Florida Senate - 2017                CS for CS for CS for SB 450
       
       
        
       By the Committees on Appropriations; Governmental Oversight and
       Accountability; and Criminal Justice; and Senator Brandes
       
       
       
       
       576-03794-17                                           2017450c3
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s. 901.40,
    3         F.S.; creating an exemption from public records
    4         requirements for the personal identifying information
    5         of adults who participate in a civil citation or
    6         prearrest diversion program; providing applicability;
    7         providing retroactive application; providing for
    8         future review and repeal of the exemption; providing a
    9         statement of public necessity; amending s. 943.0586,
   10         F.S.; providing applicability for the administrative
   11         sealing of specified criminal history records;
   12         amending s. 943.059, F.S.; expanding an existing
   13         public records exemption to include the administrative
   14         sealing of specified criminal history records;
   15         conforming provisions to changes made by the act;
   16         providing for future review and repeal of the expanded
   17         exemption; providing for reversion of specified
   18         language if the exemption is not saved from repeal;
   19         providing a statement of public necessity; providing
   20         effective dates, including contingent effective dates.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Effective upon the same date that SB 448 or
   25  similar legislation takes effect, if such legislation is adopted
   26  in the same legislative session or an extension thereof and
   27  becomes a law, subsection (6) is added to section 901.40,
   28  Florida Statutes, as created by SB 448, 2017 Regular Session, to
   29  read:
   30         901.40 Prearrest diversion programs.—
   31         (6)PUBLIC RECORDS EXEMPTION.—The personal identifying
   32  information of an adult participating in a civil citation or
   33  prearrest diversion program is exempt from s. 119.07(1) and s.
   34  24(a), Art. I of the State Constitution. The exemption does not
   35  apply to the personal identifying information of an adult who
   36  fails to complete the civil citation or prearrest diversion
   37  program. This exemption applies to personal identifying
   38  information held by a law enforcement agency, a program services
   39  provider, a clerk of the circuit court, or the entity operating
   40  an adult civil citation or prearrest diversion program before,
   41  on, or after the effective date of this exemption. This
   42  subsection is subject to the Open Government Sunset Review Act
   43  in accordance with s. 119.15 and shall stand repealed on October
   44  2, 2022, unless reviewed and saved from such repeal through
   45  reenactment by the Legislature.
   46         Section 2. Effective upon the same date that SB 448 or
   47  similar legislation takes effect, if such legislation is adopted
   48  in the same legislative session or an extension thereof and
   49  becomes a law: The Legislature finds that it is a public
   50  necessity that the personal identifying information of an adult
   51  participating in a civil citation or prearrest diversion program
   52  be exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
   53  Article I of the State Constitution. The exemption does not
   54  apply to the personal identifying information of an adult who
   55  fails to complete the civil citation or prearrest diversion
   56  program. The goal of such programs is to give a second chance to
   57  adults who commit misdemeanor offenses and allow them the
   58  opportunity to avoid having an arrest record. Such goal would be
   59  defeated if the personal identifying information of such adults
   60  were not exempt from disclosure and, consequently, would create
   61  negative consequences for these adults. If the public were able
   62  to obtain the personal identifying information of these adults,
   63  the disclosure might adversely impact the civil citation or
   64  prearrest diversion program. For these reasons, the Legislature
   65  finds that it is a public necessity that the personal
   66  identifying information of an adult participating in a civil
   67  citation or prearrest diversion program be exempt from public
   68  records requirements.
   69         Section 3. Effective July 1, 2018, and only if SB 118 or
   70  similar legislation is adopted in the same legislative session
   71  or an extension thereof and becomes a law, subsection (2) is
   72  added to section 943.0586, Florida Statutes, as created by SB
   73  118, 2017 Regular session, to read:
   74         943.0586 Administrative sealing of criminal history
   75  records.—
   76         (2) The sealing under this section of a criminal history
   77  record has the same effect as a sealing under s. 943.059(4).
   78         Section 4. Effective July 1, 2018, and only if SB 118 or
   79  similar legislation is adopted in the same legislative session
   80  or an extension thereof and becomes a law, subsection (4) of
   81  section 943.059, Florida Statues, is amended to read:
   82         943.059 Court-ordered sealing of criminal history records.
