Florida Senate - 2018                                     SB 598
       
       
        
       By Senator Thurston
       
       
       
       
       
       33-00858-18                                            2018598__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         943.0515, F.S.; specifying that certain information
    4         retained by the Criminal Justice Information Program
    5         relating to juvenile offenders is exempt from public
    6         records requirements; providing for future legislative
    7         review and repeal of the exemption; amending s.
    8         943.053, F.S.; deleting exceptions from an exemption
    9         from public records requirements for certain
   10         information relating to juvenile offenders; delaying
   11         future legislative review and repeal of the exemption;
   12         conforming a provision to changes made by the act;
   13         providing a statement of public necessity; reenacting
   14         ss. 943.046(1), 943.0543(5), 943.05(2)(h), 943.056(1),
   15         985.04(1)(a) and (6)(a), 985.045(2), and 985.11(1)(b),
   16         F.S., relating to notification of criminal offender
   17         information, ratification and implementation of the
   18         National Crime Prevention and Privacy Compact, the
   19         Criminal Justice Information Program, criminal history
   20         records, confidential information and treatment of
   21         records, court records, and fingerprinting and
   22         photographing, respectively, to incorporate the
   23         amendment made to s. 943.053, F.S., in references
   24         thereto; providing an effective date.
   25          
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Subsection (1) of section 943.0515, Florida
   29  Statutes, is amended to read:
   30         943.0515 Retention of criminal history records of minors.—
   31         (1)(a)1. The Criminal Justice Information Program shall
   32  retain the criminal history record of a minor who is classified
   33  as a serious or habitual juvenile offender or committed to a
   34  juvenile correctional facility or juvenile prison under chapter
   35  985 for 5 years after the date the offender reaches 21 years of
   36  age, at which time the record shall be expunged unless it meets
   37  the criteria of paragraph (2)(a) or paragraph (2)(b).
   38         2. Such information held by the program is confidential and
   39  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
   40  Constitution. This subparagraph is subject to the Open
   41  Government Sunset Review Act in accordance with s. 119.15 and
   42  shall stand repealed on October 2, 2023, unless reviewed and
   43  saved from repeal through reenactment by the Legislature.
   44         (b)1. If the minor is not classified as a serious or
   45  habitual juvenile offender or committed to a juvenile
   46  correctional facility or juvenile prison under chapter 985, the
   47  program shall retain the minor’s criminal history record for 2
   48  years after the date the minor reaches 19 years of age, at which
   49  time the record shall be expunged unless it meets the criteria
   50  of paragraph (2)(a) or paragraph (2)(b).
   51         2. A minor described in subparagraph 1. may apply to the
   52  department to have his or her criminal history record expunged
   53  before the minor reaches 21 years of age. To be eligible for
   54  expunction under this subparagraph, the minor must be 18 years
   55  of age or older and less than 21 years of age and have not been
   56  charged by the state attorney with or found to have committed
   57  any criminal offense within the 5-year period before the
   58  application date. The only offenses eligible to be expunged
   59  under this subparagraph are those that the minor committed
   60  before the minor reached 18 years of age. A criminal history
   61  record expunged under this subparagraph requires the approval of
   62  the state attorney for each circuit in which an offense
   63  specified in the criminal history record occurred. A minor
   64  seeking to expunge a criminal history record under this
   65  subparagraph shall apply to the department for expunction in the
   66  manner prescribed by rule. An application for expunction under
   67  this subparagraph shall include:
   68         a. A processing fee of $75 to the department for placement
   69  in the Department of Law Enforcement Operating Trust Fund,
   70  unless such fee is waived by the executive director.
   71         b. A full set of fingerprints of the applicant taken by a
   72  law enforcement agency for purposes of identity verification.
   73         c. A sworn, written statement from the minor seeking relief
   74  that he or she is no longer under court supervision applicable
   75  to the disposition of the arrest or alleged criminal activity to
   76  which the application to expunge pertains and that he or she has
   77  not been charged with or found to have committed a criminal
   78  offense, in any jurisdiction of the state or within the United
   79  States, within the 5-year period before the application date. A
   80  person who knowingly provides false information on the sworn
   81  statement required by this sub-subparagraph commits a
   82  misdemeanor of the first degree, punishable as provided in s.
