Senate Bill sb2034

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    Florida Senate - 2004                                  SB 2034

    By Senator Smith





    14-924-04

  1                      A bill to be entitled

  2         An act relating to investigative incident

  3         reports; amending s. 943.045, F.S.; defining

  4         the term "investigative incident report";

  5         creating s. 943.0595, F.S.; authorizing a court

  6         to order that an investigative incident report

  7         be sealed by the criminal justice agency that

  8         makes the report; providing requirements for

  9         the petition to seal an investigative incident

10         report; requiring a certification of

11         eligibility issued by the Department of Law

12         Enforcement; requiring that the department

13         adopt rules governing the issuance of

14         certificates of eligibility; requiring that a

15         petition to seal a report be served on the

16         agency that prepared the report; requiring that

17         an order to seal a report be forwarded to any

18         agency that received the investigative incident

19         report to which the order pertains; providing

20         that an agency need not comply with an order to

21         seal if the order does not comply with the

22         requirements for sealing; requiring the

23         Department of Law Enforcement to notify the

24         court of the noncompliance; providing that

25         there is not a cause of action against an

26         agency that does seal a record if the

27         petitioner failed to comply with the

28         requirements for sealing; providing that a

29         person who is the subject of an investigative

30         incident report may lawfully deny or fail to

31         acknowledge an incident that is the subject of

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    Florida Senate - 2004                                  SB 2034
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 1         a sealed report; specifying certain exceptions;

 2         providing an effective date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Subsection (19) is added to section

 7  943.045, Florida Statutes, to read:

 8         943.045  Definitions; ss. 943.045-943.08.--The

 9  following words and phrases as used in ss. 943.045-943.08

10  shall have the following meanings:

11         (19)  "Investigative incident report" means any

12  nonjudicial record maintained by a criminal justice agency

13  which documents criminal investigative activity and the

14  results of such activity, including, but not limited to, the

15  facts and circumstances relating to alleged or suspected

16  criminal activity, and for which there is a final decision by

17  the criminal justice agency that an arrest will not be made

18  and criminal charges will not be filed with respect to the

19  alleged or suspected activity under investigation which is the

20  subject of the report. The term does not include a criminal

21  history record.

22         Section 2.  Section 943.0595, Florida Statutes, is

23  created to read:

24         943.0595  Court-ordered sealing of investigative

25  incident reports.--The courts of this state shall continue to

26  have jurisdiction over their own procedures, including the

27  maintenance, sealing, and correction of judicial records

28  containing information derived from or which duplicates

29  investigative incident reports to the extent such procedures

30  are not inconsistent with the conditions, responsibilities,

31  and duties established in this section. Any court of competent

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    Florida Senate - 2004                                  SB 2034
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 1  jurisdiction may order a criminal justice agency to seal an

 2  investigative incident report if a minor or an adult who is

 3  the subject or one of the subjects of the report complies with

 4  the requirements of this section. The court may not order a

 5  criminal justice agency to seal an investigative incident

 6  report until the person seeking to seal the report has applied

 7  for and received a certificate of eligibility for sealing

 8  pursuant to subsection (2). The court may order only the

 9  sealing of an investigative incident report pertaining to a

10  single incident of alleged or suspected criminal activity,

11  except as provided in this section. The court may order the

12  sealing of an investigative incident report pertaining to more

13  than one incident of alleged or suspected criminal activity if

14  the additional incidents directly relate to the original

15  incident. If the court intends to order the sealing of reports

16  pertaining to any additional incidents, such intent must be

17  specified in the order. A criminal justice agency may not seal

18  any report pertaining to additional incidents if the order to

19  seal does not articulate the intention of the court to seal

20  reports pertaining to more than one incident. This section

21  does not prevent the court from ordering the sealing of only a

22  portion of an investigative incident report pertaining to one

23  incident of alleged or suspected criminal activity.

24  Notwithstanding any law to the contrary, a criminal justice

25  agency may comply with laws, court orders, and official

26  requests of other jurisdictions relating to the sealing, the

27  correcting, or the confidential handling of investigative

28  incident reports or information derived from investigative

29  incident reports. This section does not confer any right to

30  the sealing of an investigative incident report, and any

31  

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 1  request for sealing a report may be denied at the sole

 2  discretion of the court.

 3         (1)  PETITION TO SEAL AN INVESTIGATIVE INCIDENT

 4  REPORT.--Each petition to a court to seal an investigative

 5  incident report is complete only when accompanied by:

 6         (a)  A certificate of eligibility for sealing issued by

 7  the department pursuant to subsection (2).

 8         (b)  The petitioner's sworn statement attesting that

 9  the petitioner:

10         1.  Has never, prior to the date on which the petition

11  is filed, been adjudicated guilty of a criminal offense or

12  comparable ordinance violation or adjudicated delinquent for

13  committing a felony or a misdemeanor specified in s.

14  943.051(3)(b).

15         2.  Has not been arrested, charged, or prosecuted as a

16  result of any incident reported in the investigative incident

17  report.

18         3.  Has not secured a prior sealing of an investigative

19  incident report under this section or a prior expunction or

20  sealing of a criminal history record under s. 943.0585, s.

21  943.059, former s. 893.14, former s. 901.33, or former s.

22  943.058, or from any jurisdiction outside the state.

23         4.  Is eligible for such a sealing to the best of his

24  or her knowledge or belief and does not have any other

25  petition to seal an investigative incident report or any

26  petition to seal or expunge a criminal history record which is

27  pending before any court.

