| 1 | A bill to be entitled |
| 2 | An act relating to public records; providing a definition; |
| 3 | providing an exemption from public records requirements |
| 4 | for photographs and video and audio recordings that depict |
| 5 | or record the killing of a person; authorizing access to |
| 6 | such photographs or video or audio recordings by specified |
| 7 | members of the immediate family of the deceased subject of |
| 8 | the photographs or video or audio recordings; providing |
| 9 | for access to such records by local governmental entities |
| 10 | or state or federal agencies in furtherance of official |
| 11 | duties; providing for access pursuant to court order; |
| 12 | providing guidelines of the court in issuing an order |
| 13 | authorizing such photographs or video or audio recordings |
| 14 | to be viewed, copied, or heard; requiring specified notice |
| 15 | of a court petition to view or copy such records; |
| 16 | providing penalties; exempting criminal or administrative |
| 17 | proceedings from the act; providing for retroactive |
| 18 | application; providing for future legislative review and |
| 19 | repeal of the exemption; providing a finding of public |
| 20 | necessity; providing an effective date. |
| 21 |
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| 22 | Be It Enacted by the Legislature of the State of Florida: |
| 23 |
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| 24 | Section 1. (1) As used in this section, the term "killing |
| 25 | of a person" means all acts or events that cause or otherwise |
| 26 | relate to the death of any human being, including any related |
| 27 | acts or events immediately preceding or subsequent to the acts |
| 28 | or events that were the proximate cause of death. |
| 29 | (2) A photograph or video or audio recording that depicts |
| 30 | or records the killing of a person is confidential and exempt |
| 31 | from section 119.07(1), Florida Statutes, and s. 24(a), Art. I |
| 32 | of the State Constitution, except that a surviving spouse of the |
| 33 | decedent may view and copy any such photograph or video |
| 34 | recording or listen to or copy any such audio recording. If |
| 35 | there is no surviving spouse, then the surviving parents shall |
| 36 | have access to such records. If there is no surviving spouse or |
| 37 | parent, then an adult child shall have access to such records. |
| 38 | (3)(a) The deceased's surviving relative, with whom |
| 39 | authority rests to obtain such records, may designate in writing |
| 40 | an agent to obtain such records. |
| 41 | (b) A local governmental entity, or a state or federal |
| 42 | agency, in furtherance of its official duties, pursuant to a |
| 43 | written request, may view or copy a photograph or video |
| 44 | recording or may listen to or copy an audio recording of the |
| 45 | killing of a person and, unless otherwise required in the |
| 46 | performance of their duties, the identity of the deceased shall |
| 47 | remain confidential and exempt. |
| 48 | (c) The custodian of the record, or his or her designee, |
| 49 | may not permit any other person to view or copy such photograph |
| 50 | or video recording or listen to or copy such audio recording |
| 51 | without a court order. |
| 52 | (4)(a) The court, upon a showing of good cause, may issue |
| 53 | an order authorizing any person to view or copy a photograph or |
| 54 | video recording that depicts or records the killing of a person |
| 55 | or to listen to or copy an audio recording that depicts or |
| 56 | records the killing of a person and may prescribe any |
| 57 | restrictions or stipulations that the court deems appropriate. |
| 58 | (b) In determining good cause, the court shall consider: |
| 59 | 1. Whether such disclosure is necessary for the public |
| 60 | evaluation of governmental performance; |
| 61 | 2. The seriousness of the intrusion into the family's |
| 62 | right to privacy and whether such disclosure is the least |
| 63 | intrusive means available; and |
| 64 | 3. The availability of similar information in other public |
| 65 | records, regardless of form. |
| 66 | (c) In all cases, the viewing, copying, listening to, or |
| 67 | other handling of a photograph or video or audio recording that |
| 68 | depicts or records the killing of a person must be under the |
| 69 | direct supervision of the custodian of the record or his or her |
| 70 | designee. |
| 71 | (5) A surviving spouse shall be given reasonable notice of |
