Fla. Admin. Code R. 11C-8.001

Current through Reg. 50, No. 235-239, December 10, 2024

Section 11C-8.001 - Review Procedures

(1) Any individual wishing to review his criminal history record must submit a request in writing or complete a Application for Personal Review of Florida Criminal History Record FDLE form (CHRM-006 rev. May 2022). The Application for Personal Review of Florida Criminal History Record form may be obtained from:

Florida Department of Law Enforcement (FDLE)

Criminal History Record Maintenance Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Email: CHRM@fdle.state.fl.us

Telephone Number: (850)410-7898

Website: http://www.fdle.state.fl.us/Criminal-History-Records/Personal-Review.aspx

(2) The individual must submit a legible set of fingerprints recorded on an FBI Applicant Fingerprint Card (FD-258, rev. 03/10) or FDLE fingerprint sheet. Fingerprints may not be submitted to FDLE by electronic means. Fingerprints must be taken by a law enforcement agency or by a vendor engaged in the business of providing electronic fingerprint submissions which has an agreement in place with FDLE pursuant to Section 943.053(13), F.S. The fingerprint card must contain all required identifying data. The subject must pay any fees required by the law enforcement agency or vendor for providing this service.

(3) The request and completed fingerprint card should be mailed by the local law enforcement agency or the individual to FDLE. FDLE shall not require payment of any fees, except those provided for by federal regulations, for processing the fingerprint card or providing the resulting record.

(4) The fingerprint card will be processed by FDLE and returned to the submitting party with a notation affixed indicating the processing result along with a copy of any criminal history record identified with the individual.

(5) If after reviewing the record, the individual believes that the record is incorrect or incomplete, it is the individual's responsibility to contact the agency submitting that part of the record in question. It then will be the responsibility of that agency to determine the merit of the assertion, to make any and all corrections or deletions that may be required, and to notify FDLE of any corrections or deletions.

(6) If, after an individual reviews their own criminal history record as authorized in Rule 11C-8.001, F.A.C., the agency and the individual are unable to resolve their differences as to what that portion of the person's record ought to contain or if, more particularly, the agency responsible for the portion of the record in issue refuses to correct its own records or to advise FDLE to correct or supplement the state records in accordance with the individual's wishes, then the administrative review procedures set out in subsections (7) and (8) below, as appropriate, shall be followed.

(7) If the agency responsible for the portion of the record in issue is subject to the Florida Administrative Procedures Act Chapter 120, F.S., the individual may initiate and the agency shall submit itself to administrative adjudication and judicial review of the issue in accordance with the Act, and Section 943.056(2), F.S.

(8) If the agency responsible for the portion of the record in issue is not subject to the Florida Administrative Procedures Act, the individual shall petition the agency in writing to convene a special hearing panel for the purpose of conducting an informal hearing. Such panel shall consist of one panelist nominated by the individual, one panelist nominated by the agency and a presiding panelist mutually agreeable to the other two panelists. If within ten days after the petition is filed no third panelist has been agreed upon or has agreed to serve, a third member of the panel will be appointed by the Executive Director, FDLE. Thereafter:

(a) Within twenty days after the petition is filed, the agency shall make written answer to the allegations in the petition, attaching thereto copies of such official records as it deems necessary to support its refusal or to controvert the petitioner's allegations.

(b) Within thirty days after the petition is filed, the special hearing panel shall convene at a place provided by the agency and at such time as is not inconvenient to the members of the panel, the agency and the individual.

(c) The special hearing panel shall consider the petition, answer, other written documents, official records, oral arguments, and such other information or testimony as either the agency or the individual deems pertinent, material or relevant. The special hearing panel may request and the agency and individual shall provide such additional non-privileged affidavits, statements, answers to interrogatories and copies of documents and records as are necessary to the resolution of the issues.

(d) The individual shall have the burden of proving by substantial competent evidence that the criminal history record information contained in the agency's records or submitted by the agency to FDLE is incorrect or incomplete. However, upon failure of the agency to answer the petition, to answer the individual's interrogatories or reasonable requests for other non-privileged written materials or copies of records, or to otherwise proceed in good faith hereunder, the burden shall shift to the agency.

(e) The special hearing panel, after consideration of all evidence and materials submitted to it and upon the agreement of at least two panelists, shall make tentative written findings of fact and conclusions of law, shall make a tentative but specific finding as to how the individual's record ought to be corrected or supplemented, if at all, and shall certify its findings to the individual and the agency. Default and summary findings are authorized in the event either party unreasonably refuses to proceed in good faith hereunder.

(f) Within ten days of receipt of the tentative findings, the individual or agency shall serve their written exceptions upon the other party and each member of the panel. Thereafter, the panel shall reconvene for the purpose of considering only the prior record, the written exceptions, timely written responses thereto, and such additional evidence as any member of the panel may demand of either the agency or the individual. The tentative findings described in paragraph 11C-8.001(8)(e), F.A.C., may be modified as a majority of the members of the panel may deem appropriate, and shall become the final administrative findings of fact and law. The special panel shall be deemed to have concluded its business when its final findings are certified to the agency, the individual, and FDLE. The record of proceedings hereunder shall be retained by the presiding panelist but may be copied by either party as necessary for appropriate review.

(g) A party who has been adversely affected by the findings of the special hearing panel may, within ten days of receipt of the final administrative findings of fact and law, petition the Executive Director of FDLE for review of such findings. Review by the Executive Director shall be confined to the record transmitted. In the event no such petition is filed by either party, the agency and FDLE shall conform their respective criminal history records in accordance with the final findings of the panel.

(h) The Executive Director, upon review of the record shall make known the findings to the individual, the agency, and the presiding panelist in writing within thirty days after the filing of the petition for review. In the event the Executive Director is in agreement with the final findings of the special hearing panel, the Executive Director's determination shall so state and may adopt said findings; however, should the Executive Director reach a contrary result, he shall state with specificity the reason therefor.

(i) Unless within fifteen days after rendition of the Executive Director's final findings, either the agency or the individual notifies FDLE of its filing of suit to seek judicial review, the agency and FDLE shall forthwith conform their respective criminal history records in accordance with the Executive Director's findings. In the event timely notice is received that judicial review has been initiated, the records in issue shall remain unchanged pending the outcome of the judicial review.

(9) Proceedings under subsection 11C-8.001(8), F.A.C., shall be as informal as fairness and principles of due process will allow. However, the special hearing panel may disregard or discount evidence which is without credibility, materiality, pertinency, or relevancy. As the interests of justice and fairness may require, it may counsel and assist in the presentation of a more effective case by either party. The panel shall synopsize its own rulings and oral testimony before it and reduce it to writing.

Fla. Admin. Code Ann. R. 11C-8.001

Rulemaking Authority 943.03(4), 943.05(2)(d), 943.056 FS. Law Implemented 943.056 FS.

New 6-24-76, Amended 11-12-81, Formerly 11C-8.01, Amended 7-7-99, 6-9-08, Amended by Florida Register Volume 49, Number 158, August 15, 2023 effective 8/30/2023, Amended by Florida Register Volume 50, Number 129, July 2, 2024 effective 7/18/2024.

New 6-24-76, Amended 11-12-81, Formerly 11C-8.01, Amended 7-7-99, 6-9-08, 8-30-23.