Alternative Methods of Sealing Records

Many people desperately seek any method to seal their court records once it is determined that they no longer qualify to have their arrest record sealed or expunged by the typical means (sections 943.0585 and 943.059, Florida Statutes). This naturally turns to rule 2.420 in the Florida Rules of Judicial Administration  and section 943.0581, Florida Statutes – administrative expungement. I will explore both of these options with their pluses and minuses.

The Typical Means of Expunging – Sealing Record Are Not Available

Before we can dive into the “alternative” methods of sealing or expunging criminal records, we should first briefly explain the typical means of doing this. Under Florida law, a person who has been arrested (to include receiving a Notice to Appear) may have the opportunity to have that arrest record sealed or expunged (see, What is Expungement). To qualify a person must:

  • have never been convicted of any criminal offense,
  • have never had a previous record sealed or expunged (under typical means),
  • have had the charges against him dropped, dismissed, or never filed on (expungement), or
  • have had a “withhold of adjudication” and the charge is not prohibited (sealing).

See, Qualifying for an Expungement.

A person no longer qualifies once they have successfully had an arrest record sealed or expunged or they have been convicted (adjudicated guilty) of a criminal offense. See, Difference Between “Withhold” and “Adjudicated”). This problem often raises its head when a person is found guilty of a crime that requires an adjudication of guilt by law, e.g., DUI, naively pled guilty at an arraignment to a minor offense that included an adjudication of guilt (see, Criminal Case Dispositions), or have already had an arrest sealed or expunged.

The impact of a criminal record (see, What is a Background Check) often goes unnoticed for years, long after the ability to change the situation through court proceedings in the original case. People who are affected by their past are usually trying to obtain or change their employment, including seeking promotions. Other common reasons include applying to be a resident at certain apartment complexes and trying to be a chaperone for their child at a school function.

Once they realize that their criminal history is affecting them, they seek to have this minimized. They either qualify to have it sealed or expunged and go through the 8-12+ month process or they don’t qualify and they seek alternative methods.

Alternative Methods of Sealing Judicial Records

Below are alternative methods of sealing court records.

Rule 2.420

Florida Rule of Judicial Administration 2.420 is titled “Public Access to and Protection of Judicial Branch Records.” This rule is directly governed by article I, section 24(a) of the Florida Constitution (Access to Public Records and Meetings):

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

As noted, there are “exempted” records. Pursuant to rule 2.420, “confidential” records are exempt and may be released “only to the persons or organizations designated by law, statute, or court order.”

Confidential information includes information that is confidential under this rule or under a court order entered pursuant to this rule.

It is important to note that exempt records are confidential except for those people and organizations designated by law, statute, and court order. This means that records deemed confidential are still accessible to specific organizations (for specific reasons).

In order to have the court deem a record confidential, it has to be established that the confidentiality is required to:

  • prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice;
  • protect trade secrets;
  • protect a compelling governmental interest;
  • obtain evidence to determine legal issues in a case;
  • avoid substantial injury to innocent third parties;
  • avoid substantial injury to a party by disclosure of matters protected by a common law or privacy tight not generally inherent in the specific type of proceeding sought to be closed;
  • comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law;

Florida Rule of Judicial Administration 2.420(c)(9)(A).

The rule spells out specifically how the motion must be presented when requested civil records or when requesting criminal records to be sealed.

Drawbacks

If a record is deemed confidential pursuant to one of the reasons listed above, it is still accessible to specific entities for specific reasons. The Clerk of Court must allow access to confidential court records to persons “authorized by law.” Fla. R. Jud. Admin. 2.420(j)(1). This not only includes records determined to be confidential by motion but also those considered confidential by rule.

A record already deemed confidential by rule that is causing a person hardship cannot be “sealed” again to prevent this hardship. By example, Rule 2.420(d)(1)(B)(viii) specifically states that clinical records under the Baker Act are confidential. See, section 394.4615(7), Florida Statutes. However, section 394.4617(3)-(6) lists when and who may have access to it. If a person is finding a hardship because of the confidential record, then seeking to seal such record under rule 2.420 would be ineffective.

A sealed record by court order pursuant to rule 2.420 is no longer a public record and will not be posted and accessible on the Clerk of Court’s website. However, that is about all of the protections. You cannot lawfully deny that the event occurred as with the s. 943.0585-059 expungement-sealing. Moreover, the rule 2.420 sealing only applies to “court” records and extends no further. See, Rivero v. Farach, 43 F.L.W. D1091a (Fla. 3d DCA, May 16, 2018).

Possibilities

There are situations where seeking this type of relief may be positive for the person being affected by the record. First, the record sought to be sealed cannot already be deemed confidential (see above). Then the court must be convinced that the record must be sealed for one of the reasons listed in Rule 2.420(c)(9)(A).

A possible example is the case where someone (victim) seeks an injunction for protection against violence. That someone names a person as the respondent (aggressor). Once filed it becomes a public record. A name search through a Clerk of Court’s website will show that the person has been accused of a violent act.

If the alleged victim doesn’t appear at the hearing to determine its validity or is denied the relief, the “allegation” remains a public record. This can cause a hardship on the person accused in the petition. The filings in these cases are public records and it may benefit that person to try and have it sealed pursuant to rule 2.420.

The rule contemplates a variety of reasons why a record should be deemed confidential. You must follow the specific outline of how a motion presents this request.

Alternative Method of Expunging Non-Judicial Records

Section 943.0581, Florida Statutes – Administrative Expungement

This is a procedure for “expunging” an arrest record of an arrest made in error. The most obvious mistaken arrest is the mistaken identity arrest that sometimes occurs when a warrant is executed. People have been mistakenly arrested on a warrant because they have shared the same name as the person who the warrant was written for.

Many people believe that an administrative expungement applies when they have been arrested (not by mistake) when the charges have later been dropped or never even filed on. This is inaccurate even if the basis for the arrest was on a falsification. This is partly due to the remedy an administrative expungement provides (see Drawbacks, below).

There may be civil remedies that can compensate a person for false allegations that caused these damages (loss of liberty, employment, embarrassment, etc.) but that is beyond the scope of this post.

Drawbacks

The Florida administrative expungement will remove the arrest from FDLE’s criminal history. It does not remove the record from the Clerk of Court’s website (if a case was generated). To do that, you will have to follow through with a rule 2.420 sealing or use section 943.0585, Florida Statutes (expungement).

In order to have an arrest administratively expunged, the arresting agency has to agree and notify FDLE (through an application that the arresting agency submits) that the arrest was a mistake. Despite protective language within the statute, law enforcement agencies are loath to admit to any mistakes requiring additional legal steps to be taken.

Possibilities

If a mistaken arrest has occurred, you will have available the administrative expungement procedure. Typically, mistaken identities are cured once you have entered the county jail systems and fingerprints have been taken and processed. However, this process can take several days. It is imperative that you hire an attorney and file an action for the false arrest. This action will usually result in a settlement (you will not get rich) and that will provide documentation that can be used to convince the agency to apply to FDLE for the administrative expungement.

Conclusion

Neither of the above options are streamlined to be used in a casual basis. Both fall short of a complete erasure of the record. However, the administrative expungement and the judicial rule both cover a niche that can be beneficial for those people who fall within their bounds of relief.


For More Information Regarding Florida Expungements 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.

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.

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