This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0841z.DOCX
DATE: 5/17/2023
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/HB 841 Pub. Rec./Human Trafficking Victim Expunction
SPONSOR(S): Criminal Justice Subcommittee, Hawkins and others
TIED BILLS: IDEN./SIM. BILLS: SB 1210, SB 1428
FINAL HOUSE FLOOR ACTION: 116 Y’s
0 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
CS/HB 841 passed the House on May 3, 2023, as SB 1210 as amended. The Senate concurred in the House
amendment to the Senate bill and subsequently passed the bill as amended on May 3, 2023.
Human trafficking is modern day slavery which involves transporting, soliciting, recruiting, harboring, providing,
enticing, maintaining, purchasing, patronizing, procuring, or obtaining another person for the purpose of
exploiting that person. A human trafficking victim is authorized to petition a court for the expunction of his or
her criminal history record resulting from an arrest or filing of charges for an offense committed or reported to
have been committed while he or she was a victim of human trafficking, with the exception of certain offenses.
The petition to expunge must be accompanied by a sworn statement attesting that the petitioner is eligible for
an expunction to the best of his or her knowledge and official documentation of the petitioner’s status as a
human trafficking victim, if any exists.
When a record is expunged, it is destroyed and any criminal intelligence and criminal investigative information
that reveals or may reveal the human trafficking victim’s identity whose criminal history record has been
expunged or ordered expunged is confidential and exempt from public record requirements. Additionally, a
criminal history record that is ordered expunged that is retained by the Florida Department of Law Enforcement
is also confidential and exempt from public record requirements; however, current law does not exempt the
information contained in the petition for expunction or accompanying information from public record
requirements.
The bill amends s. 943.0583, F.S., to make confidential and exempt from public record requirements a petition
for human trafficking victim expunction and all related pleadings and documents. The public record exemption
is subject to the Open Government Sunset Review Act and will be repealed on October 2, 2028, unless
reviewed and saved from repeal by the Legislature.
The bill may have an indeterminate negative fiscal impact on agencies holding petitions and related pleadings
and documents for human trafficking victim expunction if additional training is required to comply with the
expanded public record exemption.
The bill was approved by the Governor on May 16, 2023, ch. 2023-84, L.O.F., and will become effective on
July 1, 2023.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF 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 the right to inspect or copy any public
record of the legislative, executive, and judicial branches of government.
1
The Legislature, however,
may provide by general law for exemption from public record requirements provided the exemption
passes by two-thirds vote of each chamber, states with specificity the public necessity justifying the
exemption, and is no broader than necessary to meet its public purpose.
2
The Florida Statutes also address the public policy regarding access to government records. Section
119.07(1), F.S., guarantees every person the right to inspect and copy any state, county, or municipal
record, unless the record is exempt.
3
Furthermore, the Open Government Sunset Review Act
4
provides
that a public record exemption may be created, revised, or maintained only if it serves an identifiable
public purpose and the Legislature finds that the purpose is sufficiently compelling to override the
strong public policy of open government and cannot be accomplished without the exemption.
5
An
identifiable public purpose is served if the exemption meets one of the following purposes:
Allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protects 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; or
Protects trade or business secrets.
6
Pursuant to the Open Government Sunset Review Act, a new public record exemption or substantial
amendment of an existing public record exemption is repealed on October 2
nd
of the fifth year following
enactment, unless the Legislature reenacts the exemption.
7
Furthermore, there is a difference between records the Legislature designates as 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. However, 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.
8
Human Trafficking
1
Art. I, s. 24(a), Fla. Const.
2
Art. I, s. 24(c), Fla. Const.
3
A public record exemption means a provision of general law which provides that a specified record, or portion thereof, is not subject to
the access requirements of s. 119.07(1), F.S., or s. 24, art. I of the Florida Constitution. S. 119.011(8), F.S.
4
S. 119.15, F.S.
5
S. 119.15(6)(b), F.S.
6
Id.
7
S. 119.15(3), F.S.
8
See WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So. 2d 1015 (Fla.
2004); City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So. 2d 687 (Fla. 5th
DCA 1991); See Attorney General Opinion 85-62 (August 1, 1985).
