HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 95 Pub. Rec./Nonjudicial Arrest Record of a Minor
SPONSOR(S): Smith, D.
TIED BILLS: HB 93 IDEN./SIM. BILLS: CS/SB 166
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 17 Y, 0 N Frost Hall
2) Government Operations Subcommittee 16 Y, 0 N Villa Smith
3) Judiciary Committee 17 Y, 0 N Frost Kramer
SUMMARY ANALYSIS
The Department of Law Enforcement (FDLE) must expunge a nonjudicial arrest record of a juvenile who has
successfully completed a diversion program for a misdemeanor offense. Moreover, 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 a diversion program and the expunction of a nonjudicial arrest record, unless the
inquiry is made by a criminal justice agency for specified purposes.
HB 93 (2021), to which this bill is linked, authorizes FDLE to expunge a juvenile’s nonjudicial arrest record
following the successful completion of a diversion program for any offense, rather than only a misdemeanor. A
juvenile who successfully completes a diversion program for any offense, rather than only a first-time
misdemeanor, may lawfully deny or fail to acknowledge his or her participation in a diversion program and the
expunction of a nonjudicial arrest record, except when the inquiry is made by a criminal justice agency for
specified purposes.
This bill, which is linked to the passage of HB 93 (2021), creates a public records exemption for the nonjudicial
arrest records of a minor who has successfully completed a diversion program for any offense. Under the bill,
such records are confidential and exempt from public disclosure, except that the record must be made
available to criminal justice agencies only for the purpose of:
Determining eligibility for diversion programs;
A criminal investigation; or
Making a prosecutorial decision.
The bill provides for retroactive application of the public record exemption. It also provides for repeal of the
public record exemption on October 2, 2026, unless reviewed and saved from repeal through reenactment by
the Legislature.
The bill may have a fiscal impact on agencies responsible for complying with public records requests and
redacting confidential and exempt information prior to releasing a record.
The bill will become effective on the same date that HB 93 or similar legislation takes effect, if such legislation
is adopted in the same legislative session or an extension thereof and becomes a law.
Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public record or public meeting
exemption. The bill creates a public record exemption; thus, it requires a two-thirds vote for final
passage.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0095e.JDC
DATE: 3/24/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Public Records
Article I, section 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. The Legislature, however, may
provide by general law for the exemption of records from the requirements of article I, section 24(a) of
the Florida Constitution.1 The general law must state with specificity the public necessity justifying the
exemption2 and must be no broader than necessary to accomplish its purpose.3
Public policy regarding access to government records is addressed further in s. 119.07(1)(a), F.S.,
which guarantees every person a right to inspect and copy any state, county, or municipal record,
unless the record is exempt. Furthermore, the Open Government Sunset Review Act 4 provides that a
public record or public meeting exemption may be created or maintained only if it serves an identifiable
public purpose. In addition, it may be no broader than necessary to meet one of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.
Protect trade or business secrets.5
The Open Government Sunset Review Act requires the automatic repeal of a newly created public
record exemption on October 2nd of the fifth year after creation or substantial amendment, unless the
Legislature reenacts the exemption.6
Juvenile Diversion Expunction
Diversion Programs
Diversion is a program designed to divert a juvenile from entering the juvenile justice system by placing
him or her on a less restrictive track that affords more opportunities for rehabilitation and restoration.7
The goal of diversion is to maximize the opportunity for success and minimize the likelihood of
recidivism.8 The decision to refer a juvenile to a diversion program is at the discretion of either the law
enforcement officer who interacts with the juvenile at the time of the offense or the state attorney who is
referred the case. Examples of such programs are Community Arbitration, Juvenile Alternative Services
Program, Teen Court, Intensive Delinquency Diversion Services, Civil Citation, Boy and Girl Scouts,
Boys and Girls Clubs, mentoring programs, and alternative schools.9
1 Art. I, s. 24(c), FLA. CONST.
2 This portion of a public record exemption is commonly referred to as a “public necessity statement.”
3 Art. I. s. 24(c), FLA. CONST.
4 S. 119.15, F.S.
5
S. 119.15(6)(b), F.S.
6 S. 119.15(3), F.S.
7 Florida Department of Juvenile Justice, Glossary, http://www.djj.state.fl.us/youth-families/glossary (last visited Mar. 24, 2021).
