Florida Senate - 2023                              CS for SB 404
       
       
        
       By the Committee on Rules; and Senator Perry
       
       
       
       
       
       595-02898-23                                           2023404c1
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         119.071, F.S.; defining the term “killing of a minor”;
    4         expanding an existing exemption from public records
    5         requirements for certain photographs or video or audio
    6         recordings held by an agency to include photographs
    7         and video and audio recordings held by an agency which
    8         depict or record the killing of a minor, with
    9         exceptions; providing construction; conforming
   10         provisions to changes made by the act; providing
   11         criminal penalties; providing for retroactive
   12         application; providing for future legislative review
   13         and repeal of the exemption; providing for the
   14         reversion of certain provisions if the exemption is
   15         repealed; providing a short title; amending s.
   16         406.135, F.S.; revising the definition of the term
   17         “medical examiner”; defining the term “minor”;
   18         creating an exemption from public records requirements
   19         for autopsy reports of minors whose deaths were
   20         related to acts of domestic violence; providing
   21         exceptions; requiring that any viewing, copying, or
   22         other handling of such autopsy reports be under the
   23         direct supervision of the custodian of the record or
   24         his or her designee; requiring that certain surviving
   25         parents of a minor whose death was related to an act
   26         of domestic violence be given notice of petitions to
   27         view or copy the minor’s autopsy report and the
   28         opportunity to be present and heard at related
   29         hearings under certain circumstances; providing
   30         criminal penalties; providing construction; providing
   31         for retroactive application; providing for future
   32         legislative review and repeal of the exemption;
   33         providing statements of public necessity; providing an
   34         effective date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Paragraph (p) of subsection (2) of section
   39  119.071, Florida Statutes, is amended to read:
   40         119.071 General exemptions from inspection or copying of
   41  public records.—
   42         (2) AGENCY INVESTIGATIONS.—
   43         (p)1. As used in this paragraph, the term:
   44         a. “Killing of a law enforcement officer who was acting in
   45  accordance with his or her official duties” means all acts or
   46  events that cause or otherwise relate to the death of a law
   47  enforcement officer who was acting in accordance with his or her
   48  official duties, including any related acts or events
   49  immediately preceding or subsequent to the acts or events that
   50  were the proximate cause of death.
   51         b. “Killing of a minor” means all acts or events that cause
   52  or otherwise relate to the death of a victim who has not yet
   53  reached 18 years of age at the time of death, including any
   54  related acts or events immediately preceding or subsequent to
   55  the acts or events that were the proximate cause of the death of
   56  a victim younger than 18 years of age; events that depict a
   57  victim younger than 18 years of age being killed; or events that
   58  depict the body of a victim younger than 18 years of age who has
   59  been killed.
   60         c. “Killing of a victim of mass violence” means events that
   61  depict either a victim being killed or the body of a victim
   62  killed in an incident in which three or more persons, not
   63  including the perpetrator, are killed by the perpetrator of an
   64  intentional act of violence.
   65         2. A photograph or video or audio recording that depicts or
   66  records the killing of a law enforcement officer who was acting
   67  in accordance with his or her official duties, the killing of a
   68  minor, or the killing of a victim of mass violence is
   69  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   70  of the State Constitution, except that a surviving spouse of the
   71  decedent may view and copy any such photograph or video
   72  recording or listen to or copy any such audio recording. If
   73  there is no surviving spouse, the surviving parents shall have
   74  access to such records. If there is no surviving spouse or
   75  parent, the adult children shall have access to such records.
   76  Nothing in this paragraph precludes a surviving spouse, parent,
   77  or adult child of the victim from sharing or publicly releasing
   78  such photograph or video or audio recording.
   79         3.a. The deceased’s surviving relative, with whom authority
   80  rests to obtain such records, may designate in writing an agent
   81  to obtain such records.
   82         b. A local governmental entity, or a state or federal
   83  agency, in furtherance of its official duties, pursuant to a
   84  written request, may view or copy a photograph or video
   85  recording or may listen to or copy an audio recording of the
   86  killing of a law enforcement officer who was acting in
   87  accordance with his or her official duties, the killing of a
   88  minor, or the killing of a victim of mass violence, and, unless
   89  otherwise required in the performance of its duties, the
   90  identity of the deceased shall remain confidential and exempt.
   91         c. The custodian of the record, or his or her designee, may
   92  not permit any other person to view or copy such photograph or
   93  video recording or listen to or copy such audio recording
   94  without a court order.
