It’s Expunged But Not Over
Eric J. Dirga, P.A., Office Orlando
Congratulations! Your Record Has Been Sealed or Expunged. Now What?
Once you have your criminal record sealed or expunged you can take full advantage of the law. One of those benefits is the lawful ability to deny that you were ever arrested for the offense (see the exceptions to this benefit). That benefit sounds great but how should you react if your arrest appears on a private company background check while looking for a job, an apartment, or from an inquisitive friend?
This page, hopefully, addresses these issues and helps you take full advantage of the law of sealing or expunging a criminal record in Florida. My clients can email me with their concerns that are not addressed below so that I can address them and provide the information here.
Know What Benefits You Receive From The Law
When you have your criminal arrest sealed or expunged your arrest records are made confidential (sealed) or are physically destroyed (expunged). This includes the records of the arresting agency, the sheriff’s office, the state attorney’s office, and the Florida Department of Law Enforcement [FDLE] (FDLE never physically destroys records since they maintain electronic data. Those records are made non-public and removed from public search but are otherwise kept for historical and statistical purposes).
When your criminal record is sealed or expunged it is no longer a public record (see, s. 943.0585 and 943.059, Fla. Stat.). It is exempt from disclosure under Chapter 119, Florida Statutes. This means that before your arrest record can be examined a judge must expressly allow it.
These records include those in the possession of the arresting agency, the sheriff’s department, the state attorney’s office, and the Florida Department of Law Enforcement. Any other official agency that received such information must also destroy or make confidential any records they maintain and cannot disclose absent a court order.
Additionally, if your record has been sealed or expunged you are legally allowed to deny that the arrest occurred. This means that on applications for jobs or apartments you can indicate that the arrest you had sealed or expunged never existed. This is probably the most valuable ability given to you once you have your criminal record ordered expunged or sealed.
Maximize The Advantages of the Law
To maximize the benefits of the expungement or sealing law make sure to obtain a certified copy of the order granting your petition. Once the case has been sealed or expunged you will no longer have the ability to get a copy of the order without motioning the court to unseal your file. (We always ask the court to send us a certified copy of the order for our clients.)
Once you have had your criminal record sealed or expunged you will be able to go to the Clerk of Court (where your case was filed) and request a records check. The term used may vary from Clerk to Clerk but basically it is a “history check” through their records to see what they have in their files.
They will require personal information to do the search such as name and date-of-birth – just give them anything they ask for. They also need to know the time range. I suggest having them search before and after the year you were arrested for a period of three to five years. Use your own judgment on the time frame you have them search.
They will do the search and they will not find the sealed or expunged arrest. They will then certify a document indicating the results. Use this document (not the order) to back-up your denial of the arrest.
Living In A State Other Than Florida
People who have a criminal record sealed or expunged in Florida but live in another state need to understand how the law’s protections cover them. First, understanding how other states receive criminal history data is important.
All arrest data in Florida is collected by the Florida Department of Law Enforcement [FDLE] which maintains it in a database called the Florida Crime Information Center [FCIC]. The FDLE sends that information up to the FBI (including whether an arrest has been sealed or expunged) which maintains a database called the National Crime Information Center [NCIC]. When a state obtains data from Florida they are accessing it through the NCIC.
The question becomes “does the FBI share data on arrests that have been expunged or sealed?” Especially, since state law does not apply to the federal government. I warn all my clients that information required for federal agencies to perform their jobs is disseminated. This includes FCC, DHS, Customs, and any other three letter agency. However, the records are not disseminated to the public.
This begs the question – “is arrest data that has been expunged/sealed disseminated to other state’s agencies?” The answer is “it should not.” The more important question that someone living in another state has to ask is “what are the state laws regarding a sealed or expunged case and when it needs to be disclosed?” Florida law provides many protections but each state is different and may have more or less protections. it is important to understand the laws within the state in which you live.
Most states today has some form of expungement process. It may be called something else but the idea is similar. Utilize all the protections that the Florida law provides but understand the differences that your state has.
Notifying Private Companies and Your Rights Under the Fair Credit Reporting Act
If you haven’t figured it out yet, there are a lot of private companies that collect public records and then database those records and sell them to people who will pay for it. These are not official agencies. They provide a service to people who don’t have the time to look for public records and need or want to know things about people. This includes employers.
Under most state laws a criminal record is a public record. These private companies defend their business by this fact, saying anyone has access to it. When your record has been sealed or expunged under Florida law it is no longer a public record.
Protections Under The Fair credit Reporting Act
The Fair Credit Reporting Act was set up to help consumers with their credit scores but it applies to all consumer reporting agencies. Under the law you must be told if information from a consumer reporting agency has been used against you.
Anyone who uses a consumer report to deny your application for credit, insurance, employment, housing, or another adverse action against you must (1) tell you, and (2) must give you the name, address, and phone number of the agency that provided the information.
You also have the right to dispute incomplete or inaccurate information. If you identify information being reported that is incomplete or inaccurate, and you report it to the consumer reporting agency, the agency must investigate it unless it is frivolous. Consumer reporting agencies must correct or delete inaccurate, incomplete, or unverifiable information.
For more information click here.