Proposed Committee Substitute by the Committee on Criminal Justice

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A bill to be entitled

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An act relating to a review under the Open Government

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Sunset Review Act regarding victims of child abuse or sex

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crimes; amending s. 119.071, F.S.; expanding the exemption

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for certain victim information by making it confidential

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and exempt from public record requirements; expanding the

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exemption to include sexual offenses prohibited under

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chapters 796 and 847, F.S.; creating exceptions to the

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public record exemption; providing for future legislative

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review of the exemption; reorganizing the exemption;

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providing a statement of public necessity; repealing s. 2

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of Chapter 2003-157, Laws of Florida, which provides for

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repeal of the exemption; amending s. 92.56, F.S.;

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requiring that the confidential and exempt status of

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certain victim information made confidential and exempt s.

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119.071(2)(h), F.S., be maintained in court records and

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court proceedings; providing for a petition for access at

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the trial court; providing specified criteria for

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maintaining the confidential and exempt status of such

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information upon the filing of a petition; permitting a

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defendant charged with specified offenses to apply for an

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order of disclosure to prepare a defense; amending s.

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119.0714, F.S.; conforming the provisions to changes made

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in s. 119.071(2)(h), F.S.; amending s. 794.03, F.S.;

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conforming the provisions to changes made in s.

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119.071(2)(h), F.S.; providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Paragraph (h) of subsection (2) of section

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119.071, Florida Statutes, is amended to read:

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     119.071  General exemptions from inspection or copying of

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public records.--

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     (2)  AGENCY INVESTIGATIONS.--

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     (h)1. The following criminal intelligence information or

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criminal investigative information is confidential and exempt

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from s. 119.07(1) and s. 24(a), Art. I of the State Constitution:

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a. Any criminal intelligence information or criminal

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investigative information, including the photograph, name,

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address, or other fact, or information which reveals the identity

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of the victim of the crime of sexual battery as defined in

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chapter 794; the identity of the victim of a lewd or lascivious

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offense committed upon or in the presence of a person less than

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16 years of age, as defined in chapter 800; or the identity of

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the victim of the crime of child abuse as defined by chapter 827.

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and

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b. Any criminal intelligence information or criminal

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investigative information or other criminal record, including

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those portions of court records and court proceedings, which may

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reveal the identity of a person who is a victim of any sexual

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offense, including a sexual offense proscribed in chapter 794,

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chapter 796, chapter 800, or chapter 827, or chapter 847 is

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exempt from s. 119.07(1) and s. 24(a), Art. I of the State

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Constitution.

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     c.2. In addition to subparagraph 1., any criminal

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intelligence information or criminal investigative information

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that is A photograph, videotape, or image of any part of the body

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of the victim of a sexual offense prohibited under chapter 794,

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chapter 796, chapter 800, or chapter 827, or chapter 847,

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regardless of whether the photograph, videotape, or image

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identifies the victim, is confidential and exempt from s.

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119.07(1) and s. 24(a), Art. I of the State Constitution.

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     2. Criminal investigative information and criminal

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intelligence information made confidential and exempt under this

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paragraph may be disclosed by a law enforcement agency:

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     a. In the furtherance of its official duties and

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responsibilities.

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     b. For print, publication, or broadcast if the law

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enforcement agency determines that such release would assist in

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locating or identifying a person that such agency believes to be

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missing or endangered. The information provided should be limited

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to that needed to identify or locate the victim and not include

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the sexual nature of the offense committed against the person.

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3. This exemption applies to such confidential and exempt

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photographs, videotapes, or images held as criminal intelligence

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information or criminal investigative information held by a law

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enforcement agency before, on, or after the effective date of the

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exemption.

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     4. This paragraph is subject to the Open Government Sunset

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Review Act in accordance with s. 119.15, and shall stand repealed

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on October 2, 2013, unless reviewed and saved from repeal through

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reenactment by the Legislature.

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     Section 2. The Legislature finds that it is a public

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necessity to make confidential and exempt from public records

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requirements certain criminal intelligence information or

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criminal investigative information which reveals the identity of

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a victim of the crime of child abuse or of any sexual offense.

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The Legislature also finds that it is a public necessity to make

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confidential and exempt from public records requirements a

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photograph, videotape, or image of any part of the body of a

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victim of a sexual offense regardless of whether the photograph,

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videotape, or image identifies the victim. The Legislature finds

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that it is important to strengthen the protections afforded

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victims of sexual offenses or child abuse in order to ensure

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their privacy and to prevent revictimization by making such

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information confidential and exempt. The identity of victims of

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child abuse or sexual offenses is information of a sensitive

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personal nature. As such, this exemption serves to minimize the

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trauma to victims because the release of such information would

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compound the tragedy already visited upon their lives and would

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be defamatory to or cause unwarranted damage to the good name or

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reputation of the victims. Protecting the release of identifying

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information of such victims protects them from further

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embarrassment, harassment, or injury. The Legislature further

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finds that it is a public necessity that criminal intelligence

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information or criminal investigative information that is a

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photograph, videotape, or image of any part of the body of a

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victim of a sexual offense prohibited under chapter 794, chapter

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800, chapter 827, or chapter 847, Florida Statutes, be made

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confidential and exempt from public records requirements. The

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Legislature finds that such photographs, videotapes, or images

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often depict the victim in a graphic and disturbing fashion,

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frequently nude, bruised, or bloodied. Such highly sensitive

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photographs, videotapes, or images of a victim of a sexual

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offense, if viewed, copied, or publicized, could result in

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trauma, sorrow, humiliation, or emotional injury to the victim

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and the victim's family.

