As noted in the section on who is allowed to see CORI, public housing authorities have access to CORI for screening applicants for public housing and for "section 8" and other housing subsidies.

A public housing authority (PHA), when screening an applicant for public housing funded by the STATE Department of Housing and Community Development (DHCD), must follow the governing statute and DHCD regulations as to how it makes its screening decision. The PHA, for instance, may disqualify an applicant who, in prior housing, has "disturbed a neighbor," or "caused damage or destruction to property," or "engaged in criminal activity," or "is a current illegal user" of drugs^[35], any of which may be indicated by CORI.

These state housing laws also provide the applicant with some due process and a chance to prevent, or reverse, an adverse decision. Prior to disqualifying an applicant the PHA must:

"permit the applicant to show mitigating circumstances, which may include rehabilitation or rehabilitating efforts, sufficient so that when the potentially disqualifying behavior is weighed against the mitigating circumstances, the [PHA] is reasonably certain that the applicant or household member will not engage in any similar conduct in the future."^[36]

If the PHA decides, nevertheless, to disqualify the applicant, it must give him or her notice explaining the decision and a chance to have a "private conference" with representatives of the PHA. This amounts to an informal hearing, where the applicant can be represented by a lawyer or other advocate; and, if the applicant loses this round, he or she may have the adverse decision reviewed by DHCD.^[37]

If the PHA is making a screening decision about admission to a unit which is funded by the FEDERAL Department of Housing and Urban Development (HUD) or about making an award of a federal section 8 certificate, it must follow the applicable HUD regulations.

Under these (so-called "one strike you're out") regulations, the PHA may prohibit the admission of a household, for instance, if any member "has engaged in during a reasonable time before the admissions decision" drug-related or violent criminal activity or criminal activity which would threaten health, safety or peace of other residents, the PHA or its employees or contractors.^[38]

One requirement is that the PHA, if it has obtained CORI "showing that a household member has been convicted of a crime" that is relevant to the screening -

"the PHA must notify the household of the proposed action to be based on the information and must provide the subject of the record and the applicant.. . a copy of such information and an opportunity to dispute the accuracy and relevance of the information. . . before the denial of admission. . .." (Emphasis added.)^[39]

A private landlord (LL) may or may not be required to extend gatekeeper due process to an applicant for tenancy.

If the LL manages a section 8 or other subsidized development, it will often be contracted to "do the CORI checks" and will be bound by the state or federal rules, including, of course, the due process provisions.

But if the LL is acting purely as a private LL and gets its information on the applicant's criminal record from a commercial "background check" organization, the LL will be subject to no due process requirements. This is a virtually unregulated field of activity. Hence, in this situation an applicant for tenancy would be well-advised to ask the LL to share the results of any background check with the applicant and give him or her a chance to discuss it, including to rebut its accuracy and/or its relevance. If the applicant gets such a conference, she should prepare to make her case, using the state PHA mitigating factors (quoted earlier in this Question (9), followed by footnote 35) and, possibly, the more extensive factors in the HHS "common sense process" paragraph in Question 10.

Of course, if the LL gets the information as CORI, from the CHSB, the LL will be subject to the CHSB regulations and hence the due process regulation, 803 CMR 6.11, discussed in Question 6.

But, while there is no provision in the CORI statute which prevents private LLs from being certified for such access to CORI, the CHSB has an unwritten "practice" not to certify private LLs for access to CORI.^[39]

[35]760 CMR § 5.08(2). Also, the 7/1/05 CHSB regulations, 803 CMR § 5.05(9), directs a housing authority to share the CORI it gets with the applicant, if the applicant so requests. Fortunately, the other due process provisions that are in § 6.11 (discussed in the previous section) also apply - because housing authorities get their access to CORI under § 168 of G.L., c. 6, and hence also under § 172(b) . And, under the DHCD reg cited above, the PHA is to consider the severity of the conduct and the danger it caused, how much time has elapsed and the likelihood of its recurring. See also G.L. c. 121B, § 32, 12th [unnumbered] paragraph.

[36] 760 CMR § 5.13. Though this provision for DHCD "review" is vaguely worded, the Mass. Supreme Judicial Court held in Madera v. Secretary of EOCD, 418 Mass. 452 (1994), that the person seeking review is entitled to a full blown adjudicatory hearing before a hearing officer or panel of what is now the DHCD (with the possibility of a further appeal, under G.L. c. 30A, § 14, to the Superior Court).

[37] 24 CFR § 5.855(a). This regulation, in Part 5 of 24 CMR, and related provisions in 9 other Parts, were in the Federal Register of 5/24/01. Since there are variations from Part to Part, it is important to check the Part which pertains to the housing you are dealing with. There is also, in another Part of the regulations, an absolute, lifetime, ban from federal public housing of anyone who was previously convicted of manufacturing methamphetamine while a tenant of federal public housing.

[38] 24 CFR § 5.903(f).

[39] The CHSB executive director states that the Board does not have a written policy as to its practice of not certifying private landlords for access to CORI. Letter from Barry LaCroix to author, 9/18/03.