8 Center for Health & Justice at TASC, A National Survey of Criminal Justice Diversion Programs and Initiatives, pg. 6,
(December 2013),
http://www2.centerforhealthandjustice.org/sites/www2.centerforhealthandjustice.org/files/publications/CHJ%20Diversion%20Report_we
b.pdf (last visited Mar. 24, 2021).
9 Florida Department of Juvenile Justice, Probation & Community Intervention, http://www.djj.state.fl.us/services/probation (last visited
Mar. 24, 2021).
STORAGE NAME: h0095e.JDC PAGE: 2
DATE: 3/24/2021
A juvenile may have the opportunity to participate in either a prearrest or postarrest diversion program.
A prearrest diversion program is an intervention program that holds a juvenile accountable for their
behavior, while diverting them from any court proceeding or formal arrest record.10 A postarrest
diversion program is a similar intervention program, but diverts the juvenile from further court
proceedings after an arrest.11 While prearrest diversion diverts a juvenile before an arrest record is ever
created, under postarrest diversion, an arrest record is created and maintained pending the juvenile's
participation in and completion of the diversion program. Upon successful completion of a postarrest
diversion program, the juvenile's charges are dismissed.
Expunction
Generally, expunction is the court-ordered physical destruction or obliteration of a criminal history
record or portion of a record by any criminal justice agency having custody of the record.12 A juvenile
who completes one of the following diversion programs may petition for juvenile diversion expunction:13
Civil citation or a similar prearrest diversion program;14
Prearrest or postarrest diversion program;15
Neighborhood restorative justice;16
Community arbitration;17 or
A program to which a state attorney refers the juvenile.18
FDLE is required to expunge a juvenile’s nonjudicial arrest record after successfully completing a
diversion program, if the juvenile:
Submits an application for prearrest or postarrest diversion expunction;
Participated in a diversion program based on the commission of a misdemeanor;
Has not committed any other criminal offense or comparable ordinance violation;
Participated in a diversion program that expressly allows for such expunction; and
Submits certification from the state attorney that the juvenile meets the expunction
qualifications.19
Juvenile diversion expunction has the same effect as court-ordered expunction of criminal history
records under s. 943.0585, F.S., except that:
FDLE may make an expunged juvenile diversion criminal record available to:
o Criminal justice agencies for the purpose of determining eligibility for diversion programs;
o When the record is sought as part of a criminal investigation; or
o When making a prosecutorial decision;20 and
10 Mark A. Greenwald, Overview of Florida’s Pre-Arrest and Post-Arrest Juvenile Diversion Programs and Applicable Laws, Florida
Department of Juvenile Justice (June 7, 2018), http://www.fdle.state.fl.us/MSDHS/Meetings/June-Meeting-
Documents/Presentations/June-7-930AM-DJJ-Greenwald-Diversion-Programs.aspx (last visited Mar. 24, 2021).
11 Id.
12 Criminal history records in the custody of 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. S. 943.045(16), F.S.
13 S. 943.0582, F.S.
14 The civil citation program offers early intervention, community counseling referrals, and other appropriate community resources to
divert juvenile misdemeanor offenders from the juvenile justice system. The program works with other community partners in an effort
to reduce juvenile crime and to provide services for at-risk youth. Nineteenth Judicial Circuit, Civil Citation (2019),
http://www.circuit19.org/programs-services/court-programs/juvenile/civil-citation (last visited Mar. 24, 2021). S. 985.12, F.S.
15 S. 985.125, F.S.
16 In neighborhood restorative justice programs, victims, the offender, and all others impacted by the crime discuss the impact,
obligations, and actions needed to repair harm. Florida Restorative Justice Association, Retributive Justice vs. Restorative Justice
(2014), https://www.floridarestorativejustice.com/about-rj.html (last visited Mar. 24, 2021). S. 985.155, F.S.