   83  The courts of this state shall continue to have jurisdiction
   84  over their own procedures, including the maintenance, sealing,
   85  and correction of judicial records containing criminal history
   86  information to the extent such procedures are not inconsistent
   87  with the conditions, responsibilities, and duties established by
   88  this section. Any court of competent jurisdiction may order a
   89  criminal justice agency to seal the criminal history record of a
   90  minor or an adult who complies with the requirements of this
   91  section. The court shall not order a criminal justice agency to
   92  seal a criminal history record until the person seeking to seal
   93  a criminal history record has applied for and received a
   94  certificate of eligibility for sealing pursuant to subsection
   95  (2). A criminal history record that relates to a violation of s.
   96  393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03,
   97  s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071,
   98  chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135,
   99  s. 916.1075, a violation enumerated in s. 907.041, or any
  100  violation specified as a predicate offense for registration as a
  101  sexual predator pursuant to s. 775.21, without regard to whether
  102  that offense alone is sufficient to require such registration,
  103  or for registration as a sexual offender pursuant to s.
  104  943.0435, may not be sealed, without regard to whether
  105  adjudication was withheld, if the defendant was found guilty of
  106  or pled guilty or nolo contendere to the offense, or if the
  107  defendant, as a minor, was found to have committed or pled
  108  guilty or nolo contendere to committing the offense as a
  109  delinquent act. The court may only order sealing of a criminal
  110  history record pertaining to one arrest or one incident of
  111  alleged criminal activity, except as provided in this section.
  112  The court may, at its sole discretion, order the sealing of a
  113  criminal history record pertaining to more than one arrest if
  114  the additional arrests directly relate to the original arrest.
  115  If the court intends to order the sealing of records pertaining
  116  to such additional arrests, such intent must be specified in the
  117  order. A criminal justice agency may not seal any record
  118  pertaining to such additional arrests if the order to seal does
  119  not articulate the intention of the court to seal records
  120  pertaining to more than one arrest. This section does not
  121  prevent the court from ordering the sealing of only a portion of
  122  a criminal history record pertaining to one arrest or one
  123  incident of alleged criminal activity. Notwithstanding any law
  124  to the contrary, a criminal justice agency may comply with laws,
  125  court orders, and official requests of other jurisdictions
  126  relating to sealing, correction, or confidential handling of
  127  criminal history records or information derived therefrom. This
  128  section does not confer any right to the sealing of any criminal
  129  history record, and any request for sealing a criminal history
  130  record may be denied at the sole discretion of the court.
  131         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  132  history record of a minor or an adult which is ordered sealed by
  133  a court pursuant to this section or sealed administratively
  134  pursuant to s. 943.0586 is confidential and exempt from the
  135  provisions of s. 119.07(1) and s. 24(a), Art. I of the State
  136  Constitution and is available only to the person who is the
  137  subject of the record, to the subject’s attorney, to criminal
  138  justice agencies for their respective criminal justice purposes,
  139  which include conducting a criminal history background check for
  140  approval of firearms purchases or transfers as authorized by
  141  state or federal law, to judges in the state courts system for
  142  the purpose of assisting them in their case-related
  143  decisionmaking responsibilities, as set forth in s. 943.053(5),
  144  or to those entities set forth in subparagraphs (a)1., 4., 5.,
  145  6., 8., 9., and 10. for their respective licensing, access
  146  authorization, and employment purposes.
  147         (a) The subject of a criminal history record sealed under
  148  this section, s. 943.0586, or under other provisions of law,
  149  including former s. 893.14, former s. 901.33, and former s.
  150  943.058, may lawfully deny or fail to acknowledge the arrests
  151  covered by the sealed record, except when the subject of the
  152  record:
  153         1. Is a candidate for employment with a criminal justice
  154  agency;
  155         2. Is a defendant in a criminal prosecution;
  156         3. Concurrently or subsequently petitions for relief under
  157  this section, s. 943.0583, or s. 943.0585;
  158         4. Is a candidate for admission to The Florida Bar;
  159         5. Is seeking to be employed or licensed by or to contract
  160  with the Department of Children and Families, the Division of
  161  Vocational Rehabilitation within the Department of Education,
  162  the Agency for Health Care Administration, the Agency for
  163  Persons with Disabilities, the Department of Health, the
  164  Department of Elderly Affairs, or the Department of Juvenile
  165  Justice or to be employed or used by such contractor or licensee
  166  in a sensitive position having direct contact with children, the
  167  disabled, or the elderly;
  168         6. Is seeking to be employed or licensed by the Department
  169  of Education, a district school board, a university laboratory
  170  school, a charter school, a private or parochial school, or a
  171  local governmental entity that licenses child care facilities;
  172         7. Is attempting to purchase a firearm from a licensed
  173  importer, licensed manufacturer, or licensed dealer and is
  174  subject to a criminal history check under state or federal law;
  175         8. Is seeking to be licensed by the Division of Insurance
  176  Agent and Agency Services within the Department of Financial
  177  Services;
  178         9. Is seeking to be appointed as a guardian pursuant to s.
