Florida Senate - 2017 COMMITTEE AMENDMENT Bill No. CS for CS for SB 450 Ì303428+Î303428 LEGISLATIVE ACTION Senate . House Comm: RCS . 04/13/2017 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Appropriations (Brandes) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Effective upon the same date that SB 448 or 6 similar legislation takes effect, if such legislation is adopted 7 in the same legislative session or an extension thereof and 8 becomes a law, subsection (6) is added to section 901.40, 9 Florida Statutes, as created by SB 448, 2017 Regular Session, to 10 read: 11 901.40 Prearrest diversion programs.— 12 (6) PUBLIC RECORDS EXEMPTION.—The personal identifying 13 information of an adult participating in a civil citation or 14 prearrest diversion program is exempt from s. 119.07(1) and s. 15 24(a), Art. I of the State Constitution. The exemption does not 16 apply to the personal identifying information of an adult who 17 fails to complete the civil citation or prearrest diversion 18 program. This exemption applies to personal identifying 19 information held by a law enforcement agency, a program services 20 provider, or the entity operating an adult civil citation or 21 prearrest diversion program before, on, or after the effective 22 date of this exemption. This subsection is subject to the Open 23 Government Sunset Review Act in accordance with s. 119.15 and 24 shall stand repealed on October 2, 2022, unless reviewed and 25 saved from such repeal through reenactment by the Legislature. 26 Section 2. Effective upon the same date that SB 448 or 27 similar legislation takes effect, if such legislation is adopted 28 in the same legislative session or an extension thereof and 29 becomes a law: The Legislature finds that it is a public 30 necessity that the personal identifying information of an adult 31 participating in a civil citation or prearrest diversion program 32 be exempt from s. 119.07(1), Florida Statutes, and s. 24(a), 33 Article I of the State Constitution. The exemption does not 34 apply to the personal identifying information of an adult who 35 fails to complete the civil citation or prearrest diversion 36 program. The goal of such programs is to give a second chance to 37 adults who commit misdemeanor offenses and allow them the 38 opportunity to avoid having an arrest record. Such goal would be 39 defeated if the personal identifying information of such adults 40 were not exempt from disclosure and, consequently, would create 41 negative consequences for these adults. If the public were able 42 to obtain the personal identifying information of these adults, 43 the disclosure might adversely impact the civil citation or 44 prearrest diversion program. For these reasons, the Legislature 45 finds that it is a public necessity that the personal 46 identifying information of an adult participating in a civil 47 citation or prearrest diversion program be exempt from public 48 records requirements. 49 Section 3. Effective July 1, 2018, and only if SB 118 or 50 similar legislation is adopted in the same legislative session 51 or an extension thereof and becomes a law, subsection (2) is 52 added to section 943.0586, Florida Statutes, as created by SB 53 118, 2017 Regular session, to read: 54 943.0586 Administrative sealing of criminal history 55 records.— 56 (2) The sealing under this section of a criminal history 57 record has the same effect as a sealing under s. 943.059(4). 58 Section 4. Effective July 1, 2018, and only if SB 118 or 59 similar legislation is adopted in the same legislative session 60 or an extension thereof and becomes a law, subsection (4) of 61 section 943.059, Florida Statues, is amended to read: 62 943.059 Court-ordered sealing of criminal history records. 63 The courts of this state shall continue to have jurisdiction 64 over their own procedures, including the maintenance, sealing, 65 and correction of judicial records containing criminal history 66 information to the extent such procedures are not inconsistent 67 with the conditions, responsibilities, and duties established by 68 this section. Any court of competent jurisdiction may order a 69 criminal justice agency to seal the criminal history record of a 70 minor or an adult who complies with the requirements of this 71 section. The court shall not order a criminal justice agency to 72 seal a criminal history record until the person seeking to seal 73 a criminal history record has applied for and received a 74 certificate of eligibility for sealing pursuant to subsection 75 (2). A criminal history record that relates to a violation of s. 76 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, 77 s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, 78 chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, 79 s. 916.1075, a violation enumerated in s. 907.041, or any 80 violation specified as a predicate offense for registration as a 81 sexual predator pursuant to s. 775.21, without regard to whether 82 that offense alone is sufficient to require such registration, 83 or for registration as a sexual offender pursuant to s. 84 943.0435, may not be sealed, without regard to whether 85 adjudication was withheld, if the defendant was found guilty of 86 or pled guilty or nolo contendere to the offense, or if the 87 defendant, as a minor, was found to have committed or pled 88 guilty or nolo contendere to committing the offense as a 89 delinquent act. The court may only order sealing of a criminal 90 history record pertaining to one arrest or one incident of 91 alleged criminal activity, except as provided in this section. 