Florida Senate - 2018 SB 692 By Senator Brandes 24-00385-18 2018692__ 1 A bill to be entitled 2 An act relating to public records; amending s. 3 943.059, F.S.; expanding an existing public records 4 exemption to include the administrative sealing of 5 specified criminal history records; conforming 6 provisions to changes made by the act; providing for 7 future review and repeal of the expanded exemption; 8 providing for reversion of specified language if the 9 exemption is not saved from repeal; providing a 10 statement of public necessity; providing a contingent 11 effective date. 12 13 Be It Enacted by the Legislature of the State of Florida: 14 15 Section 1. Subsection (4) of section 943.059, Florida 16 Statues, is amended to read: 17 943.059 Court-ordered sealing of criminal history records. 18 The courts of this state shall continue to have jurisdiction 19 over their own procedures, including the maintenance, sealing, 20 and correction of judicial records containing criminal history 21 information to the extent such procedures are not inconsistent 22 with the conditions, responsibilities, and duties established by 23 this section. Any court of competent jurisdiction may order a 24 criminal justice agency to seal the criminal history record of a 25 minor or an adult who complies with the requirements of this 26 section. The court shall not order a criminal justice agency to 27 seal a criminal history record until the person seeking to seal 28 a criminal history record has applied for and received a 29 certificate of eligibility for sealing pursuant to subsection 30 (2). A criminal history record that relates to a violation of s. 31 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, 32 s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, 33 chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, 34 s. 916.1075, a violation enumerated in s. 907.041, or any 35 violation specified as a predicate offense for registration as a 36 sexual predator pursuant to s. 775.21, without regard to whether 37 that offense alone is sufficient to require such registration, 38 or for registration as a sexual offender pursuant to s. 39 943.0435, may not be sealed, without regard to whether 40 adjudication was withheld, if the defendant was found guilty of 41 or pled guilty or nolo contendere to the offense, or if the 42 defendant, as a minor, was found to have committed or pled 43 guilty or nolo contendere to committing the offense as a 44 delinquent act. The court may only order sealing of a criminal 45 history record pertaining to one arrest or one incident of 46 alleged criminal activity, except as provided in this section. 47 The court may, at its sole discretion, order the sealing of a 48 criminal history record pertaining to more than one arrest if 49 the additional arrests directly relate to the original arrest. 50 If the court intends to order the sealing of records pertaining 51 to such additional arrests, such intent must be specified in the 52 order. A criminal justice agency may not seal any record 53 pertaining to such additional arrests if the order to seal does 54 not articulate the intention of the court to seal records 55 pertaining to more than one arrest. This section does not 56 prevent the court from ordering the sealing of only a portion of 57 a criminal history record pertaining to one arrest or one 58 incident of alleged criminal activity. Notwithstanding any law 59 to the contrary, a criminal justice agency may comply with laws, 60 court orders, and official requests of other jurisdictions 61 relating to sealing, correction, or confidential handling of 62 criminal history records or information derived therefrom. This 63 section does not confer any right to the sealing of any criminal 64 history record, and any request for sealing a criminal history 65 record may be denied at the sole discretion of the court. 66 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal 67 history record of a minor or an adult which is ordered sealed by 68 a court pursuant to this section or sealed administratively 69 pursuant to s. 943.0586 is confidential and exempt from the 70 provisions of s. 119.07(1) and s. 24(a), Art. I of the State 71 Constitution and is available only to the person who is the 72 subject of the record, to the subject’s attorney, to criminal 73 justice agencies for their respective criminal justice purposes, 74 which include conducting a criminal history background check for 75 approval of firearms purchases or transfers as authorized by 76 state or federal law, to judges in the state courts system for 77 the purpose of assisting them in their case-related 78 decisionmaking responsibilities, as set forth in s. 943.053(5), 79 or to those entities set forth in subparagraphs (a)1., 4., 5., 80 6., 8., 9., and 10. for their respective licensing, access 81 authorization, and employment purposes. 