  179  744.3125; or
  180         10. Is seeking to be licensed by the Bureau of License
  181  Issuance of the Division of Licensing within the Department of
  182  Agriculture and Consumer Services to carry a concealed weapon or
  183  concealed firearm. This subparagraph applies only in the
  184  determination of an applicant’s eligibility under s. 790.06.
  185         (b) Subject to the exceptions in paragraph (a), a person
  186  who has been granted a sealing under this section, s. 943.0586,
  187  former s. 893.14, former s. 901.33, or former s. 943.058 may not
  188  be held under any provision of law of this state to commit
  189  perjury or to be otherwise liable for giving a false statement
  190  by reason of such person’s failure to recite or acknowledge a
  191  sealed criminal history record.
  192         (c) Information relating to the existence of a sealed
  193  criminal record provided in accordance with the provisions of
  194  paragraph (a) is confidential and exempt from the provisions of
  195  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  196  except that the department shall disclose the sealed criminal
  197  history record to the entities set forth in subparagraphs (a)1.,
  198  4., 5., 6., 8., 9., and 10. for their respective licensing,
  199  access authorization, and employment purposes. An employee of an
  200  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  201  subparagraph (a)5., subparagraph (a)6., subparagraph (a)8.,
  202  subparagraph (a)9., or subparagraph (a)10. may not disclose
  203  information relating to the existence of a sealed criminal
  204  history record of a person seeking employment, access
  205  authorization, or licensure with such entity or contractor,
  206  except to the person to whom the criminal history record relates
  207  or to persons having direct responsibility for employment,
  208  access authorization, or licensure decisions. A person who
  209  violates the provisions of this paragraph commits a misdemeanor
  210  of the first degree, punishable as provided in s. 775.082 or s.
  211  775.083.
  212         (d) The expansion of the public records exemption under
  213  this subsection to include records sealed administratively under
  214  s. 943.0586 is subject to the Open Government Sunset Review Act
  215  in accordance with s. 119.15 and shall stand repealed on October
  216  2, 2023, unless reviewed and saved from repeal through
  217  reenactment by the Legislature. If the expansion of the
  218  exemption is not saved from repeal, this subsection shall revert
  219  to that in existence on June 30, 2017, except that any
  220  amendments to such text other than by this act shall be
  221  preserved and continue to operate to the extent that such
  222  amendments are not dependent upon the portions of text which
  223  expire pursuant to this paragraph.
  224         Section 5. Effective July 1, 2018, and only if SB 118 or
  225  similar legislation is adopted in the same legislative session
  226  or an extension thereof and becomes a law: The Legislature finds
  227  that it is a public necessity that the criminal history records
  228  of a minor or an adult, which have been administratively sealed
  229  pursuant to s. 943.0586, Florida Statutes, because the case was
  230  not filed, was dismissed or nolle prosequi, or resulted in the
  231  granting of a judgment of acquittal or verdict of not guilty, be
  232  made confidential and exempt from s. 119.07(1), Florida
  233  Statutes, and s. 24(a), Article I of the State Constitution. The
  234  presence of a criminal history record in an individual’s past
  235  which has not been validated through criminal proceedings can
  236  jeopardize his or her ability to obtain education, employment,
  237  and other achievements necessary to becoming a productive,
  238  contributing, self-sustaining member of society. Such negative
  239  consequences are unwarranted in cases in which the individual
  240  was not found to have committed the offense that is the subject
  241  of the sealed criminal history record. For these reasons, the
  242  Legislature finds that it is a public necessity that the
  243  criminal history records of a minor or an adult which have been
  244  administratively sealed be confidential and exempt from public
  245  records requirements.
  246         Section 6. Except as otherwise expressly provided in this
  247  act, this act shall take effect on July 1, 2017.