28  

29  Any person who knowingly provides false information on the

30  sworn statement to the court commits a felony of the third

31  

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 1  degree, punishable as provided in s. 775.082, s. 775.083, or

 2  s. 775.084.

 3         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

 4  petitioning the court to seal an investigative incident

 5  report, the person seeking to seal the report shall apply to

 6  the department for a certificate of eligibility for sealing an

 7  investigative incident report. The department shall, by rule

 8  adopted under chapter 120, establish procedures pertaining to

 9  the application for and issuance of certificates of

10  eligibility for sealing investigative incident reports. The

11  department shall issue a certificate of eligibility for

12  sealing to a person who is the subject of an investigative

13  incident report if that person:

14         (a)  Remits a $75 processing fee to the department for

15  placement in the Department of Law Enforcement Operating Trust

16  Fund, unless the fee is waived by the executive director.

17         (b)  Has never, prior to the date on which the

18  application for a certificate of eligibility is filed, been

19  adjudicated guilty of a criminal offense or comparable

20  ordinance violation or adjudicated delinquent for committing a

21  felony or a misdemeanor specified in s. 943.051(3)(b).

22         (c)  Has never secured a prior sealing of an

23  investigative incident report under this section or a prior

24  expunction or sealing of a criminal history record under s.

25  943.0585, s. 943.059, former s. 893.14, former s. 901.33, or

26  former s. 943.058.

27         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

28         (a)  In judicial proceedings under this section, a copy

29  of the completed petition to seal shall be served upon the

30  agency that prepared the investigative incident report. The

31  agency that prepared the report may respond to the court by

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    Florida Senate - 2004                                  SB 2034
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 1  showing good cause why the petition to seal the report should

 2  not be granted. Failure to respond constitutes acquiescence in

 3  the sealing of the investigative incident report by the agency

 4  that prepared the report.

 5         (b)  If relief is granted by the court, the clerk of

 6  the court shall certify copies of the order to the agency that

 7  prepared the report. That agency shall forward the order to

 8  the department in all cases and to any agency to which the

 9  originating agency disseminated the investigative incident

10  report to which the order pertains.

11         (c)  The agency that prepared the investigative

12  incident report or any other criminal justice agency is not

13  required to act on an order to seal entered by a court if such

14  order does not comply with the requirements of this section.

15  Upon receipt of such an order, the department must notify the

16  issuing court, the agency that prepared the report, and the

17  petitioner or the petitioner's attorney of the reason for

18  noncompliance. The agency that prepared the report shall take

19  action within 60 days to petition the court to void the order.

20  There is not a cause of action, including contempt of court,

21  against any criminal justice agency for failure to comply with

22  an order to seal if the petitioner for such order failed to

23  obtain the certificate of eligibility as required by this

24  section or if the order does not comply with the requirements

25  of this section.

26         (d)  An order sealing an investigative incident report

27  pursuant to this section may not require that the report be

28  surrendered to the court, and the report shall continue to be

29  maintained by the agency that prepared the report and other

30  criminal justice agencies.

31  

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    Florida Senate - 2004                                  SB 2034
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 1         (4)  EFFECT OF SEALING AN INVESTIGATIVE INCIDENT

 2  REPORT.--

 3         (a)  The subject of an investigative incident report

 4  sealed under this section may lawfully deny or fail to

 5  acknowledge the incidents covered by the sealed report, except

 6  when the subject of the report:

 7         1.  Is a candidate for employment with a criminal

 8  justice agency;

 9         2.  Is a defendant in a criminal prosecution;

10         3.  Concurrently or subsequently petitions for relief

11  under this section, s. 943.0585, or s. 943.059;

12         4.  Is a candidate for admission to The Florida Bar;

13         5.  Is seeking to be employed or licensed by or to

14  contract with the Department of Children and Family Services

15  or the Department of Juvenile Justice or to be employed or

16  used by such contractor or licensee in a sensitive position

17  having direct contact with children, the developmentally

18  disabled, the aged, or the elderly as provided in s.

19  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

20  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

21  415.103, s. 985.407, or chapter 400; or

22         6.  Is seeking to be employed or licensed by the Office

23  of Teacher Education, Certification, Staff Development, and

24  Professional Practices of the Department of Education, any

25  district school board, or any local governmental entity that

26  licenses child care facilities.

27         (b)  Subject to the exceptions in paragraph (a), a

28  person who has been granted a sealing under this section may

29  not be held under any provision of law of this state to commit

30  perjury or to be otherwise liable for giving a false statement

31  

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    Florida Senate - 2004                                  SB 2034
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 1  by reason of such person's failure to recite or acknowledge a

 2  sealed investigative incident report.

 3         Section 3.  This act shall take effect October 1, 2004.

 4  

 5            *****************************************

 6                          SENATE SUMMARY

 7    Provides a procedure under which a court may order the
      sealing of an investigative incident report. Requires
 8    that the Department of Law Enforcement must issue a
      certification of eligibility before the court may seal a
 9    report. Requires that a petition to seal a report be
      served on the agency that prepared the report. Provides
10    that an agency need not comply with an order to seal a
      report if the court does not comply with the requirements
11    for sealing. Provides that a person who is the subject of
      an investigative incident report may lawfully deny or
12    fail to acknowledge an incident that is the subject of a
      sealed report. Provides that a person may deny the
13    incidents covered by a sealed report except when that
      person is a candidate for employment with a criminal
14    justice agency, a defendant in a criminal prosecution, or
      a candidate for admission to The Florida Bar, or is
15    seeking employment or licensing in a profession having
      direct contact with children, the developmentally
16    disabled, or the elderly. (See bill for details.)

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