Massachusetts CORI Law: How Employers and Landlords Access and Use Criminal Records

The CORI Statute, M.G.L. c. 6, §§ 167 to 178

Massachusetts treats criminal record screening as a question of access to a state database rather than, as federal law does, a question about the accuracy of commercial reports. The framework sits in chapter 6 of the General Laws. Section 167 supplies the definitions that apply "in this section or in sections 168 to 178L, inclusive," and the provisions on access, use and penalties run through section 178.

The central definition is narrower than the phrase "criminal record" suggests. Criminal offender record information, or CORI, means records compiled by a Massachusetts criminal justice agency about an identifiable individual relating to the nature or disposition of a criminal charge, an arrest, pre-trial and judicial proceedings, sentencing, incarceration, rehabilitation or release. Section 167 then limits it in four ways: to proceedings not dismissed before arraignment; to persons who had reached 18 (unless the case was adjudicated as an adult); to offenses punishable by incarceration; and to exclude evaluative information, statistical reports and intelligence information.

Two bodies administer the system. Section 167A establishes the Department of Criminal Justice Information Services (DCJIS) within the Executive Office of Public Safety and Security and authorizes it to adopt regulations on requestors' collection, storage, dissemination and use of CORI. Section 168 creates the Criminal Record Review Board, which hears complaints that a person who requested or received CORI failed to give it to the subject before questioning or before an adverse decision, along with other violations of sections 168 to 178A.

Levels of Access Through iCORI

Section 172(a) requires DCJIS to keep CORI in a web-accessible database and then sorts requestors into tiers. Criminal justice agencies receive everything. A requestor authorized or required by a statute, regulation or accreditation requirement receives what that authority calls for. Under paragraph (3), any requestor may obtain CORI to evaluate employees, interns and volunteers, applicants for rental or lease of housing, volunteers for services, and applicants for state or municipal professional licenses. Paragraph (4) gives members of the general public a narrower set.

The DCJIS regulation at 803 CMR 2.05 names those tiers Required Access (itself in four levels), Standard Access and Open Access. The tier most employers and landlords receive is Standard Access:

• All pending criminal charges, including cases continued without a finding until they are dismissed;
• Misdemeanor convictions for five years after the date of disposition or release from incarceration or custody, whichever is later;
• Felony convictions and findings of not guilty by reason of insanity for ten years on the same measure;
• Convictions for murder, voluntary and involuntary manslaughter and sex offenses punishable by state prison, which section 172(b) keeps in the database permanently unless sealed.

There is a carry-forward rule. Under 803 CMR 2.05(4)(b), when a Standard Access request returns a conviction inside one of those windows, the response also includes all of the subject's adult convictions, which tracks the statutory proviso that prior convictions remain available for as long as the last available conviction is. Open Access, available to anyone, returns misdemeanor convictions for one year, felonies punishable by less than five years for two years, and felonies punishable by five years or more for ten years. No tier returns records expunged by court order.

Getting a record requires paperwork first. Section 172(c) requires the requestor to certify under penalties of perjury that it is an authorized designee of a qualifying entity, that the purpose is authorized, and that the subject signed an acknowledgment form, and to certify that it verified the subject's identity from government-issued identification. 803 CMR 2.11 sets out the acknowledgment form, the list of acceptable identification and the fallback documents when a subject has none.

The Employment Application Ban in c. 151B, § 4(9½)

The anti-discrimination statute adds a timing rule on top of the access rules. Chapter 151B, section 4, subsection 9 1/2 makes it an unlawful practice for an employer "to request on its initial written application form criminal offender record information." The prohibition gives way in two situations: where federal or state law or regulation creates a mandatory or presumptive disqualification for the position based on a conviction, and where the employer or an affiliate is legally barred from employing people convicted of certain offenses in one or more positions. In those cases the form may ask about convictions, still subject to subsection 9.

Subsection 9 controls what may be asked at any stage. It makes it unlawful for an employer, in connection with employment, to request information, keep a record of it or use an application form asking about an arrest, detention or disposition in which no conviction resulted; a first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace; a misdemeanor conviction where the conviction or the end of any resulting incarceration was three or more years before the application, unless there has been another conviction in the three years before; or a record sealed or expunged under chapter 276. It also provides that withholding that information is not perjury or a false statement.

Landlords and Housing Decisions

Housing gets its own regulation, 803 CMR 5.00, which applies to landlords, real estate agents, public housing authorities and property management companies that request CORI to screen rental applicants. It draws a line between market-rate and subsidized housing. Market-rate housing, which by definition includes privately owned units whose landlord receives a voucher, is screened with Standard Access under 5.04. Subsidized programs administered by a public housing authority or a qualifying management company use Required Access under 5.05, and chapter 6, section 172(a)(7) separately lets housing authorities organized under chapter 121B obtain conviction and pending-charge information for their own housing.

