denial rule exceptions

Exceptions To Expungement Denial Benefit

The biggest benefit you receive when your record has been sealed or expunged under Florida law may be the legal ability to deny the arrest ever occurred. However, there are a few denial rule exceptions that you must know.

When You Have to Disclose Your Expunged or Sealed Arrest

There are several exceptions to the denial rule that you must follow. These generally involve employment with state agencies or entities contracted with the state that directly deal with children, the elderly, or the mentally or physically handicapped. It also involves anything that can be considered “caregiver” or a position of “trust.”

Let’s first take a look at the deniability benefit you receive once your record has been sealed or expunged.

Expunged And Sealed Arrests Are No Longer Public Records

Once your criminal record has been sealed or expunged, the records with the:

  • Clerk’s Office are no longer public. No one can access those records without a court order to do so (see my webpage What is an Expungement).
  • Criminal records held by Law Enforcement are also made confidential. If they are expunged they have to physically destroy their files. This includes the State Attorney’s Office (See my video on What is a Florida Expungement for more detail)..
  • The Florida Department of Law Enforcement is not ordered to destroy their records, however they have to remove it from public dissemination.

In Most Instances You Can Deny The Arrest Happened After Your Record Is Sealed / Expunged

Florida law allows you to deny that your expunged or sealed arrest ever occurred. The actual language of the statute is as follows:

[Expungement] The person who is the subject of a criminal history record that is expunged under this section or under other provisions of law . . . may lawfully deny or fail to acknowledge the arrests covered by the expunged record.

[Sealing] The subject of a criminal history record sealed under this section or under other provisions of law . . . may lawfully deny or fail to acknowledge the arrests covered by the sealed record.

This is the biggest benefit of expunging or sealing your criminal arrest record. Many private companies collect public records (often times sold to them by the county clerk’s office or F.D.L.E.) prior to a record being sealed or expunged. They then sell this information online. After a record is sealed or expunged these companies may still be selling this information because they are not aware that the record is no longer a public record. The ability to lawfully deny the arrest gives you a huge advantage over those companies – if you take advantage of it.

Denial Rule Exceptions

There are exceptions when you can deny that you have been arrested. It is important to know these exceptions before you decide to seal or expunge your record and very important to know these after you have sealed or expunged your record.

These mainly address employers for businesses that deal with children, the elderly, or the physically or mentally handicapped. These include Nursing Homes and Day Care Centers. It also includes applications for employment with a criminal justice agency including the fire department.

F.D.L.E. keeps this list updated on their website of ⚖ Entitled Agencies.

Below are three Attorney General Opinions regarding the denial rule for expungements.

AGO 86-56, June 19, 1986: Expungement order, law enforcement certification – Law enforcement applicant who has had record expunged under s. 943.058(2)(a)-(d), F.S., may not lawfully deny or fail to disclose criminal history records that would disqualify candidate under s. 943.13(4), F.S. if conviction was for a felony or misdemeanor involving perjury or false statement.

AGO 86-14, February 12, 1986: Effect on expunction on personnel file – Law enforcement officer hired by municipality afterward expunged an arrest. City asked if information concerning arrest in personnel file was required to be expunged. Summary: Yes and order was not to be placed in personnel file.

AGO 84-85, August 22, 1984: Employment in criminal justice agency, expunged record – Indicating that a candidate for employment with a criminal justice agency, who has had a criminal record expunged, is under no authority to disclose this information to the criminal justice agency. This has since been addressed by statute and is no longer the law.

Farach v. Rivero, 305 So.3d 54 (Fla. 3d DCA 2019)

In this case, the court dealt with whether the petitioner (for a writ of certiorari) had reached the requisite need for such relief to be granted – the petitioner did not. That is the ruling. However, the dicta of this case is illuminating for a person who is seeking or has had a criminal arrest record expunged or sealed.

Many believe that having a record sealed or expunged is a magic bullet that wipes the record off the face of the Earth. As the exceptions to the denial benefit clearly show – there is no magic bullet. Additionally, the dicta of the Farach case also exposes some truths that people who have their record expunged/sealed need to be reminded.

“…the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories. It is not intended to create an Orwellian scheme whereby previously public information—long maintained in official records—now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.” (citing, G.D. v. Kenny, 205, 15 A. 3d 300, 315-16 (2011))

“The [expungement] statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods… the statute does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested.” Citing, Martin v. Hearst Corp., 777 F.3d 546, 551 (2d Cir. 2015)

“The [expungement] statute does not, however, impose any duty on members of the public who are aware of the conviction to pretend that it does not exist. In other words, the statute authorizes certain persons to misrepresent their own past. It does not make that representation true.” Citing, Bahr v. Statesman Journal Co., 51 Or.App. 177, 624 P.2d 664, 666 (1981)

“There is nothing in the statute or the legislative history to suggest that, once the fact of a conviction is sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of defamation.” Citing, Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128, 1133 (1978)

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