Florida Senate - 2017 CS for CS for CS for SB 450 By the Committees on Appropriations; Governmental Oversight and Accountability; and Criminal Justice; and Senator Brandes 576-03794-17 2017450c3 1 A bill to be entitled 2 An act relating to public records; amending s. 901.40, 3 F.S.; creating an exemption from public records 4 requirements for the personal identifying information 5 of adults who participate in a civil citation or 6 prearrest diversion program; providing applicability; 7 providing retroactive application; providing for 8 future review and repeal of the exemption; providing a 9 statement of public necessity; amending s. 943.0586, 10 F.S.; providing applicability for the administrative 11 sealing of specified criminal history records; 12 amending s. 943.059, F.S.; expanding an existing 13 public records exemption to include the administrative 14 sealing of specified criminal history records; 15 conforming provisions to changes made by the act; 16 providing for future review and repeal of the expanded 17 exemption; providing for reversion of specified 18 language if the exemption is not saved from repeal; 19 providing a statement of public necessity; providing 20 effective dates, including contingent effective dates. 21 22 Be It Enacted by the Legislature of the State of Florida: 23 24 Section 1. Effective upon the same date that SB 448 or 25 similar legislation takes effect, if such legislation is adopted 26 in the same legislative session or an extension thereof and 27 becomes a law, subsection (6) is added to section 901.40, 28 Florida Statutes, as created by SB 448, 2017 Regular Session, to 29 read: 30 901.40 Prearrest diversion programs.— 31 (6) PUBLIC RECORDS EXEMPTION.—The personal identifying 32 information of an adult participating in a civil citation or 33 prearrest diversion program is exempt from s. 119.07(1) and s. 34 24(a), Art. I of the State Constitution. The exemption does not 35 apply to the personal identifying information of an adult who 36 fails to complete the civil citation or prearrest diversion 37 program. This exemption applies to personal identifying 38 information held by a law enforcement agency, a program services 39 provider, a clerk of the circuit court, or the entity operating 40 an adult civil citation or prearrest diversion program before, 41 on, or after the effective date of this exemption. This 42 subsection is subject to the Open Government Sunset Review Act 43 in accordance with s. 119.15 and shall stand repealed on October 44 2, 2022, unless reviewed and saved from such repeal through 45 reenactment by the Legislature. 46 Section 2. Effective upon the same date that SB 448 or 47 similar legislation takes effect, if such legislation is adopted 48 in the same legislative session or an extension thereof and 49 becomes a law: The Legislature finds that it is a public 50 necessity that the personal identifying information of an adult 51 participating in a civil citation or prearrest diversion program 52 be exempt from s. 119.07(1), Florida Statutes, and s. 24(a), 53 Article I of the State Constitution. The exemption does not 54 apply to the personal identifying information of an adult who 55 fails to complete the civil citation or prearrest diversion 56 program. The goal of such programs is to give a second chance to 57 adults who commit misdemeanor offenses and allow them the 58 opportunity to avoid having an arrest record. Such goal would be 59 defeated if the personal identifying information of such adults 60 were not exempt from disclosure and, consequently, would create 61 negative consequences for these adults. If the public were able 62 to obtain the personal identifying information of these adults, 63 the disclosure might adversely impact the civil citation or 64 prearrest diversion program. For these reasons, the Legislature 65 finds that it is a public necessity that the personal 66 identifying information of an adult participating in a civil 67 citation or prearrest diversion program be exempt from public 68 records requirements. 69 Section 3. Effective July 1, 2018, and only if SB 118 or 70 similar legislation is adopted in the same legislative session 71 or an extension thereof and becomes a law, subsection (2) is 72 added to section 943.0586, Florida Statutes, as created by SB 73 118, 2017 Regular session, to read: 74 943.0586 Administrative sealing of criminal history 75 records.— 76 (2) The sealing under this section of a criminal history 77 record has the same effect as a sealing under s. 943.059(4). 78 Section 4. Effective July 1, 2018, and only if SB 118 or 79 similar legislation is adopted in the same legislative session 80 or an extension thereof and becomes a law, subsection (4) of 81 section 943.059, Florida Statues, is amended to read: 82 943.059 Court-ordered sealing of criminal history records. 