Several of the housing rules have no employment counterpart:

• CORI may be requested for a housing applicant only "as the final step in the application process" (5.04(2) and 5.05(3)).
• Standard Access CORI may not be used to screen other household members or anyone buying or selling real property (5.04(3)); a landlord may use Open Access to screen someone other than the applicant (5.04(4)).
• CORI obtained to evaluate a rental applicant may be used solely to decide whether to rent to that applicant (5.13(1)).
• A landlord using a consumer reporting agency must give a standalone written notice that a consumer report may be used, obtain a separate written authorization, and may not substitute the CORI acknowledgment form for that authorization (5.15).

Sealed records reach housing applications through a different chapter. Chapter 276, section 100A requires any application used to screen applicants for employment, housing or an occupational or professional license that asks about prior arrests or convictions to include a statement that an applicant with a sealed record on file may answer "no record."

The DCJIS Regulations at 803 CMR 2.00

The general regulation, dated June 11, 2021 on the Trial Court Law Libraries' page for it, governs what happens after a record arrives. Its main obligations for private requestors are these.

• Storage (2.14): hard copies in a separate locked location limited to approved employees; electronic copies password protected and encrypted; cloud storage only under a written agreement meeting DCJIS's published minimum security requirements.
• Retention: section 172(f) bars keeping CORI obtained from DCJIS for more than seven years from the last date of employment, volunteer service or residency or from the final decision on the subject, and 803 CMR 5.08 restates that for housing.
• Policy (2.18): any person or entity conducting five or more criminal background investigations a year, from DCJIS or any other source, maintains a written CORI policy containing all provisions of the DCJIS model policy, and every requestor keeps a "need to know" list of staff authorized to see CORI, updated at least every six months.
• Dissemination (2.19): CORI goes outside the organization only where the law allows, and each such dissemination is either covered by a DCJIS-approved memorandum of understanding or recorded in a secondary dissemination log whose entries are kept for at least seven years and open to DCJIS audit; the housing regulation, 5.12, calls for the log.
• No self-reports (2.10): requiring an individual to produce a copy of his or her own CORI is prohibited except as section 172 authorizes, and section 172(d) makes it unlawful.

Section 172(e) offers employers a conditional protection. An employer relying solely on CORI from DCJIS is not liable for negligent hiring for failing to run additional checks, unless the law requires them, provided it decided within 90 days of obtaining the CORI and followed identity-verification procedures consistent with the statute and the regulations. A parallel clause protects an employer from discrimination liability for a decision based on erroneous DCJIS information on the same conditions.

Adverse Decisions and Notice

Section 171A applies to any decision about employment, volunteer opportunities, housing or professional licensing. A person holding an applicant's criminal history must provide it to the applicant before questioning the applicant about it and, if a decision adverse to the applicant is based on it, with that decision, "whether obtained from the department or any other source." A copy already given before questioning need not be given again. The section also states that it does not prohibit an adverse decision based on criminal history and does not itself create a claim under chapter 151B or an independent cause of action. A person conducting five or more background investigations a year must have a written policy committing to notify the applicant of a potential adverse decision, provide the CORI and the policy, and explain how to correct a record.

The regulations turn that into a checklist. For housing, 803 CMR 5.14(1) requires a landlord, property manager or real estate agent, before taking adverse action based on CORI or other criminal history, to comply with applicable law; notify the applicant of the potential adverse action; if the information came from a consumer reporting agency, provide the pre-adverse action disclosure with a copy of the consumer report and the federal summary of rights; provide the criminal history and disclose its source; provide the CORI policy, if any; identify the information that is the basis for the decision; give the applicant an opportunity to dispute its accuracy; provide DCJIS information on correcting CORI; and document each step. 803 CMR 2.20 lists a nearly identical sequence for employers and volunteer organizations.

The consequences sit in three places. The Criminal Record Review Board, under section 168(b), may impose civil fines payable to the Commonwealth of up to $5,000 for each knowing violation and condition or revoke access. Section 177 lets an aggrieved person sue in superior court for damages or an injunction over violations of sections 168 to 175, with exemplary damages of $100 to $1,000 per willful violation plus costs and attorneys' fees. Section 178 makes it a crime to obtain CORI under false pretenses, communicate it unlawfully, falsify it, or request or require a person to provide his or her own CORI except as section 172 authorizes, punishable by up to a year in jail, a fine of up to $5,000, or both, with fines of up to $50,000 per violation for an entity that is not a natural person.

Frequently Asked Questions