Table of contents
- How Agencies are Notified that a Record is Expunged
- Who the Court Order Notifies
- Requirements of the Florida Administrative Code
- End Result
In this post the term Expunge and Seal are interchangeable unless it is specifically delineated. An order to expunge requires the destruction of criminal history record information. An order to seal requires the criminal history information to be made confidential. See, differences between sealed and expunged records.
How Agencies are Notified that a Record is Expunged
One of the biggest questions that people have, who have had their criminal record sealed or expunged under Florida law, is who gets notified of the order. Typically, people have the false presumption that once the judge signs the order their record disappears. Even though we live in a world of instant information, some things still have to occur in the slower methods that still exist. This includes notifications of court orders.
Who the Court Order Notifies
The order to expunge or seal requires the notification of specific agencies. It does not provide for the inclusion of additional agencies to be notified, although some attorneys are known to add these and some circuits also require a CC list to be added at the bottom of the order. Neither of these matter because the law provides for all of that.
Florida Supreme Court Standardized Practices
The Florida Rules of Criminal Procedure [Fla. R. Crim. P.] are rules that are developed by the Florida Supreme Court. They are established rules that all Florida courts must follow.
The Florida Supreme Court created a standardized documents for expunging or sealing a criminal history record. These can be found in Fla. R. Crim. P. 3.989. The documents include the form of the petition, the affidavit in support of the petition, and the order if the petition is granted.
Requirements of the Clerk of Court
The order to be used for either sealing or expunging a criminal record (which can be found in Fla. R. Crim, P. 3.989)* specifically instructs the Clerk of Court [Clerk] to forward a copy of the order to the following agencies:
- Prosecuting Authority (State Attorney or Statewide Prosecutor)
- Sheriff of the County where the Court exists
- and the arresting agency
These agencies are ordered to comply with the statutory law and appropriate regulations of the Florida Department of Law Enforcement [FDLE], also known as Administrative Code.
*Rule 3.989 provides standardized forms for sealing or expunging a record, however, some Clerks have “approved” forms on their website that may vary in appearance but complies with the Rule.
What the Statutory Law Requires
If an expungement is granted by the Court, the Clerk is required to follow the order which requires the above-noted agencies to be notified. Additionally, the statute requires that the Clerk notify the prosecuting authority, the arresting agency, and the FDLE.
The Arresting Agency
The statute requires the arresting agency to forward the order to any other agency that they have disseminated the criminal history information to which the order pertains. “Agency” means government entity. This can include the Sheriff’s Office, Jail, etc.
The Florida Department of Law Enforcement
The statute requires that the Department forward a copy of the order to the Federal Bureau of Investigation [FBI]. Today this notification may have been advanced through technology. Since the Department only maintains electronic data of the criminal history and that data is electronically forwarded to the FBI, removal of the data from the Department’s electronic database may be all that is required to comply with the order. See, expungements and the NCIC.
The Clerk of Court
The statute also requires the Clerk to forward a certified copy of the order to any other agency that the records of the court reflect has received criminal history information from the court to which the order pertains. This can include government agencies such as probation. Licensed agencies contracted with local courts may also be included in this list.
Requirements of Fla. R. Crim. P. 3.692 on the Clerk
Florida Rules of Procedure govern the courts. This would include the Clerks of the courts. In addition to the forms set out in Fla. R. Crim. P. 3.989, there is also Rule 3.692. This deals with procedure. It requires that the Clerk notify the agencies listed in the order and specifies how the Clerk shall remove the records to which the order pertains.
Requirements of the Florida Administrative Code
The Florida Administrative Code [FAC], referred to as FDLE regulations, are rules created by agencies to perform their duties. These are enforceable. There are two codes that pertain to expungements and sealings. These are:
- FAC 11C-7.006 Procedures on Court Ordered Expunctions
- FAC 11C-7.007 Procedures on Court Ordered Sealings
Both codes are similar and describe how a Certificate of Eligibility [COE] is obtained by a petitioner, how FDLE responds to an application for the COE, and what the arresting agency must do when it receives an order to seal or expunge from the court.
Requirements of Arresting Agency under FAC
An arresting agency, when it receives an order expunging or sealing a criminal history record, must identify the record to which the order pertains. Then it must forward:
- the Certificate of Eligibility,
- the Certified Copy of the Court Order, and
- a Letter of Transmittal,
to the FDLE.
The Letter or Transmittal must specifically identify the criminal history and be signed by the Chief Law Enforcement Officer or his or her designee.
The goal of the Statute, Rules, and Code, is to make sure that the directive of the order is accomplished. It may seem bureaucratic but it is most likely the only way for the order to take maximum effect.
You should note that the order is sent only to government agencies directly involved with the creation of the record, or what can be called primary agencies. Secondary agencies, those that received criminal history information from the primary agencies, are notified by the primary agencies. Whether primary or secondary, these are only government agencies of licensed contractors.
Private entities that obtain criminal history information through public record requests, sale, or bulk purchase, are not notified. Although most of these private entities will remove the expunged or sealed information from their records when notified, they may still share such information with their clients until they receive the notification. See, what to do after my record is expunged.