Florida Senate - 2018                                    SB 1178
       
       
        
       By Senator Bracy
       
       
       
       
       
       11-01201-18                                           20181178__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         406.136, F.S.; defining the terms “killing of a
    4         person” and “care and custody of a state agency”;
    5         expanding an exemption from public records
    6         requirements for a photograph or video or audio
    7         recording held by an agency which depicts or records
    8         the killing of a law enforcement officer to include a
    9         photograph or video or audio recording held by an
   10         agency which depicts or records the killing of a
   11         person; specifying that the exemption from public
   12         records requirements does not apply to the killing of
   13         a person in the care and custody of a state agency;
   14         providing for future legislative review and repeal of
   15         the exemption; providing a statement of public
   16         necessity; providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Section 406.136, Florida Statutes, is amended to
   21  read:
   22         406.136 A photograph or video or audio recording that
   23  depicts or records the killing of a person law enforcement
   24  officer who was acting in accordance with his or her official
   25  duties.—
   26         (1) As used in this section, the term “killing of a person”
   27  “killing of a law enforcement officer who was acting in
   28  accordance with his or her official duties” means all acts or
   29  events that cause or otherwise relate to the death of any human
   30  being a law enforcement officer who was acting in accordance
   31  with his or her official duties, including any related acts or
   32  events immediately preceding or subsequent to the acts or events
   33  that were the proximate cause of death. The term does not
   34  include the killing of a person in the care and custody of a
   35  state agency. For purposes of this subsection, the term “care
   36  and custody of a state agency” includes, but is not limited to,
   37  a protective investigation, protective supervision, or foster
   38  care as those terms are defined in s. 39.01; a protective
   39  investigation or protective supervision of a vulnerable adult as
   40  those terms are defined in s. 415.102; or an inmate in custody
   41  of the Department of Corrections.
   42         (2) A photograph or video or audio recording that depicts
   43  or records the killing of a person law enforcement officer who
   44  was acting in accordance with his or her official duties is
   45  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   46  of the State Constitution, except that a surviving spouse of the
   47  deceased decedent may view and copy any such photograph or video
   48  recording or listen to or copy any such audio recording. If
   49  there is no surviving spouse, then the surviving parents shall
   50  have access to such records. If there is no surviving spouse or
   51  parent, the then an adult children child shall have access to
   52  such records.
   53         (3)(a) The deceased’s surviving relative, with whom
   54  authority rests to obtain such records, may designate in writing
   55  an agent to obtain such records.
   56         (b) A local governmental entity, or a state or federal
   57  agency, in furtherance of its official duties, pursuant to a
   58  written request, may view or copy a photograph or video
   59  recording or may listen to or copy an audio recording of the
   60  killing of a person law enforcement officer who was acting in
   61  accordance with his or her official duties and, unless otherwise
   62  required in the performance of its their duties, the identity of
   63  the deceased shall remain confidential and exempt.
   64         (c) The custodian of the record, or his or her designee,
   65  may not permit any other person to view or copy such photograph
   66  or video recording or listen to or copy such audio recording
   67  without a court order.
   68         (4)(a) The court, upon a showing of good cause, may issue
   69  an order authorizing any person to view or copy a photograph or
   70  video recording that depicts or records the killing of a person
   71  law enforcement officer who was acting in accordance with his or
   72  her official duties or to listen to or copy an audio recording
   73  that depicts or records the killing of a person law enforcement
   74  officer who was acting in accordance with his or her official
   75  duties and may prescribe any restrictions or stipulations that
   76  the court deems appropriate.
   77         (b) In determining good cause, the court shall consider:
   78         1. Whether such disclosure is necessary for the public
   79  evaluation of governmental performance;
   80         2. The seriousness of the intrusion into the family’s right
   81  to privacy and whether such disclosure is the least intrusive
   82  means available; and
   83         3. The availability of similar information in other public
   84  records, regardless of form.
   85         (c) In all cases, the viewing, copying, listening to, or
   86  other handling of a photograph or video or audio recording that
   87  depicts or records the killing of a person law enforcement
   88  officer who was acting in accordance with his or her official
   89  duties must be under the direct supervision of the custodian of
   90  the record or his or her designee.
   91         (5) A surviving spouse shall be given reasonable notice of
   92  a petition filed with the court to view or copy a photograph or
   93  video recording that depicts or records the killing of a person
   94  law enforcement officer who was acting in accordance with his or