   95         4.a. The court, upon a showing of good cause, may issue an
   96  order authorizing any person to view or copy a photograph or
   97  video recording that depicts or records the killing of a law
   98  enforcement officer who was acting in accordance with his or her
   99  official duties, the killing of a minor, or the killing of a
  100  victim of mass violence, or to listen to or copy an audio
  101  recording that depicts or records the killing of a law
  102  enforcement officer who was acting in accordance with his or her
  103  official duties, the killing of a minor, or the killing of a
  104  victim of mass violence, and may prescribe any restrictions or
  105  stipulations that the court deems appropriate.
  106         b. In determining good cause, the court shall consider:
  107         (I) Whether such disclosure is necessary for the public
  108  evaluation of governmental performance;
  109         (II) The seriousness of the intrusion into the family’s
  110  right to privacy and whether such disclosure is the least
  111  intrusive means available; and
  112         (III) The availability of similar information in other
  113  public records, regardless of form.
  114         c. In all cases, the viewing, copying, listening to, or
  115  other handling of a photograph or video or audio recording that
  116  depicts or records the killing of a law enforcement officer who
  117  was acting in accordance with his or her official duties, the
  118  killing of a minor, or the killing of a victim of mass violence
  119  must be under the direct supervision of the custodian of the
  120  record or his or her designee.
  121         5. A surviving spouse shall be given reasonable notice of a
  122  petition filed with the court to view or copy a photograph or
  123  video recording that depicts or records the killing of a law
  124  enforcement officer who was acting in accordance with his or her
  125  official duties, the killing of a minor, or the killing of a
  126  victim of mass violence, or to listen to or copy any such audio
  127  recording, a copy of such petition, and reasonable notice of the
  128  opportunity to be present and heard at any hearing on the
  129  matter. If there is no surviving spouse, such notice must be
  130  given to the parents of the deceased and, if the deceased has no
  131  surviving parent, to the adult children of the deceased.
  132         6.a. Any custodian of a photograph or video or audio
  133  recording that depicts or records the killing of a law
  134  enforcement officer who was acting in accordance with his or her
  135  official duties, the killing of a minor, or the killing of a
  136  victim of mass violence who willfully and knowingly violates
  137  this paragraph commits a felony of the third degree, punishable
  138  as provided in s. 775.082, s. 775.083, or s. 775.084.
  139         b. Any person who willfully and knowingly violates a court
  140  order issued pursuant to this paragraph commits a felony of the
  141  third degree, punishable as provided in s. 775.082, s. 775.083,
  142  or s. 775.084.
  143         c. A criminal or administrative proceeding is exempt from
  144  this paragraph but, unless otherwise exempted, is subject to all
  145  other provisions of chapter 119; however, this paragraph does
  146  not prohibit a court in a criminal or administrative proceeding
  147  upon good cause shown from restricting or otherwise controlling
  148  the disclosure of a killing, crime scene, or similar photograph
  149  or video or audio recording in the manner prescribed in this
  150  paragraph.
  151         7. The exemption in this paragraph shall be given
  152  retroactive application and shall apply to all photographs or
  153  video or audio recordings that depict or record the killing of a
  154  law enforcement officer who was acting in accordance with his or
  155  her official duties, the killing of a minor, or the killing of a
  156  victim of mass violence, regardless of whether the killing of
  157  the person occurred before, on, or after May 23, 2019. However,
  158  nothing in this paragraph is intended to, nor may be construed
  159  to, overturn or abrogate or alter any existing orders duly
  160  entered into by any court of this state, as of the effective
  161  date of this act, which restrict or limit access to any
  162  photographs or video or audio recordings that depict or record
  163  the killing of a law enforcement officer who was acting in
  164  accordance with his or her official duties, the killing of a
  165  minor, or the killing of a victim of mass violence.
  166         8. This paragraph applies only to such photographs and
  167  video and audio recordings held by an agency.
  168         9.a. This paragraph is subject to the Open Government
  169  Sunset Review Act in accordance with s. 119.15 and shall stand
  170  repealed on October 2, 2024, unless reviewed and saved from
  171  repeal through reenactment by the Legislature.
  172         b.The expansion of the public records exemption in this
  173  paragraph to prevent the public disclosure of a photograph or
  174  video or audio recording that depicts or records the killing of
  175  a minor is subject to the Open Government Sunset Review Act in
  176  accordance with s. 119.15 and shall stand repealed on October 2,
  177  2028, unless reviewed and saved from repeal through reenactment
  178  by the Legislature. If the expansion of the exemption is not
  179  saved from repeal, this paragraph shall revert to that in effect
  180  1 day before the effective date of this act, except that any
  181  amendments to this subsection other than by this act shall be
  182  preserved and continue to operate to the extent that such
  183  amendments are not dependent upon the portions of this
  184  subsection which expire pursuant to this paragraph.
