Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. CS for CS for SB 450
       
       
       
       
       
       
                                Ì303428+Î303428                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/13/2017           .                                
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       The Committee on Appropriations (Brandes) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Effective upon the same date that SB 448 or
    6  similar legislation takes effect, if such legislation is adopted
    7  in the same legislative session or an extension thereof and
    8  becomes a law, subsection (6) is added to section 901.40,
    9  Florida Statutes, as created by SB 448, 2017 Regular Session, to
   10  read:
   11         901.40 Prearrest diversion programs.—
   12         (6)PUBLIC RECORDS EXEMPTION.—The personal identifying
   13  information of an adult participating in a civil citation or
   14  prearrest diversion program is exempt from s. 119.07(1) and s.
   15  24(a), Art. I of the State Constitution. The exemption does not
   16  apply to the personal identifying information of an adult who
   17  fails to complete the civil citation or prearrest diversion
   18  program. This exemption applies to personal identifying
   19  information held by a law enforcement agency, a program services
   20  provider, or the entity operating an adult civil citation or
   21  prearrest diversion program before, on, or after the effective
   22  date of this exemption. This subsection is subject to the Open
   23  Government Sunset Review Act in accordance with s. 119.15 and
   24  shall stand repealed on October 2, 2022, unless reviewed and
   25  saved from such repeal through reenactment by the Legislature.
   26         Section 2. Effective upon the same date that SB 448 or
   27  similar legislation takes effect, if such legislation is adopted
   28  in the same legislative session or an extension thereof and
   29  becomes a law: The Legislature finds that it is a public
   30  necessity that the personal identifying information of an adult
   31  participating in a civil citation or prearrest diversion program
   32  be exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
   33  Article I of the State Constitution. The exemption does not
   34  apply to the personal identifying information of an adult who
   35  fails to complete the civil citation or prearrest diversion
   36  program. The goal of such programs is to give a second chance to
   37  adults who commit misdemeanor offenses and allow them the
   38  opportunity to avoid having an arrest record. Such goal would be
   39  defeated if the personal identifying information of such adults
   40  were not exempt from disclosure and, consequently, would create
   41  negative consequences for these adults. If the public were able
   42  to obtain the personal identifying information of these adults,
   43  the disclosure might adversely impact the civil citation or
   44  prearrest diversion program. For these reasons, the Legislature
   45  finds that it is a public necessity that the personal
   46  identifying information of an adult participating in a civil
   47  citation or prearrest diversion program be exempt from public
   48  records requirements.
   49         Section 3. Effective July 1, 2018, and only if SB 118 or
   50  similar legislation is adopted in the same legislative session
   51  or an extension thereof and becomes a law, subsection (2) is
   52  added to section 943.0586, Florida Statutes, as created by SB
   53  118, 2017 Regular session, to read:
   54         943.0586 Administrative sealing of criminal history
   55  records.—
   56         (2) The sealing under this section of a criminal history
   57  record has the same effect as a sealing under s. 943.059(4).
   58         Section 4. Effective July 1, 2018, and only if SB 118 or
   59  similar legislation is adopted in the same legislative session
   60  or an extension thereof and becomes a law, subsection (4) of
   61  section 943.059, Florida Statues, is amended to read:
   62         943.059 Court-ordered sealing of criminal history records.
   63  The courts of this state shall continue to have jurisdiction
   64  over their own procedures, including the maintenance, sealing,
   65  and correction of judicial records containing criminal history
   66  information to the extent such procedures are not inconsistent
   67  with the conditions, responsibilities, and duties established by
   68  this section. Any court of competent jurisdiction may order a
   69  criminal justice agency to seal the criminal history record of a
   70  minor or an adult who complies with the requirements of this
   71  section. The court shall not order a criminal justice agency to
   72  seal a criminal history record until the person seeking to seal
   73  a criminal history record has applied for and received a
   74  certificate of eligibility for sealing pursuant to subsection
   75  (2). A criminal history record that relates to a violation of s.
   76  393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03,
   77  s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071,
   78  chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135,
   79  s. 916.1075, a violation enumerated in s. 907.041, or any
   80  violation specified as a predicate offense for registration as a
   81  sexual predator pursuant to s. 775.21, without regard to whether
   82  that offense alone is sufficient to require such registration,
   83  or for registration as a sexual offender pursuant to s.
