All posts by Darren Chaker

Darren Chaker decided to take an approach to life which differed from most. In lieu of seeking out another law firm to work for, Darren focused energy on helping others through volunteering time to help non-profits and working in overseas security tasks. Darren continues to blog about various legal topics, and contributes to www.DarrenChaker.org .

Florida Civil Record Sealing

Although the near decade of Darren Chaker spent researching and drafting motions focused on California and Nevada law, his knowledge about sealing court records law in Florida is broad. In Florida, public policy strongly favors open government, which is embodied in Florida common law, statutory law, and constitutional law. See WESH Television, Inc. v. Freeman, 691 So. 2d 532, 534 (Fla. 5th DCA 1997) (“Florida has a strong policy favoring open government.”). Consistent with that policy, it is well-established that “[t]here is no private litigation in the courts of Florida.” Fla. Freedom Newspapers, Inc. v. Sirmons, 508 So. 2d 462, 463 (Fla. 1st DCA 1987), aff’d sub nom., Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988).

The seminal case establishing the public’s right to inspect judicial records was Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). In that case, Dempsey J. Barron, a state senator, requested that the portion of the court file containing his personal medical records be maintained under seal. See id. at 114, 119. Despite the usual privacy protections afforded to medical records, the Florida Supreme Court denied the request, stating, “[a] trial is a public event. What transpires in the court room is public property . . . .” Id. at 116 (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)). Darren Chaker research supports anything filed with the Court herein in support of summary judgment is a “judicial record” that is available to the public for copying and inspection, subject to a few narrow restrictions. See Fla. R. Jud. Admin. 2.420(b) (defining “[r]ecords of the judicial branch” broadly); Barron, 531 So. 2d at 114 (“We hold that all trials, civil and criminal, are public events and there is a strong presumption of public access to these proceedings and their records, subject to certain narrowly defined exceptions.” (emphasis in original)).

The amended rules established the following procedures for sealing judicial records. First, the proponent of confidentiality must file a “written motion captioned ‘Motion to Make Court Records Confidential.’ ” In re Amendments to Fla. R. Jud. Admin. 2.420, 954 So. 2d at 21 (“The parties may not merely submit an agreed-upon order. The motion must be captioned ‘Motion to Make Court Records Confidential’ . . . .”). Substantively, the Motion must “identify the particular court records the movant seeks to make confidential with as much specificity as possible” and “specify the bases for making such court records confidential.” Fla. R. Jud. Admin. 2.420(d)(1)(A)-(B). Thereafter, the records can only be sealed pursuant to a Court Order that makes certain explicit findings, including the grounds for making the court records confidential, an explanation as to which particular court records will be made confidential, and a statement that the least restrictive means is being used to protect the confidential information. See Fla. R. Jud. Admin. 2.420(d)(3)-(4). In the absence of the required motion and Court order, judicial records cannot be sealed. See Carter, 983 So. 2d at 25, 27 (noting that court records can only be sealed upon a proper motion and resulting order with “express findings regarding the factors” set forth in the rules); see also Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 8-9 (Fla. 1982) (“The trial judge shall make findings of fact and conclusions of law so that the reviewing court will have the benefit of his reasoning in granting or denying closure.”) read this.

California CANRA

As the preceding post discussed criminal data bases, <a href="http://darrenchaker visit the website.us”>Darren Chaker reports about a little known state database. In 1997, CANRA was amended (a) to change the name of “unsubstantiated” reports to “inconclusive” reports, without altering the definition, and (b) to provide for purging “inconclusive or unsubstantiated” reports ten years after entry in the Index, unless DOJ receives another report on the same “suspected child abuser” within that period, in which case DOJ retains the listing for at least ten years from receipt of the more recent report. § § 11165.12(c), 11170(a)(3); see Cal. Stats. 1997, ch. 842, §§ 2, 6.1.

CANRA still does not specify a retention period for reports classified as anything other than “unsubstantiated” or “inconclusive.” Under DOJ policy, all Index listings arising from 11169 Reports marked “substantiated” are set for permanent retention unless the submitting agency notifies DOJ that (a) the report is “unfounded” or should be reclassified as “inconclusive,” or (b) there is no available investigative file that supports the listing.

