Florida Senate - 2018                              CS for SB 862
       By the Committee on Criminal Justice; and Senator Bracy
       591-02589-18                                           2018862c1
    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.
   13  Be It Enacted by the Legislature of the State of Florida:
   15         Section 1. Subsection (4) of section 943.059, Florida
   16  Statutes, 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.
   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, under s. 943.0586, or under other provisions of
   84  law, 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 which
  161  have been administratively sealed pursuant to s. 943.0586,
  162  Florida Statutes, because a case was not filed, was dismissed or
  163  nolle prosequi, or resulted in the granting of a judgment of
  164  acquittal or verdict of not guilty be made confidential and
  165  exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  166  Article I of the State Constitution. The presence of a criminal
  167  history record in a minor’s past which has not been validated
  168  through criminal proceedings can jeopardize his or her ability
  169  to obtain education, employment, and other opportunities
  170  necessary to becoming a productive, contributing, self
  171  sustaining member of society. Such negative consequences are
  172  unwarranted in cases in which the minor was not found to have
  173  committed the offense that is the subject of the sealed criminal
  174  history record. For these reasons, the Legislature finds that it
  175  is a public necessity that the criminal history records of
  176  minors which have been administratively sealed be confidential
  177  and exempt from public records requirements.
  178         Section 3. This act shall take effect on the same date that
  179  SB 860 or similar legislation takes effect, if such legislation
  180  is adopted in the same legislative session or an extension
  181  thereof and becomes law.