17 Community arbitration is a program where a juvenile who has committed a relatively minor offense can have his or her case resolved
in an informal manner, and appear before a community arbitrator instead of a judge in juvenile court. Twentieth Judicial Circuit, Juvenile
Arbitration Program (2014), https://www.ca.cjis20.org/home/main/juvarb.asp (last visited Mar. 24, 2021). S. 985.16, F.S.
18 S. 985.15, F.S. See s. 943.0582(2)(a), F.S.
19 S. 943.0582(3), F.S.
20 S. 943.0582(2)(b)1., F.S.
STORAGE NAME: h0095e.JDC PAGE: 3
DATE: 3/24/2021
Local criminal justice agencies in the county in which an arrest occurred must seal instead of
destroy any relevant records.21
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 a program and the expunction of a
nonjudicial arrest record, unless the inquiry is made by a criminal justice agency22 for the purpose of:
Determining eligibility for diversion programs;
A criminal investigation; or
Making a prosecutorial decision.23
HB 93 (2021)
HB 93 (2021), to which this bill is linked, requires FDLE to expunge a juvenile’s nonjudicial arrest
record following the successful completion of a diversion program for any offense, rather than only a
misdemeanor. The bill authorizes a juvenile who has successfully completed a diversion program for
any offense, rather than only a first-time misdemeanor, to lawfully deny or fail to acknowledge his or her
participation in a program and the expunction of a nonjudicial arrest record, except when the inquiry is
made by a criminal justice agency for specified purposes.24
Effect of Proposed Changes
This bill, which is linked to the passage of HB 93 (2021), creates a public records exemption for juvenile
offender records. Specifically, the bill provides that the nonjudicial arrest records of a minor who has
successfully completed a diversion program are confidential and exempt25 from public disclosure,
except that the record must be made available to criminal justice agencies for specified purposes.
This bill provides a public necessity statement as required by article I, section 24(c) of the Florida
Constitution. The public necessity statement provides that the purpose of diversion programs is to
redirect youth from the justice system and this purpose will be undermined if the nonjudicial arrest
record is not confidential and exempt.
The bill provides for retroactive application of the public record exemption. It also provides for repeal of
the public record exemption on October 2, 2026, unless reviewed and saved from repeal through
reenactment by the Legislature.
The bill will become effective on the same date that HB 93 (2021) or similar legislation takes effect, if
such legislation is adopted in the same legislative session or an extension thereof and becomes a law.
B. SECTION DIRECTORY:
Section 1: Amends s. 943.0582, F.S., relating to diversion program expunction by creating a public
record exemption to include the nonjudicial arrest records of a minor who has successfully
completed a diversion program.
Section 2: Provides a public necessity statement as required by the Florida Constitution.
21 S. 943.0582(2)(b)2., F.S.
22 “Criminal justice agency” means a court; FDLE; DJJ; the protective investigations component of the Department of Children and
Families, investigating abuse or neglect; and 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. S. 943.045(11), F.S.
23 Ss. 985.126(5) and 943.0582(2)(b)1.a.-c., F.S.
24 Supra, note 18.
25 There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstances.
See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004); City of
Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA 1991). If
the Legislature designates a record as confidential and exempt from public disclosure, such record may not be released by the
custodian of public records, to anyone other than the persons or entities specifically designated in statute. See Op. Att’y Gen. Fla.
(1985).
STORAGE NAME: h0095e.JDC PAGE: 4
DATE: 3/24/2021
Section 3: Provides an effective date of the same date that HB 93 (2021) or similar legislation takes
effect, if such legislation is adopted in the same legislative session or an extension thereof
and becomes a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill may have a fiscal impact on agencies responsible for complying with public records
requests and redacting confidential and exempt information prior to releasing a record.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
The bill may have a fiscal impact on agencies responsible for complying with public records
requests and redacting confidential and exempt information prior to releasing a record.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to take action requiring
the expenditure of funds, reduce the authority that counties or municipalities have to raise revenue