Florida Senate - 2018                   (PROPOSED BILL) SPB 7000
       FOR CONSIDERATION By the Committee on Criminal Justice
       591-00770-18                                          20187000pb
    1                        A bill to be entitled                      
    2         An act relating to a review under the Open Government
    3         Sunset Review Act; amending s. 943.0583, F.S.,
    4         relating to an exemption from public records
    5         requirements for certain criminal history records
    6         ordered expunged which are retained by the Department
    7         of Law Enforcement; saving the exemption from repeal
    8         under the Open Government Sunset Review Act; providing
    9         an effective date.
   11  Be It Enacted by the Legislature of the State of Florida:
   13         Section 1. Section 943.0583, Florida Statutes, is amended
   14  to read:
   15         943.0583 Human trafficking victim expunction.—
   16         (1) As used in this section, the term:
   17         (a) “Human trafficking” has the same meaning as provided in
   18  s. 787.06.
   19         (b) “Official documentation” means any documentation issued
   20  by a federal, state, or local agency tending to show a person’s
   21  status as a victim of human trafficking.
   22         (c) “Victim of human trafficking” means a person subjected
   23  to coercion, as defined in s. 787.06, for the purpose of being
   24  used in human trafficking, a child under 18 years of age
   25  subjected to human trafficking, or an individual subjected to
   26  human trafficking as defined by federal law.
   27         (2) Notwithstanding any other provision of law, upon the
   28  filing of a petition as provided in this section, any court in
   29  the circuit in which the petitioner was arrested, so long as the
   30  court has jurisdiction over the class of offense or offenses
   31  sought to be expunged, may order a criminal justice agency to
   32  expunge the criminal history record of a victim of human
   33  trafficking who complies with the requirements of this section.
   34  A petition need not be filed in the court where the petitioner’s
   35  criminal proceeding or proceedings originally occurred. This
   36  section does not confer any right to the expunction of any
   37  criminal history record, and any request for expunction of a
   38  criminal history record may be denied at the discretion of the
   39  court.
   40         (3) A person who is a victim of human trafficking may
   41  petition for the expunction of a criminal history record
   42  resulting from the arrest or filing of charges for an offense
   43  committed or reported to have been committed while the person
   44  was a victim of human trafficking, which offense was committed
   45  or reported to have been committed as a part of the human
   46  trafficking scheme of which the person was a victim or at the
   47  direction of an operator of the scheme, including, but not
   48  limited to, violations under chapters 796 and 847, without
   49  regard to the disposition of the arrest or of any charges.
   50  However, this section does not apply to any offense listed in s.
   51  775.084(1)(b)1. Determination of the petition under this section
   52  should be by a preponderance of the evidence. A conviction
   53  expunged under this section is deemed to have been vacated due
   54  to a substantive defect in the underlying criminal proceedings.
   55  If a person is adjudicated not guilty by reason of insanity or
   56  is found to be incompetent to stand trial for any such charge,
   57  the expunction of the criminal history record may not prevent
   58  the entry of the judgment or finding in state and national
   59  databases for use in determining eligibility to purchase or
   60  possess a firearm or to carry a concealed firearm, as authorized
   61  in s. 790.065(2)(a)4.c. and 18 U.S.C. s. 922(t), nor shall it
   62  prevent any governmental agency that is authorized by state or
   63  federal law to determine eligibility to purchase or possess a
   64  firearm or to carry a concealed firearm from accessing or using
   65  the record of the judgment or finding in the course of such
   66  agency’s official duties.
   67         (4) A petition under this section must be initiated by the
   68  petitioner with due diligence after the victim has ceased to be
   69  a victim of human trafficking or has sought services for victims
   70  of human trafficking, subject to reasonable concerns for the
   71  safety of the victim, family members of the victim, or other
   72  victims of human trafficking that may be jeopardized by the
   73  bringing of such petition or for other reasons consistent with
   74  the purpose of this section.
   75         (5) Official documentation of the victim’s status creates a
   76  presumption that his or her participation in the offense was a
   77  result of having been a victim of human trafficking but is not
   78  required for granting a petition under this section. A
   79  determination made without such official documentation must be
   80  made by a showing of clear and convincing evidence.
   81         (6) Each petition to a court to expunge a criminal history
   82  record is complete only when accompanied by:
   83         (a) The petitioner’s sworn statement attesting that the
   84  petitioner is eligible for such an expunction to the best of his
   85  or her knowledge or belief and does not have any other petition
   86  to expunge or any petition to seal pending before any court.
   87         (b) Official documentation of the petitioner’s status as a
   88  victim of human trafficking, if any exists.
   90  Any person who knowingly provides false information on such
   91  sworn statement to the court commits a felony of the third
   92  degree, punishable as provided in s. 775.082, s. 775.083, or s.
   93  775.084.
