1. Introduction
In the Philippines, the National Bureau of Investigation (NBI) is the primary government agency tasked with maintaining a centralized criminal-history repository and providing “clearance” to prove that an individual is free from any pending criminal record or derogatory information. In day-to-day speech, “NBI clearance” and “NBI records check” are often used interchangeably. Legally, however, there is an important distinction:
| Term | What it is | Typical Requestor | Governing Instrument |
|---|---|---|---|
| NBI Clearance | A public‐facing certificate issued to an individual after his/her fingerprints, biometrics, and identity are run against the entire NBI information system. It states either “No Record on File” or lists a “Hit.” | Citizens, foreign residents, employers, embassies, banks, schools | NBI Memorandum Orders (MO-20-18 & MO-20-19); DOF-DFA-DOLE circulars |
| NBI Records Check (a.k.a. verification, back-grounding or derogatory-data retrieval) | A back-office query run by the NBI (or by any law-enforcement unit allowed read-access) against the database without issuing a clearance certificate to the subject. The result is shared only with the requesting agency. | Law-enforcement units, courts, Anti-Money Laundering Council (AMLC), Commission on Elections (COMELEC), Intelligence units, select foreign liaison offices | Republic Act No. 10867 (NBI Reorganization Act), Department of Justice (DOJ) Department Circular No. 006-2016, Anti-Money Laundering Act (RA 9160, as amended), Supreme Court A.M. No. 02-11-5-SC |
This article explains everything a lawyer, HR officer, compliance professional, or ordinary citizen needs to know about NBI records checks conducted without the issuance of an NBI clearance.
2. Statutory Basis
- RA 10867, §11(e) – empowers the NBI to “establish and maintain an up-to-date database of fingerprints, DNA profiles, and criminal records, and to furnish any government agency such information when required by law or by order of a competent court.”
- Data Privacy Act of 2012 (RA 10173) – classifies criminal history as sensitive personal information (Sec. 3(l)(2)). The NBI, being a personal-information controller (PIC), may process and disclose such data without the subject’s consent only when:
- the disclosure is “necessary for law-enforcement or regulatory function” (Sec. 12(e)); or
- there is a court or quasi-judicial subpoena, legally mandated sharing, or legitimate exercise of the functions of public authority (Sec. 13(b)(c)).
- Rules on Criminal Procedure, Rule 112, §1(b) – allows investigating prosecutors to request criminal-history data from any government instrumentality.
- Anti-Money Laundering Act, as amended by RA 11521 – obliges the NBI to furnish derogatory data when AMLC conducts Customer Due Diligence or applies for a freeze order.
3. Who May Request a Records Check (Without Clearance)
| Allowed Requestor | Legal Route | Remarks |
|---|---|---|
| Regular courts | Subpoena duces tecum; or Order under Rules of Court | Usually for bail petitions, criminal identification, or probation reports |
| Office of the Prosecutor | Letter-request citing Rule 112 | For preliminary investigation, inquest, or reinvestigation |
| Law-Enforcement Agencies (PNP, PDEA, BI, Customs) | Memorandum of Agreement (MOA) with NBI or Joint Tactical Intel | Must have case reference; fishing expeditions barred by RA 10173 |
| AMLC / BSP / SEC | Statutory mandate under AMLA, Terrorism Financing Prevention Act | Primarily for Enhanced Due Diligence |
| COMELEC | Voter-fraud probes; “Operation Baklas” | Valid only for election offenses |
| Foreign Law-Enforcement Liaison | Mutual Legal Assistance Treaty (MLAT) or Interpol red-notice request | Routed through NBI-Interpol Division |
| HR/Private Employers / Banks | Not allowed without the applicant’s participation; must require the person to present his own NBI clearance | Doing otherwise violates RA 10173 and Labor Advisory No. 06-2020 |
Key Point: No Philippine law allows a private corporation to run a “silent” NBI records check on an applicant or employee without his knowledge. They may only require the presentation of a clearance that the subject personally obtained.
4. Procedural Flow
- Submission of Request
- Agency transmits Letter of Request or e-subpoena to the NBI Information & Communication Technology Division (ICTD) stating legal basis, case numbers, and scope (e.g., “Please verify if Juan Dela Cruz y Santos, born 4 Feb 1990, has any pending or convicted cases in the NBI database”).
- Verification by ICTD
- Biometric data, if supplied, undergo fingerprint matching (Automated Fingerprint Identification System—AFIS) and name‐based fuzzy search (Soundex).
- Evaluation of “Hits”
- “Possible Hit” – common names, non-exact match; requires manual adjudication by Records Management Division.
- “Verified Hit” – exact biometric match to a criminal record, warrant, or “watch-list.”
- Approval & Release
- ICTD Chief or duly delegated officer signs Verification Report (not a clearance). If a watch-list flag exists, the subject is referred to the division that tagged him (e.g., Counter-Terrorism Division).