82 (a) The subject of a criminal history record sealed under 83 this section, s. 943.0586, or under other provisions of law, 84 including former s. 893.14, former s. 901.33, and former s. 85 943.058, may lawfully deny or fail to acknowledge the arrests 86 covered by the sealed record, except when the subject of the 87 record: 88 1. Is a candidate for employment with a criminal justice 89 agency; 90 2. Is a defendant in a criminal prosecution; 91 3. Concurrently or subsequently petitions for relief under 92 this section, s. 943.0583, or s. 943.0585; 93 4. Is a candidate for admission to The Florida Bar; 94 5. Is seeking to be employed or licensed by or to contract 95 with the Department of Children and Families, the Division of 96 Vocational Rehabilitation within the Department of Education, 97 the Agency for Health Care Administration, the Agency for 98 Persons with Disabilities, the Department of Health, the 99 Department of Elderly Affairs, or the Department of Juvenile 100 Justice or to be employed or used by such contractor or licensee 101 in a sensitive position having direct contact with children, the 102 disabled, or the elderly; 103 6. Is seeking to be employed or licensed by the Department 104 of Education, a district school board, a university laboratory 105 school, a charter school, a private or parochial school, or a 106 local governmental entity that licenses child care facilities; 107 7. Is attempting to purchase a firearm from a licensed 108 importer, licensed manufacturer, or licensed dealer and is 109 subject to a criminal history check under state or federal law; 110 8. Is seeking to be licensed by the Division of Insurance 111 Agent and Agency Services within the Department of Financial 112 Services; 113 9. Is seeking to be appointed as a guardian pursuant to s. 114 744.3125; or 115 10. Is seeking to be licensed by the Bureau of License 116 Issuance of the Division of Licensing within the Department of 117 Agriculture and Consumer Services to carry a concealed weapon or 118 concealed firearm. This subparagraph applies only in the 119 determination of an applicant’s eligibility under s. 790.06. 120 (b) Subject to the exceptions in paragraph (a), a person 121 who has been granted a sealing under this section, s. 943.0586, 122 former s. 893.14, former s. 901.33, or former s. 943.058 may not 123 be held under any provision of law of this state to commit 124 perjury or to be otherwise liable for giving a false statement 125 by reason of such person’s failure to recite or acknowledge a 126 sealed criminal history record. 127 (c) Information relating to the existence of a sealed 128 criminal record provided in accordance with the provisions of 129 paragraph (a) is confidential and exempt from the provisions of 130 s. 119.07(1) and s. 24(a), Art. I of the State Constitution, 131 except that the department shall disclose the sealed criminal 132 history record to the entities set forth in subparagraphs (a)1., 133 4., 5., 6., 8., 9., and 10. for their respective licensing, 134 access authorization, and employment purposes. An employee of an 135 entity set forth in subparagraph (a)1., subparagraph (a)4., 136 subparagraph (a)5., subparagraph (a)6., subparagraph (a)8., 137 subparagraph (a)9., or subparagraph (a)10. may not disclose 138 information relating to the existence of a sealed criminal 139 history record of a person seeking employment, access 140 authorization, or licensure with such entity or contractor, 141 except to the person to whom the criminal history record relates 142 or to persons having direct responsibility for employment, 143 access authorization, or licensure decisions. A person who 144 violates the provisions of this paragraph commits a misdemeanor 145 of the first degree, punishable as provided in s. 775.082 or s. 146 775.083. 147 (d) The expansion of the public records exemption under 148 this subsection to include records sealed administratively under 149 s. 943.0586 is subject to the Open Government Sunset Review Act 150 in accordance with s. 119.15 and shall stand repealed on October 151 2, 2023, unless reviewed and saved from repeal through 152 reenactment by the Legislature. If the expansion of the 153 exemption is not saved from repeal, this subsection shall revert 154 to that in existence on June 30, 2018, except that any 155 amendments to such text other than by this act shall be 156 preserved and continue to operate to the extent that such 157 amendments are not dependent upon the portions of text which 158 expire pursuant to this paragraph. 159 Section 2. The Legislature finds that it is a public 160 necessity that the criminal history records of a minor or an 161 adult which have been administratively sealed pursuant to s. 162 943.0586, Florida Statutes, because a case was not filed, was 163 dismissed or nolle prosequi, or resulted in the granting of a 164 judgment of acquittal or verdict of not guilty be made 165 confidential and exempt from s. 119.07(1), Florida Statutes, and 166 s. 24(a), Article I of the State Constitution. The presence of a 167 criminal history record in an individual’s past which has not 168 been validated through criminal proceedings can jeopardize his 169 or her ability to obtain education, employment, and other 170 opportunities necessary to becoming a productive, contributing, 171 self-sustaining member of society. Such negative consequences 172 are unwarranted in cases in which the individual was not found 173 to have committed the offense that is the subject of the sealed 174 criminal history record. For these reasons, the Legislature 175 finds that it is a public necessity that the criminal history 176 records of a minor or an adult which have been administratively 177 sealed be confidential and exempt from public records 178 requirements. 179 Section 3. This act shall take effect on the same date that 180 SB ____ or similar legislation takes effect, if such legislation 181 is adopted in the same legislative session or an extension 182 thereof and becomes law.