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15 repealed; providing a short title; amending s.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.