   84  943.0435, may not be sealed, without regard to whether
   85  adjudication was withheld, if the defendant was found guilty of
   86  or pled guilty or nolo contendere to the offense, or if the
   87  defendant, as a minor, was found to have committed or pled
   88  guilty or nolo contendere to committing the offense as a
   89  delinquent act. The court may only order sealing of a criminal
   90  history record pertaining to one arrest or one incident of
   91  alleged criminal activity, except as provided in this section.
   92  The court may, at its sole discretion, order the sealing of a
   93  criminal history record pertaining to more than one arrest if
   94  the additional arrests directly relate to the original arrest.
   95  If the court intends to order the sealing of records pertaining
   96  to such additional arrests, such intent must be specified in the
   97  order. A criminal justice agency may not seal any record
   98  pertaining to such additional arrests if the order to seal does
   99  not articulate the intention of the court to seal records
  100  pertaining to more than one arrest. This section does not
  101  prevent the court from ordering the sealing of only a portion of
  102  a criminal history record pertaining to one arrest or one
  103  incident of alleged criminal activity. Notwithstanding any law
  104  to the contrary, a criminal justice agency may comply with laws,
  105  court orders, and official requests of other jurisdictions
  106  relating to sealing, correction, or confidential handling of
  107  criminal history records or information derived therefrom. This
  108  section does not confer any right to the sealing of any criminal
  109  history record, and any request for sealing a criminal history
  110  record may be denied at the sole discretion of the court.
  111         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  112  history record of a minor or an adult which is ordered sealed by
  113  a court pursuant to this section or sealed administratively
  114  pursuant to s. 943.0586 is confidential and exempt from the
  115  provisions of s. 119.07(1) and s. 24(a), Art. I of the State
  116  Constitution and is available only to the person who is the
  117  subject of the record, to the subject’s attorney, to criminal
  118  justice agencies for their respective criminal justice purposes,
  119  which include conducting a criminal history background check for
  120  approval of firearms purchases or transfers as authorized by
  121  state or federal law, to judges in the state courts system for
  122  the purpose of assisting them in their case-related
  123  decisionmaking responsibilities, as set forth in s. 943.053(5),
  124  or to those entities set forth in subparagraphs (a)1., 4., 5.,
  125  6., 8., 9., and 10. for their respective licensing, access
  126  authorization, and employment purposes.
  127         (a) The subject of a criminal history record sealed under
  128  this section, s. 943.0586, or under other provisions of law,
  129  including former s. 893.14, former s. 901.33, and former s.
  130  943.058, may lawfully deny or fail to acknowledge the arrests
  131  covered by the sealed record, except when the subject of the
  132  record:
  133         1. Is a candidate for employment with a criminal justice
  134  agency;
  135         2. Is a defendant in a criminal prosecution;
  136         3. Concurrently or subsequently petitions for relief under
  137  this section, s. 943.0583, or s. 943.0585;
  138         4. Is a candidate for admission to The Florida Bar;
  139         5. Is seeking to be employed or licensed by or to contract
  140  with the Department of Children and Families, the Division of
  141  Vocational Rehabilitation within the Department of Education,
  142  the Agency for Health Care Administration, the Agency for
  143  Persons with Disabilities, the Department of Health, the
  144  Department of Elderly Affairs, or the Department of Juvenile
  145  Justice or to be employed or used by such contractor or licensee
  146  in a sensitive position having direct contact with children, the
  147  disabled, or the elderly;
  148         6. Is seeking to be employed or licensed by the Department
  149  of Education, a district school board, a university laboratory
  150  school, a charter school, a private or parochial school, or a
  151  local governmental entity that licenses child care facilities;
  152         7. Is attempting to purchase a firearm from a licensed
  153  importer, licensed manufacturer, or licensed dealer and is
  154  subject to a criminal history check under state or federal law;
  155         8. Is seeking to be licensed by the Division of Insurance
  156  Agent and Agency Services within the Department of Financial
  157  Services;
  158         9. Is seeking to be appointed as a guardian pursuant to s.
  159  744.3125; or
  160         10. Is seeking to be licensed by the Bureau of License
  161  Issuance of the Division of Licensing within the Department of
  162  Agriculture and Consumer Services to carry a concealed weapon or
  163  concealed firearm. This subparagraph applies only in the
  164  determination of an applicant’s eligibility under s. 790.06.
