Implements updated statutory requirements for the administrative expunction of Florida criminal history arrest records that are made contrary to law or by mistake.

DEPARTMENT OF LAW ENFORCEMENT
Division of Criminal Justice Information Systems

RULE NO: RULE TITLE
11C-7.008: Administrative Expunction Procedures
PURPOSE AND EFFECT: Implements updated statutory requirements for the administrative expunction of Florida criminal history arrest records that are made contrary to law or by mistake.
SUMMARY: Requests for administrative expunction from the Florida criminal history file of arrests made in error or contrary to law no longer require an affidavit from the head of the arresting agency. If the person was arrested in error based on a warrant, capias, or pick-up order, the request for an administrative expunge may be made either by the head of the arresting agency or by the sheriff of the warranting county or by the state attorney of the judicial circuit where the warrant, capias or pick-up order was issued.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 943.03, 943.0581 FS.
LAW IMPLEMENTED: 943.0581 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: Wednesday, February 4, 2009, 10:00 a.m.
PLACE: Florida Department of Law Enforcement, 2331 Phillips Road, Tallahassee, Florida 32308
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Tanya Goetz, Florida Department of Law Enforcement, Criminal Justice Information Services, 2331 Phillips Road, Tallahassee, Florida 32308. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Jean Itzin, Florida Department of Law Enforcement, Criminal Justice Information Services, 2331 Phillips Road, Tallahassee, Florida 32308, [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

11C-7.008 Administrative Expunction Procedures.

(1) Non-judicial records of arrest made contrary to law or by mistake will be administratively expunged by the Department, upon application by the arresting law enforcement agency, or by the person arrested or, in the case of a minor child, the parent or legal guardian of the minor person arrested. An application submitted by the person arrested, or the parent or legal guardian of the minor person arrested, shall be supported by the endorsement of the head or chief law enforcement officer of the arresting agency or of the state attorney of the judicial circuit in which the arrest occurred.

(2) No change.

(3) An application for administrative expunction must be in writing. If submitted by the arresting law enforcement agency, the application shall be on agency letterhead, and signed by the head or chief law enforcement officer of the arresting agency, chief law enforcement officer or his or her authorized designee. An application submitted by the person arrested or the parent or legal guardian of the minor person arrested, must be in writing and must identify the relationship of the person signing the application to the person arrested.

(4) A supporting endorsement of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, must be in writing, on agency letterhead, and signed by the head or chief law enforcement officer of the arresting agency or his or her authorized designee or by the state attorney of the judicial circuit in which the arrest occurred or his or her authorized designee.

(5) An application for administrative expunction submitted by the arresting law enforcement agency, or the supporting endorsement in the case of an application submitted by the person arrested, or the parent or legal guardian of the minor person arrested, shall identify the arrest to be expunged by providing the following information. Written documents related to administrative expunctions shall make specific reference to identifying information, including:

(a) Name and Aliases;

(b) Sex and Race Alias/Maiden Name(s);

(c) Date of Birth Sex;

(d) Social Security Number (if available, used for identification – not mandatory) Race;

(e) Date and Time of Arrest Birth;

(f) Original Charge(s) Social Security Number (Not required);

(g) FDLE Number and FBI Number (if applicable and known) Date of Arrest;

(h) OBTS Arrest Number and Original Charges;

(i) Reason for Administrative Expunction FDLE Number and FBI Number (If Applicable and Known);

(j) Reason For Administrative Expunction.

(6) If the person was arrested on a warrant, capias, or pick-up order, the request for an administrative expunction, or the supporting endorsement of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, may be made by the sheriff of the county where the warrant, capias, or pick-up order was issued or his or her deignee, or by the state attorney of the judicial circuit where the warrant, capias, or pick-up order was issued or his or her designee. Any application for administrative expunction, whether submitted by the arresting law enforcement agency or by the person arrested or the parent or legal guardian of the minor person arrested, must be supported by an affidavit executed by the chief of the arresting law enforcement agency, sheriff, or department head of the arresting state law enforcement agency in which the affiant verifies that he or she has reviewed the record of the arrest and that the arrest was contrary to law or was a mistake. The affidavit shall include the date and time of the arrest, the name of the arresting officer, the name of the person arrested, and the crime or crimes charged and shall be submitted directly to the Department by the arresting law enforcement agency. An application which does not include this affidavit, in the form prescribed, will be rejected by the Department and a written explanation of the reason for rejection will be provided to the applicant by the Department. A copy of the rejection notice and explanation will also be provided to the arresting agency if that agency has made a submission in support of the application.

(7) When an administrative expunge application meets the statutory requirements, the Department will notify the arresting agency, which is then responsible for expunging its records of the arrest, and for notifying any other agency to which it provided the criminal history record information that is the subject of the administrative expunction.

(8)(7) No application, or endorsement, or affidavit made under this section shall be admissible as evidence in any judicial or administrative proceeding or otherwise be construed in any way as an admission of liability in connection with an arrest.

(9)(8) The procedures by which an individual may secure an administrative correction of the criminal history record pertaining to the individual are set out in Chapter 11C-8, F.A.C. Non-criminal arrest records which are mistakenly or improperly forwarded to the Department for processing and retention as criminal history records will be removed as an administrative correction expunge by the Department.

Specific Authority 943.03, 943.0581 FS. Law Implemented 943.0581 FS. History–New 8-5-92, Amended 3-21-07,_______.

NAME OF PERSON ORIGINATING PROPOSED RULE: Jean Itzin
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor and Cabinet
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 09, 2008
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: October 17, 2008