83 The courts of this state shall continue to have jurisdiction 84 over their own procedures, including the maintenance, sealing, 85 and correction of judicial records containing criminal history 86 information to the extent such procedures are not inconsistent 87 with the conditions, responsibilities, and duties established by 88 this section. Any court of competent jurisdiction may order a 89 criminal justice agency to seal the criminal history record of a 90 minor or an adult who complies with the requirements of this 91 section. The court shall not order a criminal justice agency to 92 seal a criminal history record until the person seeking to seal 93 a criminal history record has applied for and received a 94 certificate of eligibility for sealing pursuant to subsection 95 (2). A criminal history record that relates to a violation of s. 96 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, 97 s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, 98 chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, 99 s. 916.1075, a violation enumerated in s. 907.041, or any 100 violation specified as a predicate offense for registration as a 101 sexual predator pursuant to s. 775.21, without regard to whether 102 that offense alone is sufficient to require such registration, 103 or for registration as a sexual offender pursuant to s. 104 943.0435, may not be sealed, without regard to whether 105 adjudication was withheld, if the defendant was found guilty of 106 or pled guilty or nolo contendere to the offense, or if the 107 defendant, as a minor, was found to have committed or pled 108 guilty or nolo contendere to committing the offense as a 109 delinquent act. The court may only order sealing of a criminal 110 history record pertaining to one arrest or one incident of 111 alleged criminal activity, except as provided in this section. 112 The court may, at its sole discretion, order the sealing of a 113 criminal history record pertaining to more than one arrest if 114 the additional arrests directly relate to the original arrest. 115 If the court intends to order the sealing of records pertaining 116 to such additional arrests, such intent must be specified in the 117 order. A criminal justice agency may not seal any record 118 pertaining to such additional arrests if the order to seal does 119 not articulate the intention of the court to seal records 120 pertaining to more than one arrest. This section does not 121 prevent the court from ordering the sealing of only a portion of 122 a criminal history record pertaining to one arrest or one 123 incident of alleged criminal activity. Notwithstanding any law 124 to the contrary, a criminal justice agency may comply with laws, 125 court orders, and official requests of other jurisdictions 126 relating to sealing, correction, or confidential handling of 127 criminal history records or information derived therefrom. This 128 section does not confer any right to the sealing of any criminal 129 history record, and any request for sealing a criminal history 130 record may be denied at the sole discretion of the court. 131 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal 132 history record of a minor or an adult which is ordered sealed by 133 a court pursuant to this section or sealed administratively 134 pursuant to s. 943.0586 is confidential and exempt from the 135 provisions of s. 119.07(1) and s. 24(a), Art. I of the State 136 Constitution and is available only to the person who is the 137 subject of the record, to the subject’s attorney, to criminal 138 justice agencies for their respective criminal justice purposes, 139 which include conducting a criminal history background check for 140 approval of firearms purchases or transfers as authorized by 141 state or federal law, to judges in the state courts system for 142 the purpose of assisting them in their case-related 143 decisionmaking responsibilities, as set forth in s. 943.053(5), 144 or to those entities set forth in subparagraphs (a)1., 4., 5., 145 6., 8., 9., and 10. for their respective licensing, access 146 authorization, and employment purposes. 147 (a) The subject of a criminal history record sealed under 148 this section, s. 943.0586, or under other provisions of law, 149 including former s. 893.14, former s. 901.33, and former s. 150 943.058, may lawfully deny or fail to acknowledge the arrests 151 covered by the sealed record, except when the subject of the 152 record: 153 1. Is a candidate for employment with a criminal justice 154 agency; 155 2. Is a defendant in a criminal prosecution; 156 3. Concurrently or subsequently petitions for relief under 157 this section, s. 943.0583, or s. 943.0585; 158 4. Is a candidate for admission to The Florida Bar; 159 5. Is seeking to be employed or licensed by or to contract 160 with the Department of Children and Families, the Division of 161 Vocational Rehabilitation within the Department of Education, 162 the Agency for Health Care Administration, the Agency for 163 Persons with Disabilities, the Department of Health, the 164 Department of Elderly Affairs, or the Department of Juvenile 165 Justice or to be employed or used by such contractor or licensee 166 