Florida Senate - 2009                                     SB 636
       
       
       
       By Senator Dean
       
       
       
       
       3-00672-09                                             2009636__
    1                        A bill to be entitled                      
    2         An act relating to public records; creating s.
    3         925.131, F.S.; providing definitions; providing an
    4         exemption from the public-records law for
    5         investigative or crime scene photographs or video
    6         recordings of a deceased person, a part of a deceased
    7         person, or any part of a person's extreme, severe, or
    8         acute injuries held by a law enforcement agency;
    9         providing exceptions for certain relatives, injured
   10         persons, or their designees; permitting a local or
   11         county governmental entity, or a state or federal
   12         agency, in furtherance of its official duties, to
   13         access such records pursuant to a written request to
   14         the law enforcement agency in possession of such
   15         records; permitting a court, upon a showing of good
   16         cause, to authorize any person to view or copy such a
   17         record and impose any restrictions or stipulations
   18         that it deems appropriate; requiring notice of such a
   19         proceeding, a copy of the petition, and notice of the
   20         opportunity to be present and heard at any hearing to
   21         be provided to an injured person or to specified
   22         relatives of a deceased person; requiring that the
   23         viewing, copying, or other handling of such a record
   24         be under the direct supervision of the custodian of
   25         the record or his or her designee; providing criminal
   26         penalties for violations of statute or court order;
   27         exempting specified proceedings; permitting a judge or
   28         other presiding officer in a criminal, civil, or
   29         administrative proceeding upon good cause shown to
   30         restrict or otherwise control the disclosure of such a
   31         record; providing for future legislative review and
   32         repeal; providing a finding of public necessity;
   33         providing for retroactive effect; providing a
   34         contingent effective date.
   35         
   36  Be It Enacted by the Legislature of the State of Florida:
   37         
   38         Section 1. Section 925.131, Florida Statutes, is created to
   39  read:
   40         925.131Public-records exemption for certain law
   41  enforcement photographs or video recordings.—
   42         (1) For purposes of this section, the term:
   43         (a)“Law enforcement agency” means any state agency or unit
   44  of government in this state that has authority to employ or
   45  appoint law enforcement officers, as defined in s. 943.10, as
   46  well as any employee, deputy, or agent of such an agency or any
   47  other person who may obtain possession of a restricted
   48  photograph or recording in the course of assisting such an
   49  agency in the performance of its duties.
   50         (b) “Restricted photograph or recording” means an
   51  investigative or crime scene photograph or video recording of a
   52  deceased person, a part of a deceased person, or any part of a
   53  person's extreme, severe, or acute injuries.
   54         (2)(a) A restricted photograph or recording held by a law
   55  enforcement agency is confidential and exempt from s. 119.07(1)
   56  and s. 24(a), Art. I of the State Constitution, except that:
   57         1. A restricted photograph or recording of a deceased
   58  person may be viewed and copied by the surviving spouse of that
   59  person, by a surviving parent of that person if there is no
   60  surviving spouse, or by an adult child of the person if there is
   61  no surviving spouse or parent.
   62         2. A person whose extreme, severe, or acute injury is
   63  depicted in whole or in part in a restricted photograph or
   64  recording may view and copy such restricted photograph or
   65  recording.
   66         (b) Any person authorized to obtain records under this
   67  subsection may designate in writing an agent to obtain such
   68  records on his or her behalf.
   69         (c) Persons authorized under this subsection to obtain such
   70  records shall be provided access thereto unless such records are
   71  otherwise exempt from s. 119.07(1) and s. 24(a), Art. I of the
   72  State Constitution.
   73         (3) A local or county governmental entity, or a state or
   74  federal agency, in furtherance of its official duties and
   75  pursuant to a written request to the law enforcement agency in
   76  possession of such records, may view or copy a restricted
   77  photograph or recording; however, unless otherwise required in
   78  the performance of the entity's or agency's duties, the identity
   79  of the deceased or injured person shall retain its confidential
   80  and exempt status.
   81         (4) Any viewing, copying, or other handling of a restricted
   82  photograph or recording must be under the direct supervision of
   83  the custodian of the record or his or her designee. The
   84  custodian or his or her designee may not permit any person,
