplify the scenario for the purposes of this thread.

Bob committed a criminal act. He was arrested. The facts of the case are not in dispute. He was caught red handed and there were witnesses. Because Bob had a clean record he was offered pre-trial intervention. If he stays clean for a year the charges go away and it doesn’t show up as a conviction. He completes PTI and the charges go away. His name is still on all of the police reports which are public record. After several years of clean living Bob petitions the court to have his record expunged. The request is granted. His name is removed from all reports both paper and electronic. His finger prints are removed from the database. As far as the government is concerned it never happened.

Many years later Joey gets into a heated discussion with Bob on social media which is open to the public. Joey reveals the details of Bob’s arrest. Joey isn’t in law enforcement. He is not connected to the government at all. He was a witness to the original arrest. He knows for certain what happened because he was there. When Bob sees the post he threatens to sue for libel.
I know truth is the defense against libel/slander but how about in this case? Joey knows what he knows but the government says it officially didn’t happen. Does Bob have a case for libel?

Would it make a different if Joey was a friend or family member of a witness and he was just repeating what he was convinced is true? Would it matter if he could produce a firsthand witness or not?

Would it make a difference if Joey gained his knowledge through his employment with a government agency?

Wait, is that really how it works? Ten year old police reports are dug out of the file room, and someone carefully paints white-out over Bob’s name in all of them, lets them dry, and then puts them back in the file? And another person does the same thing in the prosecutor’s files, and then in the Court’s files? (Surely, nobody makes the Defense attorney delete all reference to Bob?)

I would have thought there would still be arrest records, court records, etc., just with another court entry saying “Expunged”, so that if anyone tried to deny Bob a government benefit due to his conviction, he could point to the “Expunged” record and the relevant state statute, and get the benefit.

To the real OP, as a matter of law, in most jurisdictions truth is a defense against libel. Bob was in fact arrested, so Joey saying Bob was arrested is not libel.

How Joey can prove the fact that Bob was arrested is another thing, of course. In a civil case, it’s a ‘preponderance of evidence’ standard, so Joey doesn’t need to prove beyond a doubt that Bob was arrested, only that it’s more likely that Joey is right than Bob. It’s obviously up to the Judge or Jury whether they’re going to believe Bob or Joey if it comes down to ‘he said/he said’. Though I suspect, if Joey testifies that he witnessed the arrest himself, they’re going to be reluctant to give a big libel award just on Bob’s denial that it happened.

Incomplete truth: Joey didn’t mention that it was 20 years ago, and Bob was a child at the time. Bob looses all his social-media income (200K pa). Does Bob have any kind of claim for the damage that Joey has done?

Here’s a story that may have some bearing on the OP’s question.

One problem with “expunged” records is that the court is not the only one to keep records. Many of these records have migrated to private databases for companies that do background checks. If this arrest was relatively recent (say within 15 years), those records are almost certainly out there.

This is not my area of expertise, and it is not clear to me what expungement actually accomplishes, and the process varies among states, but I do not think it is a magic eraser. My understanding is that an expungement does not imply that the offense never happened, and the records of the arrest swill usually still remain in place. They will likely be sealed for most purposes, although sensitive background checks may still obtain access. Certain license applications may still require disclosure of expunged proceedings. There is a lot of conflicting information out there.

Certainly, if Bob were to sue for defamation (and thus affirmatively put the matter at issue), I think it would be perjury for him to answer “no” under oath when asked if he had ever been arrested or if he had ever had an arrest expunged. Similarly, I think Bob would be required to produce any records of the arrest and the expungement in his possession to Joey.

Here in Chicago, when I helped my cousin expunge his one arrest as a juvenile (his fault was getting punched in the face and knocked out by a cop’s son), the arrest disappeared completely from court records and his paper police file was returned to him after completing the process. Expungements are supposed to completely erase the record here. They are not the same as sealings, which keeps the record, but under seal. Also, there are very specific circumstances under which an expungement is granted.

Now how much is left “behind the scenes,” I don’t know, but the criminal lawyers I were working for at the time said they were unaware of any method of finding out if someone has had an expunged arrest or not, here in Illinois. Laws may vary by other states, of course. This was also c. 2005 (the expungement) and the arrest was c. 1993.

It’s not magic but it is an eraser. It’s not just sealed. The reports remain but the name is erased. Either electronically or by hand with paper reports. Criminal history is tracked by when you were fingerprinted for an arrest. Those fingerprints are completely removed from the system. Everything in any government record or database must be physically removed by order of the court.

True but probably not relevant to this question.