“Not unfounded” is the only classification decision that CANRA requires an agency to make before submitting a report for entry in the Index. § 11169(a). But DOJ’s reporting forms direct agencies to make other classification decisions: the agency investigator must classify the report “substantiated” or “inconclusive” by marking one of those pre-printed options on the reporting form. Regs. § 903(a). The investigator’s mark determines the listing’s slated retention period.

In any event, CANRA does indicate an intent to protect against the entry and retention of unfounded Index listings. Since 1981, § 11170 has required (a) that DOJ continually update the Index, (b) that unfounded reports not be entered in the Index, and (c) that DOJ not retain listings derived from submitted reports that later prove unfounded. Since 1985, § 11169 has prohibited the creation of any Index listing unless the report has been actively investigated and determined not to be unfounded in conformity with § 11165.12; and § 11169 precludes absolute immunity for investigators who submit reports to the Index.

Last, while CANRA requires the listing of “not unfounded” reports, it equally protects against being listed on unfounded accusations. Thus, an agency’s duty to submit reports “determined not to be unfounded” is balanced by CANRA’s prohibition against the submission of reports that have not been “determined not to be unfounded.” § 11169(a).

California Background Checks

Release of California criminal history information ( rap-sheet ) is regulated per Darren Chaker. This issue often comes up in preemployment background screening in California and states with similar laws. The dissemination of criminal history information and its consideration for employment purposes are chiefly governed by California Penal Code sections 11105 and 13300 and California Labor Code section 432.7. In California, there is a statewide criminal history database maintained by the California Department of Justice and local law enforcement agencies may have their own criminal history databases. Penal Code section 11105 governs the California Department of Justice’s duty to maintain and disseminate statewide criminal history records. Penal Code section 13300 governs criminal history records maintained by local agencies.

In relevant part, the California Department of Justice is required to maintain a state summary of criminal history information that includes arrest information. Cal. Penal Code §§ 11105(a)(1) and (a)(2). The California Attorney General may furnish the statewide summary of criminal history information to “public officers… of the United States” provided that access to such records is “expressly authorized by a statute of the United States” and the information is necessary for the performance of the federal officer’s official duties. Id. § 11105(c)(4). Local agencies may provide their local criminal history information to federal officials under the same circumstances. Id. § 1330(c)(4). However, dissemination of criminal history information to federal officials is limited by California Labor Code section 432.7. Id. §§ 11105(c) and 13300(c).

California Labor Code section 432.7 bars any employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose information concerning an arrest or detention that did not result in a conviction or that resulted in the applicant participating in a pretrial or posttrial diversion program (hereafter referred to as “nonconviction arrest records”). Cal. Labor Code § 432.7(a). The purpose of Labor Code section 432.7 “is to prevent the adverse impact on employment opportunities of information concerning arrests where culpability cannot be proved.” Pitman v. City of Oakland, 197 Cal.App.3d 1037, 1044 (1988). However, nonconviction arrest records can be disclosed to a governmental agency seeking to employ a person as a peace officer or where an individual seeks employment with a criminal justice agency. Cal. Labor Code §§ 432.7(b) and (e). Criminal justice agencies include federal agencies whose principal functions relate to the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders. Cal. Penal Code § 13101.

In a series of cases, the California courts have held that the California Department of Justice is barred from disseminating nonconviction arrest records prohibited from disclosure by Labor Code section 432.7 to any entity, including public employers. Central Valley Chapter of 7th Step Found. Inc. v. Younger, 95 Cal.App.3d 212, 236 (1979) (Central Valley I); Central Valley Chapter of 7th Step Found. Inc. v. Younger, 214 Cal.App.3d 145, 162 (1989) (Central Valley II). These cases hold that dissemination of nonconviction arrest records to entities not statutorily authorized to receive the records would violate the right to informational privacy guaranteed by the California Constitution. Id. As a result of these cases, a California superior court has issued a permanent injunction against the California Department of Justice prohibiting it from disclosing any nonconviction arrest record to employers and others barred from receiving such records under California Labor Code section 432.7. See Central Valley II, 214 Cal.App.3d at 153 (describing order issued in November 1982). Any Department of Justice employee who knowingly provides arrest information in violation of California law is guilty of a misdemeanor. Cal. Penal Code § 11141. Any person who knowingly receives such information in violation of California law is also guilty of a misdemeanor. Id. § 11143.