   83  775.082 or s. 775.083.
   84         3. A minor who applies, but who is not approved for early
   85  expunction in accordance with subparagraph 2., shall have his or
   86  her criminal history record expunged at age 21 if eligible under
   87  subparagraph 1.
   88         Section 2. Paragraphs (b) and (c) of subsection (3) of
   89  section 943.053, Florida Statutes, are amended to read:
   90         943.053 Dissemination of criminal justice information;
   91  fees.—
   92         (3)
   93         (b)1. Criminal history information relating to a juvenile
   94  compiled by the Criminal Justice Information Program from
   95  intrastate sources shall be released as provided in this
   96  section. Such information is confidential and exempt from s.
   97  119.07(1) and s. 24(a), Art. I of the State Constitution, unless
   98  such juvenile has been:
   99         a. Taken into custody by a law enforcement officer for a
  100  violation of law which, if committed by an adult, would be a
  101  felony;
  102         b. Charged with a violation of law which, if committed by
  103  an adult, would be a felony;
  104         c. Found to have committed an offense which, if committed
  105  by an adult, would be a felony; or
  106         d.transferred to adult court pursuant to part X of chapter
  107  985, and his or her provided the criminal history record has not
  108  been expunged or sealed under any law applicable to such record.
  109         2. This paragraph is subject to the Open Government Sunset
  110  Review Act in accordance with s. 119.15 and shall stand repealed
  111  on October 2, 2023 2021, unless reviewed and saved from repeal
  112  through reenactment by the Legislature.
  113         (c)1. Criminal history information relating to juveniles,
  114  including criminal history information consisting in whole or in
  115  part of information that is confidential and exempt under
  116  paragraph (b), shall be available to:
  117         a. A criminal justice agency for criminal justice purposes
  118  on a priority basis and free of charge;
  119         b. The person to whom the record relates, or his or her
  120  attorney;
  121         c. The parent, guardian, or legal custodian of the person
  122  to whom the record relates, provided such person has not reached
  123  the age of majority, been emancipated by a court, or been
  124  legally married; or
  125         d. An agency or entity specified in s. 943.0585(4) or s.
  126  943.059(4), for the purposes specified therein, and to any
  127  person within such agency or entity who has direct
  128  responsibility for employment, access authorization, or
  129  licensure decisions.
  130         2. After providing the program with all known personal
  131  identifying information, the criminal history information
  132  relating to a juvenile which is not confidential and exempt
  133  under this subsection may be released to the private sector and
  134  noncriminal justice agencies not specified in s. 943.0585(4) or
  135  s. 943.059(4) in the same manner as provided in paragraph (a).
  136  Criminal history information relating to a juvenile which is not
  137  confidential and exempt under this subsection is the entire
  138  criminal history information relating to a juvenile who has been
  139  transferred to adult court pursuant to part X of chapter 985
  140  satisfies any of the criteria listed in sub-subparagraphs
  141  (b)1.a.-d., except for any portion of such juvenile’s criminal
  142  history record which has been expunged or sealed under any law
  143  applicable to such record.
  144         3. All criminal history information relating to juveniles,
  145  other than that provided to criminal justice agencies for
  146  criminal justice purposes, shall be provided upon tender of fees
  147  as established in this subsection and in the manner prescribed
  148  by rule of the Department of Law Enforcement.
  149         Section 3. The Legislature finds that it is a public
  150  necessity that the criminal history information of juveniles be
  151  made confidential and exempt from s. 119.07(1), Florida
  152  Statutes, and s. 24(a), Article I of the State Constitution
  153  under ss. 943.0515 and 943.053, Florida Statutes. Many
  154  individuals who have either completed their sanctions and
  155  received treatment or who were never charged in the juvenile
  156  justice system have found it difficult to obtain employment. The
  157  presence of an arrest or a criminal history record in these
  158  individuals’ juvenile past and certain criminal history
  159  information relating to a juvenile compiled by the Criminal
  160  Justice Information Program creates an unnecessary barrier to
  161  becoming productive members of society, thus frustrating the
  162  rehabilitative purpose of the juvenile justice system. The
  163  Legislature therefore finds that it is in the best interest of
  164  the public that individuals with juvenile criminal history
  165  records are given the opportunity to become contributing members
  166  of society. Therefore, prohibiting the unfettered release of
  167  juvenile criminal history records and certain criminal history
  168  information relating to a juvenile compiled by the Criminal
  169  Justice Information Program is of greater importance than any
  170  public benefit that may be derived from the full disclosure and
  171  release of such arrest records and information.