in a sensitive position having direct contact with children, the 167 disabled, or the elderly; 168 6. Is seeking to be employed or licensed by the Department 169 of Education, a district school board, a university laboratory 170 school, a charter school, a private or parochial school, or a 171 local governmental entity that licenses child care facilities; 172 7. Is attempting to purchase a firearm from a licensed 173 importer, licensed manufacturer, or licensed dealer and is 174 subject to a criminal history check under state or federal law; 175 8. Is seeking to be licensed by the Division of Insurance 176 Agent and Agency Services within the Department of Financial 177 Services; 178 9. Is seeking to be appointed as a guardian pursuant to s. 179 744.3125; or 180 10. Is seeking to be licensed by the Bureau of License 181 Issuance of the Division of Licensing within the Department of 182 Agriculture and Consumer Services to carry a concealed weapon or 183 concealed firearm. This subparagraph applies only in the 184 determination of an applicant’s eligibility under s. 790.06. 185 (b) Subject to the exceptions in paragraph (a), a person 186 who has been granted a sealing under this section, s. 943.0586, 187 former s. 893.14, former s. 901.33, or former s. 943.058 may not 188 be held under any provision of law of this state to commit 189 perjury or to be otherwise liable for giving a false statement 190 by reason of such person’s failure to recite or acknowledge a 191 sealed criminal history record. 192 (c) Information relating to the existence of a sealed 193 criminal record provided in accordance with the provisions of 194 paragraph (a) is confidential and exempt from the provisions of 195 s. 119.07(1) and s. 24(a), Art. I of the State Constitution, 196 except that the department shall disclose the sealed criminal 197 history record to the entities set forth in subparagraphs (a)1., 198 4., 5., 6., 8., 9., and 10. for their respective licensing, 199 access authorization, and employment purposes. An employee of an 200 entity set forth in subparagraph (a)1., subparagraph (a)4., 201 subparagraph (a)5., subparagraph (a)6., subparagraph (a)8., 202 subparagraph (a)9., or subparagraph (a)10. may not disclose 203 information relating to the existence of a sealed criminal 204 history record of a person seeking employment, access 205 authorization, or licensure with such entity or contractor, 206 except to the person to whom the criminal history record relates 207 or to persons having direct responsibility for employment, 208 access authorization, or licensure decisions. A person who 209 violates the provisions of this paragraph commits a misdemeanor 210 of the first degree, punishable as provided in s. 775.082 or s. 211 775.083. 212 (d) The expansion of the public records exemption under 213 this subsection to include records sealed administratively under 214 s. 943.0586 is subject to the Open Government Sunset Review Act 215 in accordance with s. 119.15 and shall stand repealed on October 216 2, 2023, unless reviewed and saved from repeal through 217 reenactment by the Legislature. If the expansion of the 218 exemption is not saved from repeal, this subsection shall revert 219 to that in existence on June 30, 2017, except that any 220 amendments to such text other than by this act shall be 221 preserved and continue to operate to the extent that such 222 amendments are not dependent upon the portions of text which 223 expire pursuant to this paragraph. 224 Section 5. Effective July 1, 2018, and only if SB 118 or 225 similar legislation is adopted in the same legislative session 226 or an extension thereof and becomes a law: The Legislature finds 227 that it is a public necessity that the criminal history records 228 of a minor or an adult, which have been administratively sealed 229 pursuant to s. 943.0586, Florida Statutes, because the case was 230 not filed, was dismissed or nolle prosequi, or resulted in the 231 granting of a judgment of acquittal or verdict of not guilty, be 232 made confidential and exempt from s. 119.07(1), Florida 233 Statutes, and s. 24(a), Article I of the State Constitution. The 234 presence of a criminal history record in an individual’s past 235 which has not been validated through criminal proceedings can 236 jeopardize his or her ability to obtain education, employment, 237 and other achievements necessary to becoming a productive, 238 contributing, self-sustaining member of society. Such negative 239 consequences are unwarranted in cases in which the individual 240 was not found to have committed the offense that is the subject 241 of the sealed criminal history record. For these reasons, the 242 Legislature finds that it is a public necessity that the 243 criminal history records of a minor or an adult which have been 244 administratively sealed be confidential and exempt from public 245 records requirements. 246 Section 6. Except as otherwise expressly provided in this 247 act, this act shall take effect on July 1, 2017.