Model Legislation/Bill Drafting Juvenile Records

Juvenile Confidentiality/Expungement/Diversion 943.0515 Retention of criminal history records of minors.— (1)(a) The Criminal Justice Information Program shall retain the criminal history record of a minor who is classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison under chapter 985 for 5 years after the date the offender reaches 21 years of age until the offender is at least 21 years of age and is no longer in the custody of DJJ, at which time the record shall be expunged unless it meets the criteria of paragraph (2)(a) or paragraph (2)(b). (b) If the minor is not classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison under chapter 985, the program shall retain the minor’s criminal history record for 5 years after the date the minor reaches 19 years of age, at which time the record shall be expunged unless it meets the criteria of paragraph (2)(a) or paragraph (2)(b). (2)(a) If a person 18 years of age or older is charged with or convicted of a forcible felony and the person’s criminal history record as a minor has not yet been destroyed, the person’s record as a minor must be merged with the person’s adult criminal history record and must be retained as a part of the person’s adult record. (b) If, at any time, a minor is adjudicated as an adult for a forcible felony, the minor’s criminal history record prior to the time of the minor’s adjudication as an adult must be merged with his or her record as an adjudicated adult. (3) Records maintained by juvenile court, juvenile probation and law enforcement agencies that relate to dismissed cases, cases in which the juvenile was ruled not involved, or cases where charges were not substantiated shall be expunged immediately following the court’s discharge of the case, without any application or action necessary on the part of the juvenile. (4) (3) Notwithstanding any other provision of this section, the Criminal Justice Information Program shall retain the criminal history record of a minor adjudicated delinquent for a violation committed on or after July 1, 2007, as provided in s. 943.0435(1)(a)1.d. Such records may not be destroyed and must be merged with the person’s adult criminal history record and retained as a part of the person’s adult record. 943.0582 Prearrest, postarrest, or teen court diversion program expunction.— (1) Notwithstanding any law dealing generally with the preservation and destruction of public records, the department may provide, by rule adopted pursuant to chapter 120, for the expunction of any nonjudicial record of the arrest of a minor who has successfully completed a prearrest or postarrest diversion program for minors as authorized by s. 985.125. (2)(a) As used in this section, the term “expunction” has the same meaning ascribed in and effect as s. 943.0585, except that: 1. The provisions of s. 943.0585(4)(a) do not apply, except that the criminal history record of a person whose record is expunged pursuant to this section shall be made available only to criminal justice agencies for the purpose of determining eligibility for prearrest, postarrest, or teen court diversion programs; when the record is sought as part of a criminal investigation; or when the subject of the record is a candidate for employment with a criminal justice agency. For all other purposes, a person whose record is expunged under this section may lawfully deny or fail to acknowledge the arrest and the charge covered by the expunged record. 2. Records maintained by local criminal justice agencies in the county in which the arrest occurred that are eligible for expunction pursuant to this section shall be sealed as the term is used in s. 943.059. (b) As used in this section, the term “nonviolent misdemeanor” includes simple assault or battery when prearrest or postarrest diversion expunction is approved in writing by the state attorney for the county in which the arrest occurred. (3) The department shall expunge the nonjudicial arrest record of a minor who has successfully completed a prearrest or postarrest diversion program if that minor: (a) Submits an application for prearrest or postarrest diversion expunction, on a form prescribed by the department, signed by the minor’s parent or legal guardian, or by the minor if he or she has reached the age of majority at the time of applying. (b) Submits the application for prearrest or postarrest diversion expunction no later than 12 months after completion of the diversion program. (c) Submits to the department, with the application, an official written statement from the state attorney for the county in which the arrest occurred certifying that he or she has successfully completed that county’s prearrest or postarrest diversion program, that his or her participation in the program was based on an arrest for a nonviolent misdemeanor, and that he or she has not otherwise been charged by the state attorney with or found to have committed any criminal offense or comparable ordinance violation. (d) (a) Participated in a The prearrest or postarrest diversion program that expressly authorizes or permits such expunction to occur or (e) (b) Participated Participation in a prearrest or postarrest the diversion program was based on an arrest for a nonviolent misdemeanor that would not qualify as an act of domestic violence as that term is defined in s.741.28. (f) Has never, prior to filing the application for expunction, been charged by the state attorney with or been found to have committed any criminal offense or comparable ordinance violation. (4) The department is authorized to charge a $75 processing fee for each request received for prearrest or postarrest diversion program expunction, for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director. (5)(4) Expunction or sealing granted under this section does not prevent the minor who receives such relief from petitioning for the expunction or sealing of a later criminal history record as provided for in ss. 943.0583, 943.0585, and 943.059, if the minor is otherwise eligible under those sections. We suggest striking current 985.04 and replacing it. 985.04 Oaths; records; confidential information.