   95  her official duties or to listen to or copy any such audio
   96  recording, a copy of such petition, and reasonable notice of the
   97  opportunity to be present and heard at any hearing on the
   98  matter. If there is no surviving spouse, then such notice must
   99  be given to the parents of the deceased and, if the deceased has
  100  no surviving living parent, then to the adult children of the
  101  deceased.
  102         (6)(a) Any custodian of a photograph or video or audio
  103  recording that depicts or records the killing of a person law
  104  enforcement officer who was acting in accordance with his or her
  105  official duties who willfully and knowingly violates this
  106  section commits a felony of the third degree, punishable as
  107  provided in s. 775.082, s. 775.083, or s. 775.084.
  108         (b) Any person who willfully and knowingly violates a court
  109  order issued pursuant to this section commits a felony of the
  110  third degree, punishable as provided in s. 775.082, s. 775.083,
  111  or s. 775.084.
  112         (c) A criminal or administrative proceeding is exempt from
  113  this section but, unless otherwise exempted, is subject to all
  114  other provisions of chapter 119;, provided, however, that this
  115  section does not prohibit a court in a criminal or
  116  administrative proceeding upon good cause shown from restricting
  117  or otherwise controlling the disclosure of a killing, crime
  118  scene, or similar photograph or video or audio recording
  119  recordings in the manner prescribed in this section herein.
  120         (7) The This exemption in this section shall be given
  121  retroactive application and shall apply to all photographs or
  122  video or audio recordings that depict or record the killing of a
  123  person law enforcement officer who was acting in accordance with
  124  his or her official duties, regardless of whether the killing of
  125  the person occurred before, on, or after July 1, 2015 2011.
  126  However, nothing this section herein is not intended to, and nor
  127  may not be construed to, overturn or abrogate or alter any
  128  existing orders duly entered into by any court of this state, as
  129  of the effective date of this act, which restrict or limit
  130  access to any photographs or video or audio recordings that
  131  depict or record the killing of a person law enforcement officer
  132  who was acting in accordance with his or her official duties.
  133         (8) This section only applies to such photographs and video
  134  and audio recordings held by an agency as defined in s. 119.011.
  135         (9)This section is subject to the Open Government Sunset
  136  Review Act in accordance with s. 119.15 and shall stand repealed
  137  on October 2, 2023, unless reviewed and saved from repeal
  138  through reenactment by the Legislature.
  139         Section 2. (1)The Legislature finds that it is a public
  140  necessity that photographs and video and audio recordings that
  141  depict or record the killing of a person be made confidential
  142  and exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  143  Art. I of the State Constitution. The Legislature finds that
  144  photographs and video and audio recordings that depict or record
  145  the killing of a person render a graphic and often disturbing
  146  visual or aural representation of the deceased. Such photographs
  147  and video and audio recordings provide a view of the deceased in
  148  the final moments of life, often bruised, bloodied, broken, with
  149  bullet wounds or other wounds, cut open, dismembered, or
  150  decapitated. As such, photographs and video and audio recordings
  151  that depict or record the killing of a person are highly
  152  sensitive representations of the deceased which, if heard,
  153  viewed, copied, or publicized, could result in trauma, sorrow,
  154  humiliation, or emotional injury to the immediate family of the
  155  deceased and detract from the memory of the deceased. The
  156  Legislature recognizes that the existence of the Internet and
  157  the proliferation of personal computers and cellular telephones
  158  throughout the world encourage and promote the wide
  159  dissemination of such photographs and video and audio recordings
  160  and that widespread unauthorized dissemination of such
  161  photographs and video and audio recordings would subject the
  162  immediate family of the deceased to continuous injury.
  163         (2)In addition to the emotional and mental injury that
  164  these photographs and recordings may cause family members, the
  165  Legislature is also concerned that dissemination of photographs
  166  and video and audio recordings that depict or record the killing
  167  of a person is harmful to the public. The Legislature is gravely
  168  concerned and saddened by the horrific mass killings perpetrated
  169  at the Pulse nightclub in Orlando and the Fort Lauderdale
  170  Hollywood International Airport. The Legislature is concerned
  171  that, if these photographs and recordings are released,
  172  terrorists will use them to attract followers, bring attention
  173  to their causes, and inspire others to kill. The Legislature
  174  also finds that dissemination of these photographs and
  175  recordings may also educe violent acts by the mentally ill or
  176  morally corrupt.
  177         (3)The Legislature further recognizes that there continues
  178  to be other types of available information, such as crime scene
  179  reports, which are less intrusive and injurious to the immediate
  180  family of the deceased and which continue to provide for public
  181  oversight. The Legislature further finds that the exemption
  182  provided in this act should be given retroactive application
  183  because it is remedial in nature.
  184         Section 3. This act shall take effect October 1, 2018.