  172         Section 4. For the purpose of incorporating the amendment
  173  made by this act to section 943.053, Florida Statutes, in a
  174  reference thereto, subsection (1) of section 943.046, Florida
  175  Statutes, is reenacted to read:
  176         943.046 Notification of criminal offender information.—
  177         (1) Any state or local law enforcement agency may release
  178  to the public any criminal history information and other
  179  information regarding a criminal offender, including, but not
  180  limited to, public notification by the agency of the
  181  information, unless the information is confidential and exempt
  182  from s. 119.07(1) and s. 24(a), Art. I of the State
  183  Constitution. However, this section does not contravene any
  184  provision of s. 943.053 which relates to the method by which an
  185  agency or individual may obtain a copy of an offender’s criminal
  186  history record.
  187         Section 5. For the purpose of incorporating the amendment
  188  made by this act to section 943.053, Florida Statutes, in a
  189  reference thereto, subsection (5) of section 943.0543, Florida
  190  Statutes, is reenacted to read:
  191         943.0543 National Crime Prevention and Privacy Compact;
  192  ratification and implementation.—
  193         (5) This compact and this section do not affect or abridge
  194  the obligations and responsibilities of the department under
  195  other provisions of this chapter, including s. 943.053, and do
  196  not alter or amend the manner, direct or otherwise, in which the
  197  public is afforded access to criminal history records under
  198  state law.
  199         Section 6. For the purpose of incorporating the amendment
  200  made by this act to section 943.053, Florida Statutes, in a
  201  reference thereto, paragraph (h) of subsection (2) of section
  202  943.05, Florida Statutes, is reenacted to read:
  203         943.05 Criminal Justice Information Program; duties; crime
  204  reports.—
  205         (2) The program shall:
  206         (h) For each agency or qualified entity that officially
  207  requests retention of fingerprints or for which retention is
  208  otherwise required by law, search all arrest fingerprint
  209  submissions received under s. 943.051 against the fingerprints
  210  retained in the statewide automated biometric identification
  211  system under paragraph (g).
  212         1. Any arrest record that is identified with the retained
  213  fingerprints of a person subject to background screening as
  214  provided in paragraph (g) shall be reported to the appropriate
  215  agency or qualified entity.
  216         2. To participate in this search process, agencies or
  217  qualified entities must notify each person fingerprinted that
  218  his or her fingerprints will be retained, pay an annual fee to
  219  the department unless otherwise provided by law, and inform the
  220  department of any change in the affiliation, employment, or
  221  contractual status of each person whose fingerprints are
  222  retained under paragraph (g) if such change removes or
  223  eliminates the agency or qualified entity’s basis or need for
  224  receiving reports of any arrest of that person, so that the
  225  agency or qualified entity is not obligated to pay the upcoming
  226  annual fee for the retention and searching of that person’s
  227  fingerprints to the department. The department shall adopt a
  228  rule setting the amount of the annual fee to be imposed upon
  229  each participating agency or qualified entity for performing
  230  these searches and establishing the procedures for the retention
  231  of fingerprints and the dissemination of search results. The fee
  232  may be borne by the agency, qualified entity, or person subject
  233  to fingerprint retention or as otherwise provided by law.
  234  Consistent with the recognition of criminal justice agencies
  235  expressed in s. 943.053(3), these services shall be provided to
  236  criminal justice agencies for criminal justice purposes free of
  237  charge. Qualified entities that elect to participate in the
  238  fingerprint retention and search process are required to timely
  239  remit the fee to the department by a payment mechanism approved
  240  by the department. If requested by the qualified entity, and
  241  with the approval of the department, such fees may be timely
  242  remitted to the department by a qualified entity upon receipt of
  243  an invoice for such fees from the department. Failure of a
  244  qualified entity to pay the amount due on a timely basis or as
  245  invoiced by the department may result in the refusal by the
  246  department to permit the qualified entity to continue to
  247  participate in the fingerprint retention and search process
  248  until all fees due and owing are paid.