— (1) Except as provided in subsections (2), (3), (6), and (7) and s. 943.053, all information obtained under this chapter in the discharge of official duty by any judge, any employee of the court, any authorized agent of the department, the Florida Commission on Offender Review, the Department of Corrections, the juvenile justice circuit boards, any law enforcement agent, or any licensed professional or licensed community agency representative participating in the assessment or treatment of a juvenile is confidential and may be disclosed only to the authorized personnel of the court, the department and its designees, the Department of Corrections, the Florida Commission on Offender Review, law enforcement agents, school superintendents and their designees, any licensed professional or licensed community agency representative participating in the assessment or treatment of a juvenile, and others entitled under this chapter to receive that information, or upon order of the court. Within each county, the sheriff, the chiefs of police, the district school superintendent, and the department shall enter into an interagency agreement for the purpose of sharing information about juvenile offenders among all parties. The agreement must specify the conditions under which summary criminal history information is to be made available to appropriate school personnel, and the conditions under which school records are to be made available to appropriate department personnel. Such agreement shall require notification to any classroom teacher of assignment to the teacher’s classroom of a juvenile who has been placed in a probation or commitment program for a felony offense. The agencies entering into such agreement must comply with s. 943.0525, and must maintain the confidentiality of information that is otherwise exempt from s. 119.07(1), as provided by law. (2) Notwithstanding any other provisions of this chapter, the name, photograph, address, and crime or arrest report of a child: (a) Taken into custody if the child has been taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony; (b) Found by a court to have committed three or more violations of law which, if committed by an adult, would be misdemeanors; (c) Transferred to the adult system under s. 985.557, indicted under s. 985.56, or waived under s. 985.556; (d) Taken into custody by a law enforcement officer for a violation of law subject to s.985.557(2)(b) or (d); or (e) Transferred to the adult system but sentenced to the juvenile system under s. 985.565 shall not be considered confidential and exempt from s. 119.07(1) solely because of the child’s age. (3) A law enforcement agency may release a copy of the juvenile offense report to the victim of the offense. However, information gained by the victim under this chapter, including the next of kin of a homicide victim, regarding any case handled in juvenile court, must not be revealed to any outside party, except as is reasonably necessary in pursuit of legal remedies. (4)(a) Notwithstanding any other provision of this section, when a child of any age is taken into custody by a law enforcement officer for an offense that would have been a felony if committed by an adult, or a crime of violence, the law enforcement agency must notify the superintendent of schools that the child is alleged to have committed the delinquent act. (b) Notwithstanding paragraph (a) or any other provision of this section, when a child of any age is formally charged by a state attorney with a felony or a delinquent act that would be a felony if committed by an adult, the state attorney shall notify the superintendent of the child’s school that the child has been charged with such felony or delinquent act. The information obtained by the superintendent of schools under this section must be released within 48 hours after receipt to appropriate school personnel, including the principal of the school of the child and the director of transportation. The principal must immediately notify the child’s immediate classroom teachers, the child’s assigned bus driver, and any other school personnel whose duties include direct supervision of the child. Upon notification, the principal is authorized to begin disciplinary actions under s.1006.09(1)-(4). (c) The superintendent must notify the other school personnel whose duties include direct supervision of the child of the disposition of the charges against the child. (d) The department shall disclose to the school superintendent the presence of any child in the care and custody or under the jurisdiction or supervision of the department who has a known history of criminal sexual behavior with other