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I decided to pay $25.00 to the state of Florida to obtain a copy of my Florida Criminal History Report. I found there is blatantly fictitious information on my report claiming I was charged with possession of cocaine! I am beginning the process of challenging the report, and I'm confident it will be successful, but this has apparently been on my criminal record for at least a couple of years, without my knowledge or consent, and I believe it may have affected my job prospects, and could even have resulted in lost wages.

My question is: Can I sue the state for this?

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You might be able to bring suit to correct an erroneous criminal history report as a claim for declaratory or injunctive relief, something that is not barred by governmental immunity.

It is probably, however, necessary to exhaust any administrative remedies to have it corrected outside the court system first. The administrative remedy that is available is described here. It involves filing an Application for Personal Review of Florida Criminal History Record to submit to the Florida Department of Law Enforcement.

You have essentially no chance of overcoming governmental immunity to be awarded money damages for its error, even if you can clearly prove that you suffered money damages as a result of negligence in the maintenance of your criminal history records.

State governments are generally immune from civil liability except where there is a statutory waiver of that protection, in part, due to the 11th Amendment to the United States Constitution (which have been interpreted to affirmatively create government immunity for states despite the fact that its literal language doesn't say so).

Whether Florida has waived liability in this context is unclear. The main relevant Florida statute is Florida Statutes § 768.28.

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    Even if the state waived immunity, might they have to prove actual damage, not just potential damage? I.e. find an employer who rejected them because they failed a background check?
    – Barmar
    Commented Apr 12 at 17:40
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    @Barmar Yes. It would be necessary to prove actual damage even if governmental immunity was waived.
    – ohwilleke
    Commented Apr 12 at 17:42
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    @ohwilleke: Wouldn't OP (in the hypothetical where sovereign immunity is waived) have a claim for defamation per se, which doesn't require proving actual damages?
    – Kevin
    Commented Apr 13 at 21:38
  • @Kevin: one would still at the least have to show that the state was negligent, and nothing that the OP has said implies any negligence rather than simple error.
    – jmoreno
    Commented Apr 14 at 14:19
  • @Kevin Defamation per se is generally an intentional tort that doesn't arise from mere negligence.
    – ohwilleke
    Commented Apr 14 at 22:57

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