  249         3. Agencies that participate in the fingerprint retention
  250  and search process may adopt rules pursuant to ss. 120.536(1)
  251  and 120.54 to require employers to keep the agency informed of
  252  any change in the affiliation, employment, or contractual status
  253  of each person whose fingerprints are retained under paragraph
  254  (g) if such change removes or eliminates the agency’s basis or
  255  need for receiving reports of any arrest of that person, so that
  256  the agency is not obligated to pay the upcoming annual fee for
  257  the retention and searching of that person’s fingerprints to the
  258  department.
  259         Section 7. For the purpose of incorporating the amendment
  260  made by this act to section 943.053, Florida Statutes, in a
  261  reference thereto, subsection (1) of section 943.056, Florida
  262  Statutes, is reenacted to read:
  263         943.056 Criminal history records; access, review, and
  264  challenge.—
  265         (1) For purposes of verification of the accuracy and
  266  completeness of a criminal history record, the Department of Law
  267  Enforcement shall provide, in the manner prescribed by rule,
  268  such record for review upon verification, by fingerprints, of
  269  the identity of the requesting person. If a minor, or the parent
  270  or legal guardian of a minor, requests a copy of the minor’s
  271  criminal history record, the Department of Law Enforcement shall
  272  provide such copy, including any portions of the record which
  273  may be confidential under s. 943.053(3)(b), for review upon
  274  verification, by fingerprints, of the identity of the minor. The
  275  providing of such record shall not require the payment of any
  276  fees, except those provided for by federal regulations.
  277         Section 8. For the purpose of incorporating the amendment
  278  made by this act to section 943.053, Florida Statutes, in a
  279  reference thereto, paragraph (a) of subsection (1) and paragraph
  280  (a) of subsection (6) of section 985.04, Florida Statutes, are
  281  reenacted to read:
  282         985.04 Oaths; records; confidential information.—
  283         (1)(a) Except as provided in subsections (2), (3), (6), and
  284  (7) and s. 943.053, all information obtained under this chapter
  285  in the discharge of official duty by any judge, any employee of
  286  the court, any authorized agent of the department, the Florida
  287  Commission on Offender Review, the Department of Corrections,
  288  the juvenile justice circuit boards, any law enforcement agent,
  289  or any licensed professional or licensed community agency
  290  representative participating in the assessment or treatment of a
  291  juvenile is confidential and exempt from s. 119.07(1) and s.
  292  24(a), Art. I of the State Constitution. This exemption applies
  293  to information obtained before, on, or after the effective date
  294  of this exemption.
  295         (6)(a) Records maintained by the department, including
  296  copies of records maintained by the court, which pertain to a
  297  child found to have committed a delinquent act which, if
  298  committed by an adult, would be a crime specified in s. 435.04
  299  may not be destroyed under this section for 25 years after the
  300  youth’s final referral to the department, except in cases of the
  301  death of the child. Such records, however, shall be sealed by
  302  the court for use only in meeting the screening requirements for
  303  personnel in s. 402.3055 and the other sections cited above, or
  304  under departmental rule; however, current criminal history
  305  information must be obtained from the Department of Law
  306  Enforcement in accordance with s. 943.053. The information shall
  307  be released to those persons specified in the above cited
  308  sections for the purposes of complying with those sections. The
  309  court may punish by contempt any person who releases or uses the
  310  records for any unauthorized purpose.
