Under Florida law the process that people, who have been arrested (or received a Notice to Appear), use to have their criminal record made a non-public record is called an expungement or record sealing. Additionally, specific government agencies must either destroy or make confidential (non-public) the records subject to the expungement or sealing order.
The standard expungement comes in two forms, a record expungement and a record sealing. Both achieve the most of the same goals, however they have different qualifications.
…And the Differences Between Expungement and Sealing
Let’s get into the details…
Florida Statutes’ Definition
Chapter 943 defines an Expungement this way:
s. 943.045(16), Fla. Stat. “Expunction of a criminal history record” means the court-ordered physical destruction or obliteration of a record or portion of a record by any criminal justice agency having custody thereof, or as prescribed by the court issuing the order, except that criminal history records in the custody of the [Florida] department [of law enforcement] must be retained in all cases for purposes of evaluating subsequent requests by the subject of the record for sealing or expunction, or for purposes of recreating the record in the event an order to expunge is vacated by a court of competent jurisdiction.
…and a Sealing like this:
s. 943.045(19), Fla. Stat. “Sealing of a criminal history record” means the preservation of a record under such circumstances that it is secure and inaccessible to any person not having a legal right of access to the record or the information contained and preserved therein.
Let’s dissect these definitions before we go further.
First, The Expungement
An expungement requires the physical destruction of a record by any criminal justice agency. Let’s take a look at who they are:
s. 943.045(11), Fla. Stat.: “Criminal justice agency” means:
(a) A court.
(b) The [Florida D]epartment [of Law Enforcement].
(c) The Department of Juvenile Justice.
(d) The protective investigations component of the Department of Children and Families, which investigates the crimes of abuse and neglect.
(e) Any other governmental agency or subunit thereof that performs the administration of criminal justice pursuant to a statute or rule of court and that allocates a substantial part of its annual budget to the administration of criminal justice.
(f) The investigations component of the Department of Financial Services which investigates the crimes of fraud and official misconduct in all public assistance given to residents of this state or provided to others by this state.
Now we will see what the administration of criminal justice means so we can figure out the “other governmental agencies”:
s. 943.045(2), Fla. Stat.: “Administration of criminal justice” means performing functions of detection, apprehension, detention, pretrial release, posttrial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders by governmental agencies. The administration of criminal justice includes criminal identification activities and the collection, processing, storage, and dissemination of criminal justice information by governmental agencies.
This definition above encompasses a lot of agencies not listed specifically in subsection (11), including the State Attorney’s Office [prosecution] and Probation [correctional supervision], among others. The key word regarding all that this encompasses is “governmental.”
Now let’s look at what records they are talking about:
s. 943.045(6), Fla. Stat.: “Criminal history record” means any nonjudicial record maintained by a criminal justice agency containing criminal history information.
And, just to be clear, let’s look at what criminal history information means:
s. 943.045(5), Fla. Stat.: “Criminal history information” means information collected by criminal justice agencies on persons, which information consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges and the disposition thereof. The term does not include identification information, such as biometric records, if the information does not indicate involvement of the person in the criminal justice system.
The first thing that should stand out is that this law is enforceable upon only nonjudicial government agencies. Wait, isn’t “Court” in the definition of Criminal Justice Agency? – and the answer is yes but, under the statute, it is applicable to a court only in its capacity as a criminal justice agency. The Florida Rules of Criminal Procedure address the judicial records.
Now, The Sealing of Records
Wow, the definition of a Record Sealing seems a lot less robust than an expungement. Well, yes at first glance. However, that is not really the case. “Any person not having a legal right of access” seems to suggest there are people who do have access – and that seems troubling. But let’s find out who those people are, and for that we go to the “Court-ordered sealing of criminal history records” statute:
s. 943.059(6), Fla. Stat.: EFFECT OF ORDER.—
(a) A criminal history record of a minor or an adult which is ordered sealed by a court pursuant to this section is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the following persons:
1. The subject of the record;
2. The subject’s attorney;
3. Criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law;
4. Judges in the state courts system for the purpose of assisting them in their case-related decision making responsibilities, as set forth in s. 943.053(5); or
5. To those entities set forth in subparagraphs (b)1., 4.-6., and 8.-10. for their respective licensing access authorization and employment purposes.
So the sealing of a record make’s it non-public, confidential, and limits its disclosure to specific people and agencies for specific purposes. Let’s compare this with the expungement statute:
s. 943.0585(6), Fla. Stat.: EFFECT OF EXPUNCTION ORDER.—
(a) Any criminal history record of a minor or an adult which is ordered expunged by a court of competent jurisdiction pursuant to this section must be physically destroyed or obliterated by any criminal justice agency having custody of such record, except that any criminal history record in the custody of the [Florida D]epartment [of Law Enforcement] must be retained in all cases. A criminal history record ordered expunged which is retained by the [Florida D]epartment [of Law Enforcement] is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution and not available to any person or entity except upon order of a court of competent jurisdiction. A criminal justice agency may retain a notation indicating compliance with an order to expunge.
“Not available to any person” seems a bit more comprehensive. Now let’s look at who those other people are “in subparagraphs (b)1., 4.-6., and 8.-10” of the Sealing statute.
s. 943.059(6)(b), Fla. Stat.:
1. Is a candidate for employment with a criminal justice agency;
. . .
