The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: CS/SB 166
INTRODUCER: Criminal Justice Committee and Senator Perry and others
SUBJECT: Public Records/Nonjudicial Record of the Arrest of a Minor
DATE: March 30, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Stokes Jones CJ Fav/CS
2. Candelaria McVaney GO Favorable
3. Forbes Sadberry AP Favorable
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/SB 166 is the public records exemption linked to SB 274. This bill provides that a
nonjudicial record of the arrest of a minor who has successfully completed a diversion program
and is eligible for expunction is made confidential and exempt from public disclosure, except
that the record must be made available only to criminal justice agencies for specified purposes.
SB 274 amends section 943.0582, Florida Statutes, to permit a juvenile who completed a
diversion program for any offense, including a felony offense, to apply to have the nonjudicial
arrest record expunged. Additionally, SB 274 amends section 985.126, Florida Statutes, to
permit a juvenile who completes a diversion program for any offense, including a felony or
subsequent offense, to lawfully deny or fail to acknowledge his or her participation in the
program and the expunction of the nonjudicial arrest record. This expands the current law, which
only permits a juvenile who completes diversion for a first-time misdemeanor offense to lawfully
deny or fail to acknowledge his or her participation in the program and the expunction.
This bill is subject to the Open Government Sunset Review Act and stands repealed on
October 2, 2026, unless reviewed and saved from the repeal through reenactment by the
Legislature.
Because this bill creates a public records exemption, it will require a two-thirds vote of each
house in order to pass.
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This bill takes effect on the same date as SB 274 or similar legislation takes effect. SB 274 is
effective on July 1, 2021.
II. Present Situation:
Access to Public Records - Generally
The Florida Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.1 The right to inspect or copy applies
to the official business of any public body, officer, or employee of the state, including all three
branches of state government, local governmental entities, and any person acting on behalf of the
government.2
Additional requirements and exemptions related to public records are found in various statutes
and rules, depending on the branch of government involved. For instance, s. 11.0431, F.S.,
provides public access requirements for legislative records. Relevant exemptions are codified in
s. 11.0431(2) and (3), F.S., and the statutory provisions are adopted in the rules of each house of
the legislature.3 Florida Rule of Judicial Administration 2.420 governs public access to judicial
branch records.4 Lastly, ch. 119, F.S., provides requirements for public records held by executive
agencies.
Executive Agency Records – The Public Records Act
Chapter 119, F.S., known as the Public Records Act, provides that all state, county, and
municipal records are open for personal inspection and copying by any person, and that
providing access to public records is a duty of each agency.5
A public record includes virtually any document or recording, regardless of its physical form or
how it may be transmitted.6 The Florida Supreme Court has interpreted the statutory definition of
“public record” to include “material prepared in connection with official agency business which
is intended to perpetuate, communicate, or formalize knowledge of some type.”7
Florida law specifies conditions under which public access to public records must be provided.
The Public Records Act guarantees every person’s right to inspect and copy any public record at
1
FLA. CONST. art. I, s. 24(a).
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2020-2022) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 1, (2020-2022).
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4th DCA 2018).
5
Section 119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal
officer, department, division, board, bureau, commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf
of any public agency.”
6
Section 119.011(12), F.S., defines “public record” to mean “all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means
of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by
any agency.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
BILL: CS/SB 166 Page 3
any reasonable time, under reasonable conditions, and under supervision by the custodian of the
public record.8 A violation of the Public Records Act may result in civil or criminal liability.9
The Legislature may exempt public records from public access requirements by passing a
general law by a two-thirds vote of both the House and the Senate.10 The exemption must state
with specificity the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.11
General exemptions from the public records requirements are contained in the Public Records
Act.12 Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.13
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” Custodians of records designated as “exempt” are not prohibited
from disclosing the record; rather, the exemption means that the custodian cannot be compelled
to disclose the record.14 Custodians of records designated as “confidential and exempt” may not
disclose the record except under circumstances specifically defined by the Legislature.15
Open Government Sunset Review Act
The Open Government Sunset Review Act16 (the Act) prescribes a legislative review process for
newly created or substantially amended17 public records or open meetings exemptions, with
specified exceptions.18 It requires the automatic repeal of such exemption on October 2nd of the
fifth year after creation or substantial amendment, unless the Legislature reenacts the
exemption.19
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.20
8
Section 119.07(1)(a), F.S.
9
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
10
FLA. CONST. art. I, s. 24(c).
11
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public
meetings exemption was unconstitutional because the statement of public necessity did not define important terms and did
not justify the breadth of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189
(Fla. 1st DCA 2004) (holding that a statutory provision written to bring another party within an existing public records
exemption is unconstitutional without a public necessity statement).
12
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of
examinations administered by a governmental agency for the purpose of licensure).
13
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the
Department of Revenue).
14
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
15
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5th DCA 2004).
16
Section 119.15, F.S.