Accordingly, under California law and the permanent injunction issued in the Central Valley cases, in the employment context the California Department of Justice may only disclose nonconviction arrest records to limited agencies during a preemployment background investigation like the Office of Personnel Management, when it seeks such records for an individual’s employment as a peace officer or for the individual’s employment with a federal criminal justice agency. See Central Valley II, 214 Cal.App.3d at 168. The exact information that can be provided in these two circumstances is set forth in California Penal Code sections 11105(k), for peace officer employment applicants, and 11105(1), criminal justice agency employment applicants.

Seal Texas Ticket

This blog by Darren Chaker notes several state cases decided in support to seal a Texas ticket.  Simply put, whenever a person has been stopped and cited warrants an arrested took place. Atwater v. City of Lago Vista, 533 U.S. 924,121 S. Ct. 2540.” The few months since this case was filed has not changed Supreme Court law.  A traffic ticket is an “arrest” in federal parlance. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed project management collaboration tools.2d 89 (1996); United States v. Childs, 277 F.3d 947 (7th Cir.2002) (en banc). Cf. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

The United States Court of Appeals for the Seventh Circuit considered it in United States v. Morgan, 354 F.3d 621 (7th Cir. 2003). As the Seventh Circuit recognized, a person who receives a traffic citation is “halted and prevented from leaving until the officer release[s] him.” 354 F.3d at 623. It is well established that an arrest takes place when a reasonable person would not feel free to leave, even if that person is never taken to jail. United States v. Drayton, 536 U.S. 194, 201 (2002); Terry v. Ohio, 392 U.S. 1, 19 (1968). Here, being pulled over, and not being free to leave until the officer or deputy issued the citation and arrestee promised to appear or faced with physical custody has all the hallmarks of an arrest. As such, having handcuffs and spending the night in jail is purely semantics since an arrest need not be followed by physical custody in jail. Regardless if the citation is for speeding in Houston or running a red light in Dallas, it is important to have any former tickets sealed to prevent disclosing an arrest took place on job or license applications.

Non-Custodial Arrest Can Be Expunged

As discussed here, <a href="http://www.darren-chaker cloud collaboration tools.net/2012/06/lewd-acts-and-uncharged-offenses-by.html”>Darren Chaker found several people are not aware a simple traffic can be sealed or expunged under Texas law. Most people believe only the most egregious crimes may be destroyed. The term sealed and destroyed are used interchangeably since Texas expunction law requires the court to permanently seal the file and any reference to it, while requiring law enforcement to destroy its records.

Nonetheless, a custodial vs. non-custodial arrest is immaterial to expunction. Vernon’s Ann.Texas C.C.P. Art. 55.01 (a) states in pertinent part “A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged…”   (Emphasis added) Article 55.01 (a) points out if the arrest resulted physical custody or not is immaterial. The fact remains an arrest took place. A Petitioner who was halted and prevented from leaving until the officer released him would have standing to allege an arrest took place. (This process differs from filing a complaint, which unlike an arrest does not require probable cause and does not entail even brief custody. See United States v. Joseph, 50 F.3d 401 (7th Cir.1995).)

If a person is issued a citation in El Paso to Dallas, the ticket can be expunged. A person seeking to seal a traffic ticket could have been taken to the stationhouse, converting a noncustodial arrest to a full custodial arrest, but the fact is an arrest is an arrest. See Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). The fact Petitioner was not taken into custody is immaterial since noncustodial arrests are included in Article 55.01(a) as being eligible for expunction.

If being able to wipe the slate clean is important, it is significant to  review all records and determine whether the expunction law or other record sealing statute is available to the Petitioner.

Tickets n’ Databases

A traffic ticket is not just something that goes away. The ticket, or citation, is entered into local, regional, and federal databases. Darren Chaker recommends to keep in mind a traffic citation is an arrest, and is included in local databases and included in state wide and national databases.