  185         Section 2. Section 3 of this act may be cited as the “Rex
  186  and Brody Act.”
  187         Section 3. Section 406.135, Florida Statutes, is amended to
  188  read:
  189         406.135 Autopsies; confidentiality of photographs and video
  190  and audio recordings; confidentiality of reports of minor
  191  victims of domestic violence; exemption.—
  192         (1) As used in For the purpose of this section, the term:
  193         (a) “Medical examiner” means any district medical examiner,
  194  associate medical examiner, or substitute medical examiner
  195  acting pursuant to this chapter, as well as any employee,
  196  deputy, or agent of a medical examiner or any other person who
  197  may obtain possession of a report, photograph, or audio or video
  198  recording of an autopsy in the course of assisting a medical
  199  examiner in the performance of his or her official duties.
  200         (b)“Minor” means a person younger than 18 years of age who
  201  has not had the disability of nonage removed pursuant to s.
  202  743.01 or s. 743.015.
  203         (2)(a) A photograph or video or audio recording of an
  204  autopsy held by a medical examiner is confidential and exempt
  205  from s. 119.07(1) and s. 24(a), Art. I of the State
  206  Constitution, except that a surviving spouse may view and copy a
  207  photograph or video recording or listen to or copy an audio
  208  recording of the deceased spouse’s autopsy. If there is no
  209  surviving spouse, then the surviving parents shall have access
  210  to such records. If there is no surviving spouse or parent, then
  211  an adult child shall have access to such records.
  212         (b)An autopsy report of a minor whose death was related to
  213  an act of domestic violence as defined in s. 741.28 held by a
  214  medical examiner is confidential and exempt from s. 119.07(1)
  215  and s. 24(a), Art. I of the State Constitution, except that a
  216  surviving parent of the deceased minor may view and copy the
  217  report if the surviving parent did not commit the act of
  218  domestic violence which led to the minor’s death.
  219         (3)(a) The deceased’s surviving relative, with whom
  220  authority rests to obtain such records, may designate in writing
  221  an agent to obtain such records.
  222         (b) A local governmental entity, or a state or federal
  223  agency, in furtherance of its official duties, pursuant to a
  224  written request, may view or copy a photograph or video
  225  recording of an autopsy or a minor’s autopsy report or may
  226  listen to or copy an audio recording of an autopsy, and unless
  227  otherwise required in the performance of official their duties,
  228  the identity of the deceased shall remain confidential and
  229  exempt.
  230         (c) The custodian of the record, or his or her designee,
  231  may not permit any other person, except an agent designated in
  232  writing by the deceased’s surviving relative with whom authority
  233  rests to obtain such records, to view or copy such photograph,
  234  or video recording, or minor’s autopsy report or listen to or
  235  copy an audio recording without a court order.
  236         (4)(a) The court, upon a showing of good cause, may issue
  237  an order authorizing any person to view or copy a photograph or
  238  video recording of an autopsy or a minor’s autopsy report or to
  239  listen to or copy an audio recording of an autopsy and may
  240  prescribe any restrictions or stipulations that the court deems
  241  appropriate.
  242         (b) In determining good cause, the court shall consider
  243  whether such disclosure is necessary for the public evaluation
  244  of governmental performance; the seriousness of the intrusion
  245  into the family’s right to privacy and whether such disclosure
  246  is the least intrusive means available; and the availability of
  247  similar information in other public records, regardless of form.
  248         (c) In all cases, the viewing, copying, listening to, or
  249  other handling of a photograph or video or audio recording of an
  250  autopsy or a minor’s autopsy report must be under the direct
  251  supervision of the custodian of the record or his or her
  252  designee.
  253         (5)(a) A surviving spouse must shall be given reasonable
  254  notice of a petition filed with the court to view or copy a
  255  photograph or video recording of an autopsy or a petition to
  256  listen to or copy an audio recording, a copy of such petition,
  257  and reasonable notice of the opportunity to be present and heard
  258  at any hearing on the matter. If there is no surviving spouse,
  259  then such notice must be given to the parents of the deceased,
  260  and if there is the deceased has no living parent, then to the
  261  adult children of the deceased.
  262         (b)For an autopsy report of a minor whose death was
  263  related to an act of domestic violence as defined in s. 741.28,
  264  any surviving parent who did not commit the act of domestic
  265  violence which led to the minor’s death must be given reasonable
  266  notice of a petition filed with the court to view or copy the
  267  report, a copy of such petition, and reasonable notice of the
  268  opportunity to be present and heard at any hearing on the
  269  matter.
  270         (6)(a) Any custodian of a photograph or video or audio
  271  recording of an autopsy or a minor’s autopsy report who
  272  willfully and knowingly violates this section commits a felony
  273  of the third degree, punishable as provided in s. 775.082, s.