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     Section 3. Section 2. of Chapter 2003-157, Laws of Florida,

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is repealed.

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     Section 4.  Section 92.56, Florida Statutes, is amended to

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read:

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92.56  Judicial proceedings and court records involving sexual

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offenses.--

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     (1)(a) The confidential and exempt status of criminal

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intelligence information or criminal investigative information

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made confidential and exempt pursuant to s. 119.071(2)(h) must be

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maintained in court records pursuant to s. 119.0714(1)(h), and in

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court proceedings, including testimony from witnesses.

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     (b) If a petition for access to such confidential and

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exempt records is filed with the trial court with jurisdiction

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over the alleged offense, the confidential and exempt status of

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such information shall be maintained by the court if the state or

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the victim demonstrates that: All court records, including

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testimony from witnesses, that reveal the photograph, name, or

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address of the victim of an alleged offense described in chapter

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794 or chapter 800, or act of child abuse, aggravated child

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abuse, or sexual performance by a child as described in chapter

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827, are confidential and exempt from the provisions of s. 24(a),

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Art. I of the State Constitution and may not be made public if,

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upon a showing to the trial court with jurisdiction over the

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alleged offense, the state or the victim demonstrates that:

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     1.(a) The identity of the victim is not already known in

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the community;

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     2.(b) The victim has not voluntarily called public

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attention to the offense;

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     3.(c) The identity of the victim has not otherwise become a

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reasonable subject of public concern;

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     4.(d) The disclosure of the victim's identity would be

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offensive to a reasonable person; and

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     5.(e) The disclosure of the victim's identity would:

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     a.1. Endanger the victim because the assailant has not been

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apprehended and is not otherwise known to the victim;

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     b.2. Endanger the victim because of the likelihood of

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retaliation, harassment, or intimidation;

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     c.3. Cause severe emotional or mental harm to the victim;

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     d.4. Make the victim unwilling to testify as a witness; or

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     e.5. Be inappropriate for other good cause shown.

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     (2) A If the court, pursuant to subsection (1), declares

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that all court records or other information that reveals the

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photograph, name, or address of the victim are confidential and

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exempt from s. 24(a), Art. I of the State Constitution, the

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defendant charged with a the crime described in chapter 794 or

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chapter 800, or with child abuse, aggravated child abuse, or

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sexual performance by a child as described in chapter 827, may

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apply to the trial court for an order of disclosure of

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information in court records held confidential and exempt

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pursuant to s. 119.0714(1)(h) or maintained as confidential and

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exempt pursuant to court order under this section. Such

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identifying information concerning the victim may be released to

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the defendant or his or her attorney in order to prepare the

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defense. The confidential and exempt status of this information

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This paragraph may not be construed to prevent the disclosure of

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the victim's identity to the defendant; however, the defendant

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may not disclose the victim's identity to any person other than

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the defendant's attorney or any other person directly involved in

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the preparation of the defense. A willful and knowing disclosure

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of the identity of the victim to any other person by the

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defendant constitutes contempt.

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     (3)  The state may use a pseudonym instead of the victim's

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name to designate the victim of a crime described in chapter 794

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or chapter 800, or of child abuse, aggravated child abuse, or

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sexual performance by a child as described in chapter 827, in all

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court records and records of court proceedings.

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     (4)  The protection of this section may be waived by the

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victim of the alleged offense in a writing filed with the court,

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in which the victim consents to the use or release of identifying

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information during court proceedings and in the records of court

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proceedings.

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     (5)  This section does not prohibit the publication or

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broadcast of the substance of trial testimony in a prosecution

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for an offense described in chapter 794 or chapter 800, or a

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crime of child abuse, aggravated child abuse, or sexual

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performance by a child, as described in chapter 827, but the

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publication or broadcast may not include an identifying

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photograph, an identifiable voice, or the name or address of the

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victim, unless the victim has consented in writing to the

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publication and filed such consent with the court or unless the

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court has declared such records not confidential and exempt as

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provided for in subsection (1).

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     (6)  A willful and knowing violation of this section or a

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willful and knowing failure to obey any court order issued under

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this section constitutes contempt.

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     Section 5.  Paragraph (h) of subsection (1) of section

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119.0714, Florida Statutes, is amended to read:

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     119.0714  Court files; court records; official records.--

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     (1)  COURT FILES.--Nothing in this chapter shall be

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construed to exempt from s. 119.07(1) a public record that was

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made a part of a court file and that is not specifically closed

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by order of court, except:

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     (h) Criminal intelligence information or criminal

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investigative information that is confidential and exempt

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information or records that may reveal the identity of a person

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who is a victim of a sexual offense as provided in s.

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119.071(2)(h).

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     Section 6.  Section 794.03, Florida Statutes, is amended to

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read:

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     794.03  Unlawful to publish or broadcast information

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identifying sexual offense victim.--No person shall print,

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publish, or broadcast, or cause or allow to be printed,

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published, or broadcast, in any instrument of mass communication

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the name, address, or other identifying fact or information of

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the victim of any sexual offense within this chapter, except as

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provided in s. 119.071(2)(h) or unless the court determines that

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such information is no longer confidential and exempt pursuant to

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s. 92.56. Such identifying information is confidential and exempt

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from the provisions of s. 119.07(1). An offense under this

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section shall constitute a misdemeanor of the second degree,

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punishable as provided in s. 775.082 or s. 775.083.

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     Section 7.  This act shall take effect October 1, 2008.