HB 162: Georgia Bureau of Investigation; restriction and seal of First Offender Act sentences until such status is revoked; provide

House Bill 162 (AS PASSED HOUSE AND SENATE)

By: Representatives Hagan of the 156th, Werkheiser of the 157th, Leverett of the 123rd, Reeves of the 99th, Dempsey of the 13th, and others

A BILL TO BE ENTITLED

AN ACT

To amend Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating to the Georgia Bureau of Investigation, so as to provide for the restriction and seal of First Offender Act sentences until such status is revoked; to amend Article 3 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated, relating to first offenders relative to probation, so as to provide for the restriction and seal of first offender sentences at the time of sentencing; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating to the Georgia Bureau of Investigation, is amended by revising subparagraph (a)(1)(B) of Code Section 35-3-34, relating to disclosure and dissemination of criminal records to private persons and businesses, resulting responsibility and liability of issuing center, and provision of certain information to the FBI in conjunction with the National Instant Criminal Background Check System, as follows:

"(B)(i) The center shall not provide records of arrests, charges, or sentences when an individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 and has been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order or Code Section 15-1-20, including records relating to such defendant's bench warrants, failure to appear, and probation for such offense, except as specifically authorized by Code Section 42-8-63.1. The center shall not provide records of arrests, charges, or sentences when an individual has been sentenced as provided in Code Section 15-1-20, including records relating to such defendant's bench warrants, failure to appear, and probation for such offense, except as specifically authorized by Code Section 42-8-63.1.

(ii) During the period of time after a defendant, who has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 but has not been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, has completed active probation supervision through the remainder of such sentence, the center shall not provide records of arrests, charges, or sentences except as specifically authorized by Code Section 42-8-63.1.

(iii) The center may provide records of arrests, charges, or sentences when an individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 but has not been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, as specifically authorized by Code Section 42-8-63.1, while a defendant is under active probation supervision for such offense, or as provided in a court order only for the following purposes:

(I) As specifically authorized by Code Section 42-8-63.1;

(II) To criminal justice agencies for purposes of employment in accordance with procedures established by the center;

(III) Pursuant to any disclosure or consideration of criminal history record information required by federal or state law including, but not limited to, those disclosures required for federally insured financial institutions; or

(IV) For the purpose of any determination regarding the transfer of a firearm or the issuance of a license pursuant to Code Section 16-11-129;"

SECTION 2.

Said chapter is further amended by revising subparagraph (a)(1)(B) of Code Section 35-3-35, relating to disclosure and dissemination of records to public agencies and political subdivisions and responsibility and liability of issuing center, as follows: "(B)(i) The center shall not provide records of arrests, charges, or sentences when an individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 and has been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, including records relating to such defendant's bench warrants, failure to appear, and probation for such offense, except as specifically authorized by Code Section 42-8-63.1. The center shall not provide records of arrests, charges, or sentences when an individual has been sentenced as provided in Code Section 15-1-20, including records relating to such defendant's bench warrants, failure to appear, and probation for such offense, except as specifically authorized by Code Section 42-8-63.1.

(ii) During the period of time after a defendant, who has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 but has not been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, has completed active probation supervision through the remainder of such sentence, the center shall not provide records of arrests, charges, or sentences except as specifically authorized by Code Section 42-8-63.1.

(iii) The center may provide records of arrests, charges, or sentences when an individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 but has not been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, as specifically authorized by Code Section 42-8-63.1, while a defendant is under active probation supervision for such offense, or as provided in a court order only for the following purposes:

(I) As specifically authorized by Code Section 42-8-63.1;

(II) To criminal justice agencies for purposes of employment in accordance with procedures established by the center;

(III) Pursuant to any disclosure or consideration of criminal history record information required by federal or state law including, but not limited to, those disclosures required for federally insured financial institutions;

(IV) For the purpose of any determination regarding the transfer of a firearm or the issuance of a license pursuant to Code Section 16-11-129; or

(V) To criminal justice agencies, as such term is defined in Code Section 35-3-30;"

SECTION 3.