  311         Section 9. For the purpose of incorporating the amendment
  312  made by this act to section 943.053, Florida Statutes, in a
  313  reference thereto, subsection (2) of section 985.045, Florida
  314  Statutes, is reenacted to read:
  315         985.045 Court records.—
  316         (2) The clerk shall keep all official records required by
  317  this section separate from other records of the circuit court,
  318  except those records pertaining to motor vehicle violations,
  319  which shall be forwarded to the Department of Highway Safety and
  320  Motor Vehicles. Except as provided in ss. 943.053 and
  321  985.04(6)(b) and (7), official records required by this chapter
  322  are not open to inspection by the public, but may be inspected
  323  only upon order of the court by persons deemed by the court to
  324  have a proper interest therein, except that a child and the
  325  parents, guardians, or legal custodians of the child and their
  326  attorneys, law enforcement agencies, the Department of Juvenile
  327  Justice and its designees, the Florida Commission on Offender
  328  Review, the Department of Corrections, and the Justice
  329  Administrative Commission shall always have the right to inspect
  330  and copy any official record pertaining to the child. Public
  331  defender offices shall have access to official records of
  332  juveniles on whose behalf they are expected to appear in
  333  detention or other hearings before an appointment of
  334  representation. The court may permit authorized representatives
  335  of recognized organizations compiling statistics for proper
  336  purposes to inspect, and make abstracts from, official records
  337  under whatever conditions upon the use and disposition of such
  338  records the court may deem proper and may punish by contempt
  339  proceedings any violation of those conditions.
  340         Section 10. For the purpose of incorporating the amendment
  341  made by this act to section 943.053, Florida Statutes, in a
  342  reference thereto, paragraph (b) of subsection (1) of section
  343  985.11, Florida Statutes, is reenacted to read:
  344         985.11 Fingerprinting and photographing.—
  345         (1)
  346         (b) Unless the child is issued a civil citation or is
  347  participating in a similar diversion program pursuant to s.
  348  985.12, a child who is charged with or found to have committed
  349  one of the following offenses shall be fingerprinted, and the
  350  fingerprints shall be submitted to the Department of Law
  351  Enforcement as provided in s. 943.051(3)(b):
  352         1. Assault, as defined in s. 784.011.
  353         2. Battery, as defined in s. 784.03.
  354         3. Carrying a concealed weapon, as defined in s. 790.01(1).
  355         4. Unlawful use of destructive devices or bombs, as defined
  356  in s. 790.1615(1).
  357         5. Neglect of a child, as defined in s. 827.03(1)(e).
  358         6. Assault on a law enforcement officer, a firefighter, or
  359  other specified officers, as defined in s. 784.07(2)(a).
  360         7. Open carrying of a weapon, as defined in s. 790.053.
  361         8. Exposure of sexual organs, as defined in s. 800.03.
  362         9. Unlawful possession of a firearm, as defined in s.
  363  790.22(5).
  364         10. Petit theft, as defined in s. 812.014.
  365         11. Cruelty to animals, as defined in s. 828.12(1).
  366         12. Arson, resulting in bodily harm to a firefighter, as
  367  defined in s. 806.031(1).
  368         13. Unlawful possession or discharge of a weapon or firearm
  369  at a school-sponsored event or on school property as defined in
  370  s. 790.115.
  371  
  372  A law enforcement agency may fingerprint and photograph a child
  373  taken into custody upon probable cause that such child has
  374  committed any other violation of law, as the agency deems
  375  appropriate. Such fingerprint records and photographs shall be
  376  retained by the law enforcement agency in a separate file, and
  377  these records and all copies thereof must be marked “Juvenile
  378  Confidential.” These records are not available for public
  379  disclosure and inspection under s. 119.07(1) except as provided
  380  in ss. 943.053 and 985.04(2), but shall be available to other
  381  law enforcement agencies, criminal justice agencies, state
  382  attorneys, the courts, the child, the parents or legal
  383  custodians of the child, their attorneys, and any other person
  384  authorized by the court to have access to such records. In
  385  addition, such records may be submitted to the Department of Law
  386  Enforcement for inclusion in the state criminal history records
  387  and used by criminal justice agencies for criminal justice
  388  purposes. These records may, in the discretion of the court, be
  389  open to inspection by anyone upon a showing of cause. The
  390  fingerprint and photograph records shall be produced in the
  391  court whenever directed by the court. Any photograph taken
  392  pursuant to this section may be shown by a law enforcement
  393  officer to any victim or witness of a crime for the purpose of
  394  identifying the person who committed such crime.
  395         Section 11. This act shall take effect July 1, 2018.