juveniles; is alleged to have committed juvenile sexual abuse as defined in s. 39.01; or has pled guilty or nolo contendere to, or has been found to have committed, a violation of chapter 794, chapter 796, chapter 800, s. 827.071, or s. 847.0133, regardless of adjudication. Any employee of a district school board who knowingly and willfully discloses such information to an unauthorized person commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. (5) Authorized agents of the department may administer oaths and affirmations. (6)(a) Records maintained by the department, including copies of records maintained by the court, which pertain to a child found to have committed a delinquent act which, if committed by an adult, would be a crime specified in s. 435.04 may not be destroyed under this section for 25 years after the youth’s final referral to the department, except in cases of the death of the child. Such records, however, shall be sealed by the court for use only in meeting the screening requirements for personnel in s. 402.3055 and the other sections cited above, or under departmental rule; however, current criminal history information must be obtained from the Department of Law Enforcement in accordance with s. 943.053. The information shall be released to those persons specified in the above cited sections for the purposes of complying with those sections. The court may punish by contempt any person who releases or uses the records for any unauthorized purpose. (b) Sexual offender and predator registration information as required in ss. 775.21, 943.0435,944.606, 944.607, 985.481, and 985.4815 is a public record pursuant to s. 119.07(1) and as otherwise provided by law. (7)(a) Records in the custody of the department regarding children are not open to inspection by the public. Such records may be inspected only upon order of the Secretary of Juvenile Justice or his or her authorized agent by persons who have sufficient reason and upon such conditions for their use and disposition as the secretary or his or her authorized agent deems proper. The information in such records may be disclosed only to other employees of the department who have a need therefor in order to perform their official duties; to other persons as authorized by rule of the department; and, upon request, to the Department of Corrections. The secretary or his or her authorized agent may permit properly qualified persons to inspect and make abstracts from records for statistical purposes under whatever conditions upon their use and disposition the secretary or his or her authorized agent deems proper, provided adequate assurances are given that children’s names and other identifying information will not be disclosed by the applicant. (b) The destruction of records pertaining to children committed to or supervised by the department pursuant to a court order, which records are retained until a child reaches the age of 24 years or until a serious or habitual delinquent child reaches the age of 26 years, shall be subject to chapter 943. (8) Criminal history information made available to governmental agencies by the Department of Law Enforcement or other criminal justice agencies shall not be used for any purpose other than that specified in the provision authorizing the releases. (1) Juvenile proceedings are confidential. All information obtained under this chapter in the discharge of official duty by any judge, any employee of the court, any authorized agent of the department, the Parole Commission, the Department of Corrections, the juvenile justice circuit boards, any law enforcement agent, any officer of the court, and any treatment provider or agency participating in any aspect of a child’s involvement in the juvenile justice system is confidential and may only be released to authorized court personnel and law enforcement, including the department, for the execution of their duties. Confidential information may be released by court order, for good cause, and by the individual who is the subject of the proceeding. (2) All records of juvenile delinquency proceedings must be sealed and kept confidential from the public. (3) Confidential records may be released to a party by court order if they can show a legitimate interest. a. In determining whether to authorize inspection or release of juvenile case files, in whole or in part, the court must balance the interests of the child and other parties to the juvenile court proceedings, the interests of the petitioner, and the interests of the public. If the court grants the petition, the court must find that the need for discovery outweighs the policy considerations favoring confidentiality of juvenile case files. The confidentiality of juvenile case files is intended to protect the privacy rights of the child. b. The court may permit disclosure of juvenile case files only insofar as is necessary, and only if petitioner shows by a preponderance of the evidence that the records requested are necessary and have substantial relevance to the legitimate need of the petitioner. c. If, after in­camera review and review of any objections, the court determines that all or a portion of the juvenile case file may be disclosed, the court must make appropriate orders, specifying the information to be disclosed and the procedure for providing access to it. d. The court may issue protective orders to accompany authorized disclosure, discovery, or access.