Article 3 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated, relating to first offenders relative to probation, is amended by revising Code Section 42-8-62.1, relating to limiting public access to first offender status, petitioning, and sealing record, is amended as follows:

"42-8-62.1.

(a) As used in this Code section, the term:

(1) 'Criminal history record information' shall have the same meaning as set forth in Code Section 35-3-30.

(2) 'Prosecuting attorney' shall have the same meaning as set forth in Code Section

35-3-37.

(3) 'Restrict,' 'restricted,' or 'restriction' shall have the same meaning as set forth in Code Section 35-3-37.

(4) 'Victim' shall have the same meaning as set forth in Code Section 17-17-3. (b)(1) At the time of sentencing, or during the term of a sentence that was imposed before July 1, 2016, the defendant may seek to the court shall limit public access to his or her first offender sentencing information, and the court may, in its discretion, order any of by ordering the following:

(A) Restrict dissemination of the defendant's first offender records, except as provided in subsection (h) of this Code section;

(B) The criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index, be sealed and unavailable to the public, except as provided in subsection (h) of this Code section; and

(C) Law enforcement agencies, jails, or detention centers to restrict the defendant's criminal history record information of arrest, including any fingerprints or photographs taken in conjunction with such arrest, except as provided in subsection (h) of this Code section.

(2) When considering the defendant's request under this subsection, the court shall weigh the public's interest in the defendant's criminal history record information being publicly available and the harm to the defendant's privacy and issue written findings of fact thereupon. Reserved.

(3) The court shall specify the date that such prohibited dissemination, sealing, and restrictions will take effect.

(c) An individual who has been exonerated of guilt and discharged pursuant to this article, including those individuals exonerated of guilt and discharged prior to July 1, 2016, was sentenced pursuant to this article prior to July 1, 2026, and has not had their sentence revoked and adjudicated guilty, may petition the court that granted ordered such discharge sentence for an order to seal and make unavailable to the public the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index limit public access to his or her case information pursuant to subsection (b) of this Code section. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice.

(d) Within 90 days of the filing of a petition pursuant to subsection (c) of this Code section, the court shall order restriction and sealing of the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index, to be sealed and made unavailable to the public, except as provided in subsection (h) of this Code section if the court finds by a preponderance of the evidence that:

(1) An exoneration of guilt and discharge has been granted pursuant to this article; and

(2) The harm otherwise resulting to the privacy of the individual outweighs the public interest in the criminal history record information being publicly available. (e)(1) Within 60 days of the filing of the court's order under subsection (b) or (d) of this Code section, the clerk of court shall cause every document in connection with such individual's case, physical or electronic, in its custody, possession, or control to be sealed to the public except as provided in subsection (h) of this Code section.

(2) Upon sealing and making unavailable to the public, the clerk of court shall display on the file in bold print on the cover of the file a notice to all court personnel that such file is sealed from the public view and dissemination of the contents to anyone other than those authorized by this Code section is prohibited. Such notice shall be sealed from public view and only available to the parties listed in subsection (h) of this Code section. Parties provided for in subsection (h) of this Code section shall maintain access to the record.

(f) When a court orders sealing of court records under subsection (b) or (d) of this Code section, the court may shall also order that records maintained by law enforcement agencies, jails, and detention centers be restricted and unavailable to the public. Such entities shall comply with such restriction order within 30 days of receiving a copy of such order.

(g)(1) Information sealed or restricted pursuant to this Code section shall always be available for inspection, copying, and use:

(A) As provided in subsection (c) of Code Section 42-8-65;

(B) By the Judicial Qualifications Commission;

(C) By a prosecuting attorney or public defender who submits a sworn affidavit to the clerk of court that attests that such information is relevant to a criminal proceeding;

(D) Pursuant to a court order; and

(E) By an individual who is the subject of sealed court files or restricted criminal history record information upon court order.

(2) The confidentiality of such information shall be maintained insofar as practical.