- Retention & Audit
- Under Sec. 21, RA 10867, the NBI must “keep audit logs for ten (10) years” of all queries, indicating agency, time stamp, case reference, and purpose. The logs are subject to Commission on Audit (COA) review.
5. Individual Rights and Remedies
| Right | Source | How to Exercise |
|---|---|---|
| Right to be Informed | Sec. 16(a), RA 10173 | In general, law-enforcement requests are exempt. However, when the records check leads to adverse action (e.g., arrest, denial of application), the individual must be informed of the factual bases. |
| Right to Access & Correction | Sec. 16(b-c), RA 10173 | The subject may file an NBI Query/Correction Form at any NBI Clearance Center. If the hit is due to mistaken identity, a “Positive Hit Certification” may be issued after adjudication. |
| Right to File a Complaint | Sec. 16(f), RA 10173; Sec. 37, RA 10867 | Complaints against improper disclosure go to the National Privacy Commission (NPC) or the Office of the Ombudsman (for public officers). |
| Expungement / Record Purging | MO-20-19; DOJ Opinion No. 19-2019 | Upon submission of a final dismissal, acquittal, or order of release, a record can be tagged “purged.” Physical deletion is not immediate; the record is simply masked from standard queries. |
6. Common Practical Scenarios
“Silent” Background Check by a Bank Compliance Unit
- Not allowed. The Anti-Money Laundering Council may do so, but a private bank must ask the client to obtain an NBI clearance. Doing otherwise violates NPC Advisory Opinion 2018-13 (limited-purpose processing).
Police Officer Checks a Person of Interest Using Personal Credentials
- This is “unauthorized processing” (Sec. 25, RA 10173) and grave misconduct (A.O. No. 07, s. 2022, “Enhanced PNP Disciplinary Guidelines”). Penalty: dismissal and criminal prosecution.
Employer Wants to Re-Verify Existing Employees Annually
- Must secure the employee’s written consent or, more prudently, instruct employees to renew their own NBI clearance each year.
Immigration Visa Screening by a Foreign Embassy
- Embassy requires the applicant to submit an NBI clearance (self-procured). Separately, some embassies have an MLAT with the Philippines and can request back-channel verification through DFA-OPLAN. The applicant is usually not told about that second layer.
7. Jurisprudence and Administrative Issuances
| Case / Opinion | Gist |
|---|---|
| People v. Doria (G.R. No. 125299, Jan. 22 1999) | Illegally obtained police blotter entries and photographs were inadmissible; underscores need for proper record acquisition. |
| NPC CID-Decision No. 19-002 (2019) | A policeman who accessed the NBI database using a colleague’s login was found guilty of unauthorized processing. |
| DOLE Labor Advisory No. 06-2020 | Employers may require NBI clearance but must shoulder the cost if mandated after hiring. |
| SC A.M. No. 02-11-5-SC (Rule on DNA Evidence) | NBI must preserve DNA samples and match data, reinforcing its custodial responsibility over criminal records. |
8. Compliance Checklist for Agencies Requesting a Records Check
- Confirm Statutory Authority. Cite the specific law, rule, or subpoena.
- Use Official Channels. Send the request through agency liaison; do not rely on personal contacts.
- Limit the Scope. Specify the time period, offense category, and purpose (data-minimization).
- Maintain Audit Logs. Record who accessed what, when, and why, and keep logs for at least ten (10) years.
- Observe Need-to-Know. Do not re-disclose beyond the authorized recipients.
- Secure Documents. Classification marking is recommended (e.g., “For Official Use Only – Law Enforcement Sensitive”).
9. Policy Gaps and Pending Reforms
- House Bill No. 10457 (19th Congress) – proposes direct-to-employer electronic verification (with the applicant’s one-time PIN consent) to eliminate fake clearances.
- NBI ICT Modernization Roadmap 2024-2028 – envisions integration with the PhilSys National ID, allowing real-time watch-list hits and automated notice to subjects after the fact, giving them opportunity to contest.
- NPC Draft Circular on Law-Enforcement Processing (public consultation as of March 2025) – will standardize audit and breach-notification requirements for all criminal-history systems, including the NBI database.
10. Key Takeaways
- An NBI records check without clearance is lawful only when done by a government body with clear legal mandate, or upon court order.
- Private entities cannot run silent checks; they must ask the individual to procure and submit an NBI clearance.
- Data-privacy safeguards (purpose limitation, proportionality, transparency via post-action notice) apply even to law-enforcement queries.
- Mistaken identification is common. Citizens should know the “Positive Hit Certification” and record-purging procedures to clear their names.
- Auditability is mandatory. Agencies that fail to log or that misuse NBI data face administrative, civil, and criminal penalties.
Suggested Action for Readers
If you are (a) drafting an HR policy, (b) designing a compliance program, or (c) representing a client who believes his data was accessed without authority, start by mapping the process against Sections 11 and 21 of RA 10867 and Sections 12–13 of RA 10173. These provisions form the backbone of lawful, accountable, and privacy-respecting NBI records checks in the Philippines.