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Human trafficking is modern day slavery which involves the transporting, soliciting, recruiting,
harboring, providing, enticing, maintaining, purchasing, patronizing, procuring, or obtaining of another
person for the purpose of exploiting that person.
9
A person may not knowingly, or in reckless disregard
of the facts, engage in human trafficking, attempt to engage in human trafficking, or benefit financially
by receiving anything of value from participating in a venture that has subjected a person to human
trafficking for commercial sexual activity, labor, or services:
By using coercion;
10
With or of a child or person believed to be a child younger than 18;
11
or
If for commercial sexual activity, with a mentally defective
12
or mentally incapacitated
13
person.
14
Public Record Exemptions
Section 119.071(2)(h), F.S., provides a public record exemption for criminal intelligence
15
and criminal
investigative information
16
that includes:
Any information that reveals the identity of a victim of the crime of child abuse;
17
Any information that may reveal the identity of a person who is a victim of any sexual offense;
18
and
A photograph, videotape, or image of any part of the body of a victim of a crime of certain
sexual offenses.
19
In 2015, the Legislature expanded the exemption to include:
20
Any information that reveals the identity of a person under the age of 18 who is the victim of
human trafficking for labor or services;
21
Any information that may reveal the identity of a person who is the victim of human trafficking
for commercial sexual activity;
22
and
A photograph, videotape, or image of any part of the body of a victim of human trafficking
involving commercial sexual activity.
23
Human Trafficking Victim Expunction
9
S. 787.06(2)(d), F.S.
10
S. 787.06(3)(a)2., (b), (c)2., (d), (e)2., and (f)2., F.S.
11
S. 787.06(3)(a)1., (c)1., (e)1., (f)1., and (g), F.S.
12
Mentally defective means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the
nature of his or her conduct. S. 794.011(1)(c), F.S.
13
Mentally incapacitated means temporarily incapable of appraising or controlling a person's own conduct due to the influence of a
narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that
person without his or her consent. S. 794.011(1)(d), F.S.
14
S. 787.06(3)(g), F.S.
15
The term “criminal intelligence information” means information with respect to an identifiable person or group of persons collected by
a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity. S. 119.011(3)(a), F.S.
16
The term “criminal investigative information” means information with respect to an identifiable person or group of persons compiled by
a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to,
information derived from laboratory tests, reports of investigators or informants, or any type of surveillance. S. 119.011(3)(b), F.S.
17
See ch. 827, F.S.
18
See chs. 794, 796, 800, 827, and 847, F.S.
19
See ss. 119.071(2)(h) and 810.145, F.S., and chs. 794, 796, 800, 827, and 847, F.S.
20
Ch. 2015-146, Laws of Fla.; S. 119.071(2)(h)1., F.S.
21
See s. 787.06(3)(a), F.S.
22
See s. 787.06(3)(b), (d), (f), and (g), F.S.
23
Id.
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In 2013, the Legislature created a process to allow a victim of human trafficking to petition a court for
the expunction of a criminal history record resulting from the arrest or filing of charges for an offense
committed or reported to have been committed while the person was a victim of human trafficking,
regardless of the disposition of the arrest or of any charges.
24
To be eligible for expunction, the offense
must be committed or reported to have been committed while the person was a victim of a human
trafficking scheme or must have been committed or reported to have been committed at the direction of
an operator of the human trafficking scheme, and must not be one of the following offenses:
Arson;
Sexual battery;
Robbery;
Kidnapping;
Aggravated child abuse;
Aggravated abuse of an elderly person or disabled adult;
Aggravated assault with a deadly weapon;
Murder;
Manslaughter;
Aggravated manslaughter of an elderly person or disabled adult;
Aggravated manslaughter of a child;
Unlawful throwing, placing, or discharging of a destructive device or bomb;
Armed burglary;
Aggravated battery; or
Aggravated stalking.
25
A court located within the judicial circuit where the crime the human trafficking victim seeks to expunge
took place is the court designated to hear the victim’s petition.
26
A petition must be initiated by the
petitioner with due diligence after he or she is no longer a victim of human trafficking or has sought
human trafficking victim services.