  165         (b) Subject to the exceptions in paragraph (a), a person
  166  who has been granted a sealing under this section, s. 943.0586,
  167  former s. 893.14, former s. 901.33, or former s. 943.058 may not
  168  be held under any provision of law of this state to commit
  169  perjury or to be otherwise liable for giving a false statement
  170  by reason of such person’s failure to recite or acknowledge a
  171  sealed criminal history record.
  172         (c) Information relating to the existence of a sealed
  173  criminal record provided in accordance with the provisions of
  174  paragraph (a) is confidential and exempt from the provisions of
  175  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  176  except that the department shall disclose the sealed criminal
  177  history record to the entities set forth in subparagraphs (a)1.,
  178  4., 5., 6., 8., 9., and 10. for their respective licensing,
  179  access authorization, and employment purposes. An employee of an
  180  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  181  subparagraph (a)5., subparagraph (a)6., subparagraph (a)8.,
  182  subparagraph (a)9., or subparagraph (a)10. may not disclose
  183  information relating to the existence of a sealed criminal
  184  history record of a person seeking employment, access
  185  authorization, or licensure with such entity or contractor,
  186  except to the person to whom the criminal history record relates
  187  or to persons having direct responsibility for employment,
  188  access authorization, or licensure decisions. A person who
  189  violates the provisions of this paragraph commits a misdemeanor
  190  of the first degree, punishable as provided in s. 775.082 or s.
  191  775.083.
  192         (d) The expansion of the public records exemption under
  193  this subsection to include records sealed administratively under
  194  s. 943.0586 is subject to the Open Government Sunset Review Act
  195  in accordance with s. 119.15 and shall stand repealed on October
  196  2, 2023, unless reviewed and saved from repeal through
  197  reenactment by the Legislature. If the expansion of the
  198  exemption is not saved from repeal, this subsection shall revert
  199  to that in existence on June 30, 2017, except that any
  200  amendments to such text other than by this act shall be
  201  preserved and continue to operate to the extent that such
  202  amendments are not dependent upon the portions of text which
  203  expire pursuant to this paragraph.
  204         Section 5. Effective July 1, 2018, and only if SB 118 or
  205  similar legislation is adopted in the same legislative session
  206  or an extension thereof and becomes a law: The Legislature finds
  207  that it is a public necessity that the criminal history records
  208  of a minor or an adult, which have been administratively sealed
  209  pursuant to s. 943.0586, Florida Statutes, because the case was
  210  not filed, was dismissed or nolle prosequi, or resulted in the
  211  granting of a judgment of acquittal or verdict of not guilty, be
  212  made confidential and exempt from s. 119.07(1), Florida
  213  Statutes, and s. 24(a), Article I of the State Constitution. The
  214  presence of a criminal history record in an individual’s past
  215  which has not been validated through criminal proceedings can
  216  jeopardize his or her ability to obtain education, employment,
  217  and other achievements necessary to becoming a productive,
  218  contributing, self-sustaining member of society. Such negative
  219  consequences are unwarranted in cases in which the individual
  220  was not found to have committed the offense that is the subject
  221  of the sealed criminal history record. For these reasons, the
  222  Legislature finds that it is a public necessity that the
  223  criminal history records of a minor or an adult which have been
  224  administratively sealed be confidential and exempt from public
  225  records requirements.
  226         Section 6. Except as otherwise expressly provided in this
  227  act, this act shall take effect on July 1, 2017.
  228  
  229  ================= T I T L E  A M E N D M E N T ================
  230  And the title is amended as follows:
  231         Delete everything before the enacting clause
  232  and insert:
  233                        A bill to be entitled                      
  234         An act relating to public records; amending s. 901.40,
  235         F.S.; creating an exemption from public records
  236         requirements for the personal identifying information
  237         of adults who participate in a civil citation or
  238         prearrest diversion program; providing applicability;
  239         providing retroactive application; providing for
  240         future review and repeal of the exemption; providing a
  241         statement of public necessity; amending s. 943.0586,
  242         F.S.; providing applicability for the administrative
  243         sealing of specified criminal history records;
  244         amending s. 943.059, F.S.; expanding an existing
  245         public records exemption to include the administrative
  246         sealing of specified criminal history records;
  247         conforming provisions to changes made by the act;
  248         providing for future review and repeal of the expanded
  249         exemption; providing for reversion of specified
  250         language if the exemption is not saved from repeal;
  251         providing a statement of public necessity; providing
  252         effective dates, including contingent effective dates.