The Feds still have access to them for immigration purposes. Lots of people end up in immigration trouble for not mentioning expunged convictions on immigration forms, sometimes because they legitimately think the convictions actually don’t exist anymore.

Only the (unrecorded) conviction and record “disappears”. Somebody stating that something which did happen, happened (and first hand, not from somebody else) is stating the truth. The arrest is a fact. Bob might have a case if he was called a criminal because he had no conviction of any crime. As for “he said, she said”, both would have to give evidence and Bob could not deny the arrest. The absence of any record doesn’t mean that it never happened.

BUT all of that is dependent on whatever-might-be-in-the-legislation wherever all of this happened. Here, the effect of a “spent conviction” is set out. If there’s something in the legislation that says “nobody is allowed to talk about it, ever” then Bob might sue for breach of that legislation.

(The official record isn’t the only way the arrest could be proved, assuming that Bob was prepared to perjure himself. The witnesses still exist and might be tracked down. There will still be records that somebody considered his application to have the record expunged)

Access from where? I know that if the report and arrest originated where I work even I can’t look it up directly from the source. We certainly don’t send any information to the federal government about routine arrests. If they can’t get it from us and we don’t get if from them how do they get it?

I honestly don’t know how, but it happens all the time. Perhaps from the courts rather than from law enforcement? Or the FBI database?

I’ve dealt with expungements a few times, as a prosecutor and now as a magistrate, and yes, in our digital age these records really do propagate. A typical expungement court order here requires that notice be sent to the chief of police of wherever the person was arrested, the chief prosecutor there, the court’s own probation department, and the Ohio Bureau of Criminal Identification and Investigation, which maintains the statewide LEADS database of criminal and traffic convictions. Depending on how diligent these folks are, details of a conviction might still get out into that great information tsunami the kids these days are all calling “teh Internet.”

Agreed, although Joey would have be smart enough to ask for such records through pretrial discovery, as any halfway-competent lawyer would advise him to.

I could find only a few reported cases in Ohio similar to that set forth in the OP. It’s obviously very important what the alleged slanderous statement is - if you say, “Joe is a convicted felon” and he was charged but not convicted, you’re going to lose. If you say, “Joe was arrested once” and he actually was arrested, even if an expungement was later ordered, then you’re going to win.

No, I would say it is relevant. If a copy of the police report has migrated out of police control, then Joey may be able to rely on it as proof of the truth of his comments, which can be a defence in a defamation suit.

There might be issues for Joey in proving a chain of continuity in the record, but that’s a different issue.

The proof is that Joey was there. He was a witness. This didn’t happen in a vacuum. It wasn’t a rumor. At the time no one disputed that the act happened and who did it. There are any number of witnesses. Cops who arrested him. The judge and prosecutor who were there when he admitted guilt to get PTI. The judge who agreed to the expungement. Having a document from an outside source can’t hurt but it’s not really the point.

The statement was something along the lines of “He is a thief. I saw it happen.” To me it seemed that the speaker would be protected from being sued due to it being the truth. I was just trying to find out if there was some special legal precedent covering expungement.

I’ve found no such cases in Ohio, but as you say, the truth is a defense to such a charge.

There are problems with that statement. One incidence of theft many years previously arguably does not make someone a “thief”. To be true a statement needs to be directed at the facts. On X date, I saw him take a widget from PLACE. You are calling somebody dishonest NOW when all you have is an event that you can say the person was dishonest THEN.

A person who acted dishonestly a long time ago and who hasn’t done anything dishonest since arguably can’t truthfully be described as a “thief”.

What would you think if somebody called somebody else a thief? To me, the implication is that they are in the habit of taking things that don’t belong to them and are doing that as of today. It does not bring to mind a one-off event many years previously. It would harm the person’s current reputation, for sure.

That sounds like a semantic argument not a legal one. If I saw someone steal something I would think that is enough to cover calling him a thief for the purposes of defending a slander accusation.

Is being a thief different than other criminal activities? You murder someone 20 years ago you are a murderer. You rape someone 20 years ago you are a rapist. How recent does the activity have to be for the label to be valid?

Anyway that isn’t the heart of the discussion. Joey posts on Facebook “I saw Bob steal.” Bob says “I’m suing for libel!” No mention of that naughty word thief. Substitute in any crime you wish. I picked theft randomly. The incident that made me think of this question and which it’s loosely based off of was a case of lewdness. As a legal principle I don’t see how the particulars of the original case matter. The question is if the expungement of the record has any effect on a lawsuit for slander/libel.