(g) If a court of competent jurisdiction revokes the First Offender Act sentence and adjudicates the defendant guilty of the underlying First Offender Act offense while such defendant is serving a first offender sentence, restriction and sealing of such court records shall be removed, and such records may be disseminated by the court, law enforcement agencies, jails, and detention centers.

(h)(1) The following entities shall be entitled to access the criminal file, docket books, criminal minutes, final record, and all other records of the court during the period of time a defendant has been sentenced pursuant to this article but has not been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order. No court order or affidavit shall be required for the following entities to access such records unless otherwise provided:

(A) As authorized by Code Section 42-8-63.1;

(B) To criminal justice agencies, as such term is defined in Code Section 35-3-30;

(C) As authorized by subsection (c) of Code Section 42-8-65;

(D) To any prosecuting attorney. Prosecuting attorneys shall be authorized to share relevant case information with the victim of the underlying first offender offense pursuant to the Crime Victims' Bill of Rights, as provided in Code Section 17-17-1;

(E) To any judge or court personnel;

(F) To any public defender;

(G) To an individual who is the subject of sealed court files or restricted criminal history record information;

(H) To the Judicial Qualifications Commission;

(I) To the Department of Community Supervision;

(J) To the State Board of Pardons and Paroles;

(K) Pursuant to any disclosure or consideration of criminal history record information required by federal or state law including, but not limited to, those disclosures required for federally insured financial institutions;

(L) For the purpose of any determination regarding the transfer of a firearm or the issuance of a license pursuant to Code Section 16-11-129; or

(M) When such records are made available for inspection, copying, and use pursuant to a court order.

(2) The confidentiality of such information shall be maintained insofar as practical."

SECTION 4.

Said article is further amended by adding a new Code section to read as follows:

"42-8-62.2.

(a) As used in this Code section, the term:

(1) 'Criminal history record information' shall have the same meaning as set forth in Code Section 35-3-30.

(2) 'Prosecuting attorney' shall have the same meaning as set forth in Code Section

35-3-37.

(3) 'Restrict,' 'restricted,' or 'restriction' shall have the same meaning as set forth in Code Section 35-3-37.

(b) At the time a defendant who has been sentenced pursuant to this article has been exonerated and discharged without court adjudication of guilt as a matter of law or pursuant to a court order, the criminal file, docket books, criminal minutes, final record, and all other records of the court shall be restricted except as provided in subsection (g) of this Code section.

(c) An individual who has been exonerated of guilt and discharged without court adjudication of guilt as a matter of law or pursuant to a court order pursuant to this article prior to July 1, 2026, may petition the court that granted such discharge for an order to seal and make unavailable to the public the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice.

(d) Within 90 days of the filing of a petition pursuant to subsection (c) of this Code section, the court shall order the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index, to be sealed and made unavailable to the public.

(e) Within 60 days of exoneration and discharge under subsection (b) of this Code section or the filing of the court's order under subsection (d) of this Code section, the clerk of court shall cause every document in connection with such individual's case, physical or electronic, in its custody, possession, or control to be sealed.

(f) When a court orders sealing of court records under this Code section, the court shall also order that records maintained by law enforcement agencies, jails, and detention centers be restricted and unavailable to the public. Such entities shall comply with such restriction within 30 days of receiving a copy of such order.

(g)(1) Information sealed or restricted pursuant to this Code section shall always be available for inspection, copying, and use:

(A) As provided in subsection (c) of Code Section 42-8-65;

(B) By the Judicial Qualifications Commission;

(C) By judges of courts of competent jurisdiction in the State of Georgia;

(D) By a prosecuting attorney or public defender who submits a sworn affidavit to the clerk of court that attests that such information is relevant to a criminal proceeding. No prosecuting attorney or public defender shall be required to obtain a court order to obtain such information that is relevant to a criminal proceeding;

(E) Pursuant to a court order; and

(F) By an individual who is the subject of sealed court files or restricted criminal history record information.

(2) The confidentiality of such information shall be maintained insofar as practical."

SECTION 5.

All laws and parts of laws in conflict with this Act are repealed.