   94         (7)(a) In judicial proceedings under this section, a copy
   95  of the completed petition to expunge shall be served upon the
   96  appropriate state attorney or the statewide prosecutor and upon
   97  the arresting agency; however, it is not necessary to make any
   98  agency other than the state a party. The appropriate state
   99  attorney or the statewide prosecutor and the arresting agency
  100  may respond to the court regarding the completed petition to
  101  expunge.
  102         (b) The petitioner or the petitioner’s attorney may appear
  103  at any hearing under this section telephonically, via video
  104  conference, or by other electronic means.
  105         (c) The court shall allow an advocate from a state
  106  attorney’s office, law enforcement agency, safe house or safe
  107  foster home as defined in s. 409.1678(1), or a residential
  108  facility offering services to adult victims of human trafficking
  109  to be present with the petitioner during any court proceedings
  110  or hearings under this section, if the petitioner has made such
  111  a request and the advocate is able to be present.
  112         (d) If relief is granted by the court, the clerk of the
  113  court shall certify copies of the order to the appropriate state
  114  attorney or the statewide prosecutor and the arresting agency.
  115  The arresting agency is responsible for forwarding the order to
  116  any other agency listed in the court order to which the
  117  arresting agency disseminated the criminal history record
  118  information to which the order pertains. The department shall
  119  forward the order to expunge to the Federal Bureau of
  120  Investigation. The clerk of the court shall certify a copy of
  121  the order to any other agency that the records of the court
  122  reflect has received the criminal history record from the court.
  123         (8)(a) Any criminal history record of a minor or an adult
  124  that is ordered expunged pursuant to this section must be
  125  physically destroyed or obliterated by any criminal justice
  126  agency having custody of such record, except that any criminal
  127  history record in the custody of the department must be retained
  128  in all cases.
  129         (b) The person who is the subject of a criminal history
  130  record that is expunged under this section may lawfully deny or
  131  fail to acknowledge the arrests covered by the expunged record,
  132  except when the subject of the record is a candidate for
  133  employment with a criminal justice agency or is a defendant in a
  134  criminal prosecution.
  135         (c) Subject to the exceptions in paragraph (b), a person
  136  who has been granted an expunction under this section may not be
  137  held under any law of this state to commit perjury or to be
  138  otherwise liable for giving a false statement by reason of such
  139  person’s failure to recite or acknowledge an expunged criminal
  140  history record.
  141         (9) Any reference to any other chapter, section, or
  142  subdivision of the Florida Statutes in this section constitutes
  143  a general reference under the doctrine of incorporation by
  144  reference.
  145         (10)(a) A criminal history record ordered expunged under
  146  this section that is retained by the department is confidential
  147  and exempt from s. 119.07(1) and s. 24(a), Art. I of the State
  148  Constitution, except that the record shall be made available to
  149  criminal justice agencies for their respective criminal justice
  150  purposes and to any governmental agency that is authorized by
  151  state or federal law to determine eligibility to purchase or
  152  possess a firearm or to carry a concealed firearm for use in the
  153  course of such agency’s official duties. Otherwise, such record
  154  shall not be disclosed to any person or entity except upon order
  155  of a court of competent jurisdiction. A criminal justice agency
  156  may retain a notation indicating compliance with an order to
  157  expunge.
  158         (b) This subsection is subject to the Open Government
  159  Sunset Review Act in accordance with s. 119.15 and shall stand
  160  repealed on October 2, 2018, unless reviewed and saved from
  161  repeal through reenactment by the Legislature.
  162         (11)(a) The following criminal intelligence information or
  163  criminal investigative information is confidential and exempt
  164  from s. 119.07(1) and s. 24(a), Art. I of the State
  165  Constitution:
  166         1. Any information that reveals the identity of a person
  167  who is a victim of human trafficking whose criminal history
  168  record has been expunged under this section.
  169         2. Any information that may reveal the identity of a person
  170  who is a victim of human trafficking whose criminal history
  171  record has been ordered expunged under this section.
  172         (b) Criminal investigative information and criminal
  173  intelligence information made confidential and exempt under this
  174  subsection may be disclosed by a law enforcement agency:
  175         1. In the furtherance of its official duties and
  176  responsibilities.
  177         2. For print, publication, or broadcast if the law
  178  enforcement agency determines that such release would assist in
  179  locating or identifying a person that the agency believes to be
  180  missing or endangered. The information provided should be
  181  limited to that needed to identify or locate the victim.
  182         3. To another governmental agency in the furtherance of its
  183  official duties and responsibilities.
  184         (c) This exemption applies to such confidential and exempt
  185  criminal intelligence information or criminal investigative
  186  information held by a law enforcement agency before, on, or
  187  after the effective date of the exemption.
  188         (d) This subsection is subject to the Open Government
  189  Sunset Review Act in accordance with s. 119.15 and shall stand
  190  repealed on October 2, 2020, unless reviewed and saved from
  191  repeal through reenactment by the Legislature.
  192         Section 2. This act shall take effect July 1, 2018.