   85  other than a person so authorized under subsection (2) or
   86  subsection (3), to view or copy a restricted photograph or
   87  recording unless required to do so by court order under
   88  subsection (5).
   89         (5)(a) A court, upon a showing of good cause, may issue an
   90  order as provided in this subsection authorizing any person to
   91  view or copy a restricted photograph or recording and may
   92  prescribe any restrictions or stipulations that the court deems
   93  appropriate.
   94         (b) In determining good cause for purposes of paragraph
   95  (a), the court shall consider whether such disclosure is
   96  necessary for the public evaluation of governmental performance,
   97  the seriousness of the intrusion into the family's or injured
   98  person's right to privacy, whether such disclosure is the least
   99  intrusive means available to enable public evaluation of
  100  governmental performance, and the availability of similar
  101  information in other public records, regardless of form.
  102         (c) A surviving spouse of a deceased person or an injured
  103  person appearing in a restricted photograph or recording shall
  104  be given reasonable notice of a petition filed with the court
  105  under this subsection to view or copy the restricted photograph
  106  or recording, a copy of such petition, and reasonable notice of
  107  the opportunity to be present and heard at any hearing on the
  108  matter. If there is no surviving spouse, then such notice must
  109  be given to the parents of the deceased, and if the deceased has
  110  no living parent, then to the adult children of the deceased.
  111         (6)(a) Any custodian or a designee of a custodian of a
  112  restricted photograph or recording who willfully and knowingly
  113  violates a provision of this section commits a felony of the
  114  third degree, punishable as provided in s. 775.082, s. 775.083,
  115  or s. 775.084.
  116         (b) Any person who willfully and knowingly violates a court
  117  order issued pursuant to this section commits a felony of the
  118  third degree, punishable as provided in s. 775.082, s. 775.083,
  119  or s. 775.084.
  120         (7) A criminal, civil, or administrative proceeding is
  121  exempt from the application of this section as to any
  122  photographs or recordings, but unless such photographs or
  123  recordings are otherwise exempt from s. 119.07(1) and s. 24(a),
  124  Art. I of the State Constitution, the photographs or recordings
  125  are subject to all other provisions of chapter 119. However,
  126  this section does not prohibit a judge or other presiding
  127  officer in a criminal, civil, or administrative proceeding, upon
  128  good cause shown, from restricting or otherwise controlling the
  129  disclosure of a restricted photograph or recording, or a similar
  130  photograph or recording, in the manner prescribed in this
  131  section.
  132         (8) This section is subject to the Open Government Sunset
  133  Review Act in accordance with s. 119.15, and shall stand
  134  repealed on October 2, 2014, unless reviewed and saved from
  135  repeal through reenactment by the Legislature.
  136         Section 2. The Legislature finds that it is a public
  137  necessity that investigative or crime scene photographs or video
  138  recordings of a deceased person, a part of a deceased person, or
  139  any part of a person's extreme, severe, or acute injuries be
  140  confidential and exempt from disclosure. The Legislature finds
  141  that such photographs or video recordings may depict or describe
  142  a deceased or suffering person in graphic and disturbing
  143  fashion. Such photographs or video recordings, if viewed,
  144  copied, or publicized, could result in trauma, sorrow,
  145  humiliation, or emotional injury to the individual depicted or
  146  his or her immediate family. If the individual is deceased, such
  147  dissemination could also cause injury to the memory of the
  148  deceased. The Legislature notes that the existence of the
  149  Internet and the proliferation of personal computers throughout
  150  the world encourages and promotes the wide dissemination of
  151  photographs and video recordings 24 hours a day and that
  152  widespread unauthorized dissemination of photographs and video
  153  recordings would subject a suffering individual and the
  154  immediate family of a deceased or suffering individual to
  155  continuous injury. The Legislature further notes that there
  156  continue to be other types of available information, such as
  157  police reports, that are less intrusive and injurious and that
  158  continue to provide for public oversight. The Legislature
  159  further finds that the exemption provided in this act should be
  160  given retroactive application because it is remedial in nature.
  161         Section 3. This act shall apply to all photographs or video
  162  recordings subject to its terms regardless of whether they were
  163  created before, on, or after the effective date of this act.
  164         Section 4. This act shall take effect on the same date that
  165  SB ____ or similar legislation takes effect, if such legislation
  166  is enacted in the same legislative session or an extension
  167  thereof and becomes law.