Most of my clients are concerned about what remains after an expungement (this includes sealing in Florida) has been granted. In order to answer this we have to know what a Florida expungement does.
What Information Remains Available After a Florida Expungement (Sealing)
In Florida, anytime a person is arrested, receives a notice-to-appear, or otherwise has a case number generated by the Clerk of Court regarding criminal charges – that person has an arrest record. This does not depend on the Florida Department of Law Enforcement having a record of the arrest.
Under Florida law, records of an arrest or criminal activity are public records. The Clerk of Courts of this state are responsible for making sure the courts work smoothly. This includes creating records and case numbers of all criminal cases. This also means that these records are easily accessible through the Clerk of Court’s website. See, Public Records Law.
What is an Arrest Record
For purposes of this writing, an arrest record is a record of an arrest or of a criminal incident, regardless of the ultimate outcome of the case, that is discoverable either on a public website or through a private service.
Before the internet, a criminal record was the record maintained by the Florida Department of Law Enforcement [FDLE] (which forwarded that information to the FBI’s national database). Obtaining a criminal background check meant going to local law enforcement and paying a small fee. The local agency would simply check FDLE’s statewide records.
If you wanted a criminal history that included the entire country, you had to obtain the records from the FBI. Obtaining those records could take weeks or require a very expensive service.
Today, private companies buy public records from FDLE and the Clerk’s office. Those companies catalog the data and then provide the same service over the internet. It is very easy to get a background check on anyone by purchasing this information from one of these companies.
Not only do these companies provide information about criminal histories, they also provide information on family members, where you have lived, vehicles registered in your name, and more. All of this information comes from public records that anyone has access to.
What is a Public Record
What Does an Expungement (Sealing) Do
Under Florida law, a record expungement or sealing will make the record of your arrest a non-public record. This means it can no longer be viewed or distributed to the public via online access or the sale of data.
Additionally, an expunged record requires that the arresting agency, sheriff’s office, the state attorney’s office, and any government agency that was informed of the arrest, destroy their records of the arrest. A sealed case requires that those agencies keep those records confidential.
FDLE and the Clerk of Courts must remove access of those records from the public. Neither entity can sell those records once the record has been expunged or sealed. What remains after an expungement or sealing with government agencies is nothing (as far as public access). See, Benefits of an Expungement.
What Remains After an Expungement
An order to expunge or seal a criminal arrest record is directed at government agencies that maintain those records. Since an order to seal or expunge a record is distributed only to government agencies, those private entities that have bought or otherwise collected your information still have those records. They will continue to sell your data until they are informed that your record is no longer a public record.
Since the record is no longer a public record, the selling of the data can make these companies liable for damages caused by the release of the information. The business model and defense of the selling of personal information on the web by these companies is the fact that the information sold is all “public record.”
Once these companies are informed, the more legitimate companies will remove the information from their database. There are bulk sellers of public records out there that are less scrupulous. The major ones, used by businesses, tend to abide by an order to expunge or seal a record once informed.
What You Can Do If You Have Expunged Your Record
Under Florida law, once your record is expunged or sealed you have the legal ability to deny the arrest occurred (there are a few exceptions to this that you should know). You must utilize this to maximize your benefits.
Under the Fair Credit Reporting Act, you have the right to know “who” is reporting “what” about you. If the arrest pops up you need to find out who reported it, and find out what was reported.
When you have an arrest record sealed or expunged you should receive a certified copy of the order (from the Clerk or your attorney). You should notify any entity still reporting your information by sending them a copy of the order.
Companies That Claim To Notify Private Companies
There are companies out there that claim they will notify and have your arrest data removed from private companies that sell public records. The claim is that it will be done faster than if you just allow them to figure it out themselves. Most of these companies require you to pay a fee for this service.
The idea of having all the private companies selling public records notified at once makes sense. That would be the last step in clearing your arrest. Unfortunately, you will have to investigate the claims of these services yourself before you pay them.
There is a non-profit (Foundation for Continuing Justice) that claims to provide the same service without a fee (they may ask for a donation). There is also a trend in the many states to expand the benefits of expunging (sealing) criminal records. Unfortunately, those wheels are slow in turning but turn they will. If new laws benefit your situation, you will be able to take advantage of the new laws.
Contact Eric J Dirga PA
Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.
If any corrections or errors are found please notify me as soon as possible.
Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located in Orlando, FL. He provides legal representation for expungement and sealing of records throughout the state of Florida.