92 The court may, at its sole discretion, order the sealing of a 93 criminal history record pertaining to more than one arrest if 94 the additional arrests directly relate to the original arrest. 95 If the court intends to order the sealing of records pertaining 96 to such additional arrests, such intent must be specified in the 97 order. A criminal justice agency may not seal any record 98 pertaining to such additional arrests if the order to seal does 99 not articulate the intention of the court to seal records 100 pertaining to more than one arrest. This section does not 101 prevent the court from ordering the sealing of only a portion of 102 a criminal history record pertaining to one arrest or one 103 incident of alleged criminal activity. Notwithstanding any law 104 to the contrary, a criminal justice agency may comply with laws, 105 court orders, and official requests of other jurisdictions 106 relating to sealing, correction, or confidential handling of 107 criminal history records or information derived therefrom. This 108 section does not confer any right to the sealing of any criminal 109 history record, and any request for sealing a criminal history 110 record may be denied at the sole discretion of the court. 111 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal 112 history record of a minor or an adult which is ordered sealed by 113 a court pursuant to this section or sealed administratively 114 pursuant to s. 943.0586 is confidential and exempt from the 115 provisions of s. 119.07(1) and s. 24(a), Art. I of the State 116 Constitution and is available only to the person who is the 117 subject of the record, to the subject’s attorney, to criminal 118 justice agencies for their respective criminal justice purposes, 119 which include conducting a criminal history background check for 120 approval of firearms purchases or transfers as authorized by 121 state or federal law, to judges in the state courts system for 122 the purpose of assisting them in their case-related 123 decisionmaking responsibilities, as set forth in s. 943.053(5), 124 or to those entities set forth in subparagraphs (a)1., 4., 5., 125 6., 8., 9., and 10. for their respective licensing, access 126 authorization, and employment purposes. 127 (a) The subject of a criminal history record sealed under 128 this section, s. 943.0586, or under other provisions of law, 129 including former s. 893.14, former s. 901.33, and former s. 130 943.058, may lawfully deny or fail to acknowledge the arrests 131 covered by the sealed record, except when the subject of the 132 record: 133 1. Is a candidate for employment with a criminal justice 134 agency; 135 2. Is a defendant in a criminal prosecution; 136 3. Concurrently or subsequently petitions for relief under 137 this section, s. 943.0583, or s. 943.0585; 138 4. Is a candidate for admission to The Florida Bar; 139 5. Is seeking to be employed or licensed by or to contract 140 with the Department of Children and Families, the Division of 141 Vocational Rehabilitation within the Department of Education, 142 the Agency for Health Care Administration, the Agency for 143 Persons with Disabilities, the Department of Health, the 144 Department of Elderly Affairs, or the Department of Juvenile 145 Justice or to be employed or used by such contractor or licensee 146 in a sensitive position having direct contact with children, the 147 disabled, or the elderly; 148 6. Is seeking to be employed or licensed by the Department 149 of Education, a district school board, a university laboratory 150 school, a charter school, a private or parochial school, or a 151 local governmental entity that licenses child care facilities; 152 7. Is attempting to purchase a firearm from a licensed 153 importer, licensed manufacturer, or licensed dealer and is 154 subject to a criminal history check under state or federal law; 155 8. Is seeking to be licensed by the Division of Insurance 156 Agent and Agency Services within the Department of Financial 157 Services; 158 9. Is seeking to be appointed as a guardian pursuant to s. 159 744.3125; or 160 10. Is seeking to be licensed by the Bureau of License 161 Issuance of the Division of Licensing within the Department of 162 Agriculture and Consumer Services to carry a concealed weapon or 163 concealed firearm. This subparagraph applies only in the 164 determination of an applicant’s eligibility under s. 790.06. 