17
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
18
Section 119.15(2)(a) and (b), F.S., provides that exemptions that are required by federal law or are applicable solely to the
Legislature or the State Court System are not subject to the Open Government Sunset Review Act.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S.
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An exemption serves an identifiable purpose if it meets one of the following purposes and the
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
 It allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;21
 It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;22 or
 It protects information of a confidential nature concerning entities, such as trade or business
secrets.23
The Act also requires specified questions to be considered during the review process.24 In
examining an exemption, the Act directs the Legislature to carefully question the purpose and
necessity of reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.25 If the exemption is continued without substantive changes or if
the exemption is continued and narrowed, then a public necessity statement and a two-thirds vote
for passage are not required. If the Legislature allows an exemption to sunset, the previously
exempt records will remain exempt unless provided for by law.26
Juvenile Diversion Program Expunction
The exceptions to accessibility of a criminal history record do not apply if the record has been
sealed27 or expunged.28 The expunction of a criminal history record is the court-ordered physical
destruction or obliteration of a record or portion of a record by any criminal justice agency
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
Section 119.15(6)(a), F.S. The specified questions are:
 What specific records or meetings are affected by the exemption?
 Whom does the exemption uniquely affect, as opposed to the general public?
 What is the identifiable public purpose or goal of the exemption?
 Can the information contained in the records or discussed in the meeting be readily obtained by alternative means?
If so, how?
 Is the record or meeting protected by another exemption?
 Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
Section 943.045(19), F.S., defines “sealing of a criminal history record” to mean 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.
28
Section 943.053(3)(b), F.S.
BILL: CS/SB 166 Page 5
having custody of the record.29 The following are authorized expungement processes for the
criminal history record of a juvenile:
 Juvenile diversion;30
 Automatic juvenile;31 and
 Early juvenile.32
Diversion refers to a program that is designed to keep a juvenile from entering the juvenile
justice system through the legal process.33
The decision to refer a juvenile to a diversion program is at the discretion of either the law
enforcement officer that confronted the juvenile at the time of the incident or the state attorney
that has been referred the case. While participation in a diversion program may be restricted to
misdemeanor offenses, there are some programs that enable a juvenile who has committed a
felony to participate. In FY 2019-20, there were 2,770 juveniles who were referred to diversion
programs for felony offenses.34
After completing an eligible diversion program, a juvenile seeking to have his or her nonjudicial
arrest record expunged must:
 Submit an application for diversion expunction to the FDLE.
 Submit, with the application, an official written statement from the state attorney for the
county in which the arrest occurred certifying that:
o He or she has completed the diversion program;
o The arrest was for a misdemeanor; and
o He or she has not otherwise been charged by the state attorney with or have been found to
have committed, any criminal offense or comparable ordinance violation.
 Have not, before the application for expunction, been charged by the state attorney with, or
found to have committed, any criminal offense or comparable ordinance violation.35
If the juvenile meets such criteria and submits the appropriate documentation, the FDLE must
expunge the nonjudicial arrest record of the juvenile.36
A criminal history record that is expunged under this section is only available to criminal justice
agencies37 for the purpose of determining eligibility for diversion programs, a criminal
29
Criminal history records in the custody of the FDLE 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. Section 943.045(16), F.S.
30
Section 943.0582, F.S.
31
Section 943.0515, F.S.
32
Section 943.0515(1)(b)2., F.S.
33
Florida Department of Juvenile Justice (DJJ), Glossary, available at http://www.djj.state.fl.us/youth-families/glossary (last
accessed Feb. 5, 2021).
34
DJJ, Delinquency Profile 2020, Statewide Diversion – Felony Youth, available at
http://www.djj.state.fl.us/research/reports/reports-and-data/interactive-data-reports/delinquency-profile/delinquency-profile-
dashboard (last accessed Feb. 5, 2021, 2021).
35
Section 943.0582(3), F.S.
36
Id.
37
“Criminal justice agency” means: a court; the FDLE; the DJJ; the protective investigations component of the Department
of Children and Families, which investigates the crimes of abuse and neglect; and any other governmental agency or subunit
BILL: CS/SB 166 Page 6
investigation, or making a prosecutorial decision. Records that are eligible for expunction under
this section must be sealed.38 A juvenile who successfully completes a diversion program for a
first-time misdemeanor offense may lawfully deny or fail to acknowledge his or her participation
in the program and the expunction of the nonjudicial arrest record, unless the inquiry is made by
a criminal justice agency for one of the purposes stated above.39
A juvenile who receives an expunction under this section is not prevented from petitioning for
the expunction or sealing of a later criminal history record for human trafficking victim
expunction,40 court ordered expunction,41 or court ordered sealing,42 if the juvenile is otherwise
eligible for relief under those sections.43
III. Effect of Proposed Changes:
This bill is the public records exemption linked to SB 274. This bill provides the nonjudicial
records of arrest of minors who have successfully completed a diversion pr