27
The petition must be accompanied by:
A sworn statement attesting that the petitioner is eligible for an expunction, to the best of his or
her knowledge;
28
and
Official documentation of the petitioner’s status as a human trafficking victim, if any exists.
29
A person who has his or her criminal history record expunged may lawfully deny or fail to acknowledge
the arrests covered by the expunged record, except if the person is a candidate for employment with a
criminal justice agency or is a defendant in a criminal prosecution.
30
When a criminal history record is ordered to be expunged, the record must be physically destroyed by
any criminal justice agency possessing such record, except that any criminal history record in the
custody of the Florida Department of Law Enforcement (FDLE) must be retained.
31
A criminal history
record ordered expunged for a victim of human trafficking that is maintained by FDLE is confidential
and exempt under s. 119.07(1), F.S., and Art. I, s. 24(a), Fla. Const. The criminal history record,
however, is still available:
To criminal justice agencies for their respective criminal justice purposes.
To any governmental agency that is authorized by state or federal law to determine eligibility to
purchase or possess a firearm or to carry a concealed firearm for use in the course of such
agency’s official duties.
24
Ch. 2013-98, Laws of Fla.; As such, a victim is eligible to petition the court for expunction even if the charges resulted in a conviction.
25
S. 943.0583(3), F.S.
26
S. 943.0583(2), F.S.
27
S. 943.0583(4), F.S.
28
Any person who knowingly provides false information in such a sworn statement commits a felony of the third degree. A third-degree
felony is punishable by a term of imprisonment not exceeding five years and a $5,000 fine. Ss. 943.0583(6), 775.082, 775.083, or
775.084, F.S.
29
S. 943.0583(6), F.S.
30
S. 943.0583(8)(b), F.S.
31
S. 943.0583(8)(a), F.S.
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Upon order of a court of competent jurisdiction.
32
Criminal intelligence and criminal investigative information that reveals or may reveal the identity of a
victim of human trafficking whose criminal history record has been expunged or ordered expunged is
also confidential and exempt
from public record requirements.
33
While criminal intelligence and criminal investigative information is confidential and exempt from public
record requirements, a law enforcement agency may share such information:
In the furtherance of its official duties and responsibilities;
With another governmental agency in the furtherance of its official duties and responsibilities; or
For print, publication, or broadcast, if the law enforcement agency determines that releasing the
information will assist in locating or identifying a person the agency believes is missing or
endangered; however, the information provided should be limited to information needed to
identify or locate the victim.
34
Current law does not provide a public record exemption for a human trafficking victim’s petition or any
accompanying pleadings or documents for expunction of his or her criminal history record resulting
from an offense committed or reported to have been committed while he or she was a victim of human
trafficking.
Effect of the Bill
The bill amends s. 943.0583, F.S., to make confidential and exempt from public record requirements a
petition for human trafficking victim expunction and all related pleadings and documents. The public
record exemption is subject to the Open Government Sunset Review Act and will be repealed on
October 2, 2028, unless reviewed and saved from repeal by the Legislature.
The bill includes the constitutionally required public necessity statement.
35
The public necessity
statement provides, in part, that the Legislature finds it is a public necessity that a petition for human
trafficking victim expunction and all related pleadings and documents be made confidential and exempt
from public record requirements because victims of human trafficking face barriers to employment and
other opportunities and the potential for public knowledge that a human trafficking victim is seeking
expungement and the information accompanying such petition may expose a human trafficking victim
to possible discrimination. As such, the Legislature finds it is necessary that such petitions and related
documents be made confidential to allow human trafficking victims the opportunity to rebuild their lives
and reenter society without facing potential discrimination.
The effective date of this bill is July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
32
S. 943.0583(10)(a), F.S.
33
S. 943.0583(11), F.S.
34
Ss. 119.071(2)(h)2. and 943.0583(11)(b), F.S.
35
Art. I, s. 24(c), Fla. Const., requires each public record exemption to “state with specificity the public necessity justifying the
exemption.”
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See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have an indeterminate negative fiscal impact on agencies holding petitions, pleadings, and
documents related to human trafficking victim expunction, as staff responsible for complying with public
record requests may require training related to the expansion of the public record exemption. However,
any additional costs will likely be absorbed within existing resources.