165 (b) Subject to the exceptions in paragraph (a), a person 166 who has been granted a sealing under this section, s. 943.0586, 167 former s. 893.14, former s. 901.33, or former s. 943.058 may not 168 be held under any provision of law of this state to commit 169 perjury or to be otherwise liable for giving a false statement 170 by reason of such person’s failure to recite or acknowledge a 171 sealed criminal history record. 172 (c) Information relating to the existence of a sealed 173 criminal record provided in accordance with the provisions of 174 paragraph (a) is confidential and exempt from the provisions of 175 s. 119.07(1) and s. 24(a), Art. I of the State Constitution, 176 except that the department shall disclose the sealed criminal 177 history record to the entities set forth in subparagraphs (a)1., 178 4., 5., 6., 8., 9., and 10. for their respective licensing, 179 access authorization, and employment purposes. An employee of an 180 entity set forth in subparagraph (a)1., subparagraph (a)4., 181 subparagraph (a)5., subparagraph (a)6., subparagraph (a)8., 182 subparagraph (a)9., or subparagraph (a)10. may not disclose 183 information relating to the existence of a sealed criminal 184 history record of a person seeking employment, access 185 authorization, or licensure with such entity or contractor, 186 except to the person to whom the criminal history record relates 187 or to persons having direct responsibility for employment, 188 access authorization, or licensure decisions. A person who 189 violates the provisions of this paragraph commits a misdemeanor 190 of the first degree, punishable as provided in s. 775.082 or s. 191 775.083. 192 (d) The expansion of the public records exemption under 193 this subsection to include records sealed administratively under 194 s. 943.0586 is subject to the Open Government Sunset Review Act 195 in accordance with s. 119.15 and shall stand repealed on October 196 2, 2023, unless reviewed and saved from repeal through 197 reenactment by the Legislature. If the expansion of the 198 exemption is not saved from repeal, this subsection shall revert 199 to that in existence on June 30, 2017, except that any 200 amendments to such text other than by this act shall be 201 preserved and continue to operate to the extent that such 202 amendments are not dependent upon the portions of text which 203 expire pursuant to this paragraph. 204 Section 5. Effective July 1, 2018, and only if SB 118 or 205 similar legislation is adopted in the same legislative session 206 or an extension thereof and becomes a law: The Legislature finds 207 that it is a public necessity that the criminal history records 208 of a minor or an adult, which have been administratively sealed 209 pursuant to s. 943.0586, Florida Statutes, because the case was 210 not filed, was dismissed or nolle prosequi, or resulted in the 211 granting of a judgment of acquittal or verdict of not guilty, be 212 made confidential and exempt from s. 119.07(1), Florida 213 Statutes, and s. 24(a), Article I of the State Constitution. The 214 presence of a criminal history record in an individual’s past 215 which has not been validated through criminal proceedings can 216 jeopardize his or her ability to obtain education, employment, 217 and other achievements necessary to becoming a productive, 218 contributing, self-sustaining member of society. Such negative 219 consequences are unwarranted in cases in which the individual 220 was not found to have committed the offense that is the subject 221 of the sealed criminal history record. For these reasons, the 222 Legislature finds that it is a public necessity that the 223 criminal history records of a minor or an adult which have been 224 administratively sealed be confidential and exempt from public 225 records requirements. 226 Section 6. Except as otherwise expressly provided in this 227 act, this act shall take effect on July 1, 2017. 228 229 ================= T I T L E A M E N D M E N T ================ 230 And the title is amended as follows: 231 Delete everything before the enacting clause 232 and insert: 233 A bill to be entitled 234 An act relating to public records; amending s. 901.40, 235 F.S.; creating an exemption from public records 236 requirements for the personal identifying information 237 of adults who participate in a civil citation or 238 prearrest diversion program; providing applicability; 239 providing retroactive application; providing for 240 future review and repeal of the exemption; providing a 241 statement of public necessity; amending s. 943.0586, 242 F.S.; providing applicability for the administrative 243 sealing of specified criminal history records; 244 amending s. 943.059, F.S.; expanding an existing 245 public records exemption to include the administrative 246 sealing of specified criminal history records; 247 conforming provisions to changes made by the act; 248 providing for future review and repeal of the expanded 249 exemption; providing for reversion of specified 250 language if the exemption is not saved from repeal; 251 providing a statement of public necessity; providing 252 effective dates, including contingent effective dates.