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
6.a. Is seeking to be employed or licensed by, or contract with, the Department of Education, . . . the Florida School for the Deaf and the Blind . . ., the Florida Virtual School . . ., a virtual instruction program . . ., a charter school . . ., a hope operator . . ., an alternative school . . ., a private or parochial school, or a local governmental entity that licenses child care facilities;
b. Is seeking to be employed or used by a contractor or licensee under sub-subparagraph a.; or
c. Is a person screened under s. 1012.467;
. . .
8. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;
9. Is seeking to be appointed as a guardian . . .; or
10. Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm.
Most if not all of these agencies are state licensed and deal directly with the elderly, children, the mentally or physically handicapped. When seeking employment with these entities you must disclose the sealed arrest and they will run a Level I or Level II criminal history and be notified of your sealed arrest. These are also the agencies to which you cannot deny the arrest if asked during employment screening.
Let’s Compare the Benefits
Although the definitions seem very different, let’s see what the benefits are for expunging and for sealing your record.
First, Benefits of Expungement
Besides the benefits regarding the destruction and confidentiality of records, people who have had their record expunged also have the ability to legally deny the arrest occurred.
s. 943.0585(6)(b), Fla. Stat.: 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, except when . . . (applying for employment or licensing through specified entitled entities).
Benefits of Sealing Your Record
Now let’s look at what the sealing statute (s. 943.059, Fla. Stat.) says about this.
s. 943.059(6)(b) The subject of the 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, except when . . . (applying for employment or licensing through specified entitled entities).
Except for some grammatical changes, the benefits are exactly the same as an expunged record. (Please review the exceptions to the denial benefit)
Things You Need to Do Once Your Record is Sealed or Expunged
The Florida Department of Law Enforcement says:
Florida law, Section 943.053, Florida Statutes, makes adult criminal history records public, with special provisions for access, unless the record has been sealed or expunged. A sealed record is placed under highly restricted access. An expunged record is removed from record systems or files and destroyed (also called expunction). The law currently provides several means to seal or expunge certain categories of Florida criminal history records (both adult and juvenile). The records may include arrests, charges and case dispositions.
(See FDLE Page)
The Florida Attorney General has put these definitions out there:
AGO 75-29, February 12, 1975: Public records and the definition of expunge – Attorney General Opinion. Question whether the term expunge meant the literal destruction of records or removal of all references to the defendant and sealing of remaining record if needed in the future. Answer was that expunge meant physical destruction of records.
AGO 2000-16, March 8, 2000: Criminal history records, expungement – Question: What information in a criminal history record is subject to expungement and to what extent must the record be obliterated or destroyed in order to satisfy the requirements of section 943.0585, Florida Statutes? The information that must be expunged is information maintained by the criminal justice agency identifiable to the individual’s arrest, detention, indictments, informations, or other criminal charges and the disposition thereof.
Federal Level: National Crime Prevention and Privacy Compact
Florida is a participant state within the National Crime Prevention and Privacy Compact [Compact](See, s. 943.0543, Fla. Stat.). This is a Federal program that shares criminal history information between member states, authorizing states, and the Federal government [FBI].
According to the definition within the Compact, a sealed record is, with respect to adult records:
- not available for criminal justice uses;
- not supported by fingerprints or other accepted means of positive identification; or
- subject to restrictions on dissemination for noncriminal justice purposes pursuant to a court order related to a particular subject or pursuant to a Federal or State statute that requires action on a sealing petition filed by a particular record subject
And with respect to juveniles, whatever each State determines is a sealed record under its own law and procedure.
A “sealed” record would include a record that had been expunged (s. 943.0585, Fla. Stat.) or sealed (s. 943.059, Fla. Stat.) under Florida law.
How Federal Records are Disclosed
ARTICLE IV–AUTHORIZED RECORD DISCLOSURES
(a) State criminal history record repositories
To the extent authorized by section 552a of Title 5, (commonly known as the “Privacy Act of 1974”), the FBI shall provide on request criminal history records (excluding sealed records) to State criminal history record repositories for noncriminal justice purposes allowed by Federal statute, Federal Executive order, or a State statute that has been approved by the Attorney General and that authorizes national indices checks.
(b) Criminal justice agencies and other governmental or nongovernmental agencies
The FBI, to the extent authorized by section 552a of Title 5, (commonly known as the “Privacy Act of 1974”), and State criminal history record repositories shall provide criminal history records (excluding sealed records) to criminal justice agencies and other governmental or nongovernmental agencies for noncriminal justice purposes allowed by Federal statute, Federal Executive order, or a State statute that has been approved by the Attorney General, that authorizes national indices checks.
Sealed records would include those that have been expunged or sealed under Florida law.
See also, Seal/Expunged Records and the NCIC.
Florida Criminal Record Disclosure
The Florida Department of Law Enforcement [FDLE] maintains statewide records of all arrests (and notices to appear). The FDLE also manages the Expungement and Sealing process for the State. Florida criminal records are maintained electronically (digitally) by FDLE and the FBI accesses it by real-time digital source. This means that the FBI does not have access to a criminal record that has been removed by FDLE. Additionally, States, other than Florida, will also lose that access since their source for Florida criminal histories comes from the FBI database.
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