  274  775.083, or s. 775.084.
  275         (b) Any person who willfully and knowingly violates a court
  276  order issued pursuant to this section commits a felony of the
  277  third degree, punishable as provided in s. 775.082, s. 775.083,
  278  or s. 775.084.
  279         (7) A criminal or administrative proceeding is exempt from
  280  this section, but unless otherwise exempted, is subject to all
  281  other provisions of chapter 119 unless otherwise exempted.,
  282  provided however that This section does not prohibit a court in
  283  a criminal or administrative proceeding upon good cause shown
  284  from restricting or otherwise controlling the disclosure of an
  285  autopsy, crime scene, or similar report, photograph, or video or
  286  audio recording recordings in the manner prescribed herein.
  287         (8) The exemptions in this section This exemption shall be
  288  given retroactive application.
  289         (9)This section is subject to the Open Government Sunset
  290  Review Act in accordance with s. 119.15 and shall stand repealed
  291  on October 2, 2028, unless reviewed and saved from repeal
  292  through reenactment by the Legislature.
  293         Section 4. (1)(a)The Legislature finds that it is a public
  294  necessity that photographs and video and audio recordings that
  295  depict or record the killing of a minor be made confidential and
  296  exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  297  Article I of the State Constitution. The Legislature finds that
  298  photographs and video and audio recordings that depict or record
  299  the killing of a minor render a graphic and often disturbing
  300  visual or auditory representation of the deceased. Such
  301  photographs and video and audio recordings provide a view of the
  302  deceased in the final moments of life, in which they are often
  303  bruised, bloodied, broken, with bullet wounds or other wounds,
  304  lacerated, dismembered, or decapitated. As such, photographs and
  305  video and audio recordings that depict or record the killing of
  306  a minor are highly sensitive representations of the deceased
  307  which, if heard, viewed, copied, or publicized, could result in
  308  trauma, sorrow, humiliation, or emotional injury to the
  309  immediate family of the deceased and detract from the memory of
  310  the deceased. The Legislature recognizes that the existence of
  311  the Internet and the proliferation of personal computers and
  312  cellular telephones throughout the world encourages and promotes
  313  the wide dissemination of such photographs and video and audio
  314  recordings 24 hours a day and that widespread unauthorized
  315  dissemination of such photographs and video and audio recordings
  316  would subject the immediate family of the deceased to continuous
  317  injury.
  318         (b)In addition to the emotional and mental injury that
  319  these photographs and video and audio recordings may cause
  320  family members, the Legislature also finds that dissemination of
  321  photographs and video and audio recordings that depict or record
  322  the killing of a minor is harmful to the public. The Legislature
  323  is concerned that the release of these photographs and video and
  324  audio recordings may educe violent acts by persons who have a
  325  mental illness or who are morally corrupt.
  326         (c)The Legislature further finds that other types of
  327  information, such as crime scene reports, continue to be
  328  available which are less intrusive and injurious to the
  329  immediate family of the deceased and continue to provide for
  330  public oversight. The Legislature also finds that the exemption
  331  provided in this act should be given retroactive application
  332  because it is remedial in nature.
  333         (2)The Legislature finds that it is a public necessity
  334  that autopsy reports of minors whose deaths were related to acts
  335  of domestic violence be made confidential and exempt from s.
  336  119.07(1), Florida Statutes, and s. 24(a), Article I of the
  337  State Constitution. The Legislature finds that autopsy reports
  338  describe the deceased in a graphic and often disturbing fashion
  339  and that autopsy reports of minors whose deaths were related to
  340  acts of domestic violence may describe the deceased nude,
  341  bruised, bloodied, broken, with bullet or other wounds, cut
  342  open, dismembered, or decapitated. As such, these reports often
  343  contain highly sensitive descriptions of the deceased which, if
  344  heard, viewed, copied, or publicized, could result in trauma,
  345  sorrow, humiliation, or emotional injury to the immediate family
  346  and minor friends of the deceased, as well as injury to the
  347  memory of the deceased. The Legislature recognizes that the
  348  existence of the Internet and the proliferation of websites
  349  throughout the world encourages and promotes the wide
  350  dissemination of reports and publications 24 hours a day, and
  351  that widespread unauthorized dissemination of autopsy reports of
  352  minors whose deaths were related to acts of domestic violence
  353  would subject the immediate family and minor friends of the
  354  deceased to continuous injury. The Legislature further finds
  355  that the exemption provided in this act should be given
  356  retroactive application because it is remedial in nature.
  357         Section 5. This act shall take effect upon becoming a law.