Do I have any rights if a Public Housing Authority (PHA) or owner of government-assisted housing rejects my rental application because of a background check/ tenant report?

Yes. The PHA or landlord must give you an “adverse action” notice letting you know it plans to take an action that could harm you based on information that showed up in your tenant report/background check.[1318] The notice must include the following information:

    The name and contact for the company that supplied the report;
    A statement that the landlord, not the screening company, made the adverse decision; and
    Notice of your right to dispute the accuracy of the report and to receive a free copy of your report within 60 days.[1319]

EXTRA PROTECTIONS for the Public Housing program and the “Section 8” Housing Choice Voucher program ONLY:

ONLY for these two government-assisted programs, PHAs must follow certain extra rules (set forth below).

    The PHA must make sure the criminal records are true and accurate. After the PHA has you sign a release of criminal records information and submits that release to the law enforcement agency that holds the criminal records, it may receive a response that there is a match based on your name, date of birth, and social security number. The PHA cannot deny admission based on this information alone; the PHA must verify the match with a positive fingerprint comparison.[1320]The PHA must give you notice of any proposed action that could harm you. A PHA must notify the household of any proposed action that could harm you (called an “adverse action” notice). The PHA must also provide a copy of the criminal record information to the person who was the subject of the record—as well as to the applicant, if that’s a different person.[1321]The PHA must give you an opportunity to challenge the criminal record information. The person whose information was relied on must be given an opportunity to dispute the proposed negative action.[1322] NOTE: Even if you don’t have an automatic legal right to a review hearing, you can always ask for one! To learn more about challenging a denial to government-assisted housing, please go to PG. 364.The PHA Must Protect the Confidentiality of Your Records:[1323] Under federal law, PHAs must have a system to: (1) Protect the confidentiality of applicants’ criminal records; (2) Guard against improper sharing of those records; AND (3) Destroy the records once their purpose has been achieved.[1324]

NEW POLICY FOR LOS ANGELES RESIDENTS: As of 2018, if you live in the City of Los Angeles and are applying to the Section 8 voucher program, the local Housing Authority will no longer consider elibility criteria related to your criminal background (except where mandated by the federal government).[1325]

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your rights against ILLEGAL ACCESS of your criminal RECORDS as you apply for GOVERNMENT-ASSISTED HOUSING:

  1. 1318

    Cal. Civ. Code § 1786.40; 42 U.S.C. § 1437d(q)(2). ↑

  2. 1319

    42 U.S.C. § 1437d(q)(2). ↑

  3. 1320

    Instructions for Obtaining Federal Bureau of Investigation Criminal History Information, PIH 2003-11(HA) (Apr. 11, 2003) ¶ 7. ↑

  4. 1321

    42 U.S.C. § 1437d(q)(2). There are conflicting interests involved in providing the criminal record to both the applicant and the member of the family subject to the criminal record. The FBI “commented that dissemination of criminal records is limited to those with authorization (such as the PHA) and the person who is the ‘subject’ of the record, not to other persons in the household.” 66 Fed. Reg. 28,776, 28,789 (May 24, 2001). HUD disagreed, contending that under its statutory authority, it is required to provide the information to the applicant or tenant so that the applicant or tenant may dispute the determination. ↑

  5. 1322

    42 U.S.C. § 1437d(q)(2); 24 C.F.R. § 5.903(f); see also 42 U.S.C. §§ 960.204(c), 966.4(l)(5)(iv) (public housing) and 982.553(d) (voucher). The notice and opportunity to contest must also be provided in the case of an eviction or lease enforcement action. ↑

  6. 1323

    Special Note for Advocates: The statutory language shows a policy concern that PHAs maintain the confidentiality of criminal records obtained through the federally authorized process. However, the regulation states that it is not applicable to public information or to criminal records information obtained from law enforcement agencies if the information was not sought pursuant to the regulations. 24 C.F.R. §§ 5.901(c), 5.905(c)(2). This exemption may be too broad. The meaning and full effect of the exclusion and its consistency with the statute has not been tested. The concern is that this may mean that if a PHA obtains information from a private consumer reports agency, it may not have to abide by the confidentiality provisions of the statute. 15 U.S.C. §§ 1681-1681u. Additionally, the confidentiality provisions of the statute most likely do not cover information the PHA or owner obtains from other sources, such as police blotters and newspaper reports. Nevertheless, advocates should argue that any information obtained from law enforcement agencies that is not otherwise publicly available should be subject to the statutory protections. 24 C.F.R. § 5.901(c). With respect to the management of the records, the statute references “any criminal records received,” whereas other provisions of the statute are limited to information received under the subsection. 42 U.S.C. § 1437d(q), § 13663(f); see also 24 C.F.R. § 982.307(b)(2) (PHA may provide voucher landlords information in PHA files). ↑

  7. 1324

    42 U.S.C. § 1437d(q)(4), (6); 24 C.F.R. § 5.903(h). ↑

  8. 1325

    Housing Authority of Los Angeles, 2018 Administrative Plan, Response to Comments, p. 9, available at http://home.hacla.org/publicdocs. ↑