| 72 | a petition filed with the court to view or copy a photograph or |
| 73 | video recording that depicts or records the killing of a person |
| 74 | or to listen to or copy any such audio recording, a copy of such |
| 75 | petition, and reasonable notice of the opportunity to be present |
| 76 | and heard at any hearing on the matter. If there is no surviving |
| 77 | spouse, then such notice must be given to the parents of the |
| 78 | deceased and, if the deceased has no living parent, then to the |
| 79 | adult children of the deceased. |
| 80 | (6)(a) Any custodian of a photograph or video or audio |
| 81 | recording that depicts or records the killing of a person who |
| 82 | willfully and knowingly violates this section commits a felony |
| 83 | of the third degree, punishable as provided in section 775.082, |
| 84 | section 775.083, or section 775.084, Florida Statutes. |
| 85 | (b) Any person who willfully and knowingly violates a |
| 86 | court order issued pursuant to this section commits a felony of |
| 87 | the third degree, punishable as provided in section 775.082, |
| 88 | section 775.083, or section 775.084, Florida Statutes. |
| 89 | (c) A criminal or administrative proceeding is exempt from |
| 90 | this section but, unless otherwise exempted, is subject to all |
| 91 | other provisions of chapter 119, Florida Statutes, provided |
| 92 | however that this section does not prohibit a court in a |
| 93 | criminal or administrative proceeding upon good cause shown from |
| 94 | restricting or otherwise controlling the disclosure of a |
| 95 | killing, crime scene, or similar photograph or video or audio |
| 96 | recordings in the manner prescribed herein. |
| 97 | (7) This exemption shall be given retroactive application |
| 98 | and shall apply to all photographs or video or audio recordings |
| 99 | that depict or record the killing of a person, regardless of |
| 100 | whether the killing of the person occurred before, on, or after |
| 101 | July 1, 2011. |
| 102 | (8) This section is subject to the Open Government Sunset |
| 103 | Review Act in accordance with s. 119.15, Florida Statutes, and |
| 104 | shall stand repealed on October 2, 2016, unless reviewed and |
| 105 | saved from repeal through reenactment by the Legislature. |
| 106 | Section 2. The Legislature finds that is a public |
| 107 | necessity that photographs and video and audio recordings that |
| 108 | depict or record the killing of any person be made confidential |
| 109 | and exempt from the requirements of section 119.07(1), Florida |
| 110 | Statutes, and Section 24(a) of Article I of the State |
| 111 | Constitution. The Legislature finds that photographs or video or |
| 112 | audio recordings that depict or record the killing of any person |
| 113 | render a visual or aural representation of the deceased in |
| 114 | graphic and often disturbing fashion. Such photographs or video |
| 115 | or audio recordings provide a view of the deceased in the final |
| 116 | moments of life, often bruised, bloodied, broken, with bullet |
| 117 | wounds or other wounds, cut open, dismembered, or decapitated. |
| 118 | As such, photographs or video or audio recordings that depict or |
| 119 | record the killing of any person are highly sensitive |
| 120 | representations of the deceased which, if heard, viewed, copied |
| 121 | or publicized, could result in trauma, sorrow, humiliation, or |
| 122 | emotional injury to the immediate family of the deceased, as |
| 123 | well as injury to the memory of the deceased. The Legislature |
| 124 | recognizes that the existence of the World Wide Web and the |
| 125 | proliferation of personal computers throughout the world |
| 126 | encourages and promotes the wide dissemination of such |
| 127 | photographs and video and audio recordings 24 hours a day and |
| 128 | that widespread unauthorized dissemination of photographs and |
| 129 | video and audio recordings would subject the immediate family of |
| 130 | the deceased to continuous injury. The Legislature further |
| 131 | recognizes that there continue to be other types of available |
| 132 | information, such as crime scene reports, which are less |
| 133 | intrusive and injurious to the immediate family members of the |
| 134 | deceased and which continue to provide for public oversight. The |
| 135 | Legislature further finds that the exemption provided in this |
| 136 | act should be given retroactive application because it is |
| 137 | remedial in nature. |
| 138 | Section 3. This act shall take effect July 1, 2011. |