“Criminal history record information” (CHRI) means information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, complaints, and other formal criminal charges and their dispositions. As here, the citation information is entered into a regional data base operated by the Harris County Sheriff, and redistributed to the Department of Public Safety, and then to national datasbases.  Therefore, a criminal record is born.

CHRI is information about a person that is collected by a criminal justice agency at a state and national level and consists of “identifiable descriptions and notations of arrests, detentions, indictments, complaints, and other formal charges” and their dispositions. Tex. Gov’t Code § 411.082(2), 28 C.F.R. §20.3(d). In Texas, CHRI is stored in the computerized criminal history database maintained by the DPS. Tex. Code Crim. PROC. art. 60.02. National CHRI is the compilation of data reported from all states’ criminal history repositories to the FBI Criminal Justice Information Services Division, and is stored in the III System.

The III System is defined as a “cooperative federal-state system for the exchange of criminal history records, and includes the National Identification Index, the National Fingerprint File, and, to the extent of their participation in such system, the criminal history record repositories of the states and the FBI.” 28 C.F.R. §20.3(m). The CHRI information maintained in the III System includes serious or significant adult and juvenile offenses. 28 C.F.R. §20.32. A RAP sheet produced by the DPS consists of CHRI from both the Texas computerized criminal history file and the FBI’s III System. See also, Tex. Gov’t Code Ann. § 411.082 (West)

A Texas Report of Arrests and Prosecutions (RAP sheet) produced by the DPS consists of criminal history record information (CHRI) from the DPS’s computerized criminal history file and the FBI Interstate Identification Index (III) System. Darren Chaker cautions people who want to seal records to also consider the III System is defined as a “cooperative federal-state system for the exchange of criminal history records, and includes the National Identification Index, the National Fingerprint File, and, to the extent of their participation in such system, the criminal history record repositories of the states and the FBI.

Destruction of Criminal Record

Texas expunction law allows a record to be used in other cases. Texas record sealing law extends to “all records and files relating to the arrest” of the petitioner if the criminal case as required. Tex. Code Crim. Proc. Ann. art. 55.01(a). Darren Chaker found in <a href="http://caselaw website link.findlaw.com/tx-court-of-appeals/1446356.html”>Texas Educ. Agency v. T.F.G., 295 S.W.3d 398, 401 (Tex. App.—Beaumont 2009), no pet., the court held only documents and records pertaining to acquittee’s criminal investigation, arrest, and prosecution on charge of indecency with a child were documents “relating to the arrest,” so as to be subject to the statute authorizing expunction of criminal records and, thus, any documents resulting from Texas Education Agency’s internal investigation concerning acquittee’s educator certification were not subject to expunction except for references in such documents based on acquittee’s criminal investigation and subsequent arrest. Simply put, once a record is sealed under Texas law, it cannot be unsealed or evidence of the record be used in any manner.

Texas Record Sealing

Darren Chaker notes that most people are not aware a simple citation (ticket) is construed as an arrest. Atwater v. City of Lago Vista, 533 U.S. 924,121 S. Ct. 2540.  In Texas, as with most states, only a person who was arrested may obtain expunction of his records, because an arrest is a threshold requirement under the expunction statute. Ex parte S.C. (App. 14 Dist. 2009) 305 S.W.3d 258. In T.C.R. v. Bell County District Attorney’s Office, 305 S.W.3d 661, “as a matter of first impression, a person charged with a felony offense is eligible for expunction, subject to other requirements, where the charging instrument has been dismissed or quashed, and the limitations period for the offense has expired.” Likewise, Texas law expands expunction to include any arrest, thus misdemeanors are included.

Once an arrest is established, the next criteria a Petitioner must meet is to demonstrate the charge was dismissed you could look here. Texas expungement, also known as expunction, allows records to be permanently sealed by the court and physically destroyed by the court. It may not be a big issue with most people, however if you seek security clearance, are in a highly scrutinized profession, or simply want to deny being arrested on an employment application then petitioning the court to expunge records is critical.

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