The Florida Senate

27.7081  Capital postconviction public records production.--

(1)  As used in this section, the term "trial court" means:

(a)  The judge who entered the judgment and imposed the sentence of death; or

(b)  If a motion for postconviction relief in a capital case has been filed and a different judge has already been assigned to that motion, the judge who is assigned to rule on that motion.

(2)  The Secretary of State shall establish and maintain a records repository for the purpose of archiving capital postconviction public records as provided for in this section.

(3)(a)  Upon imposition of a death sentence or upon the effective date of this act with respect to any case in which a death sentence has been imposed but the mandate has not yet been issued in an appeal affirming the sentence, the prosecuting attorney shall promptly provide written notification to each law enforcement agency involved in the case and to the Department of Corrections. If available, the written notification must include the defendant's date of birth, sex, race, and police-case numbers included in the prosecuting attorney's case file.

(b)  Within 60 days after receipt of notification, each law enforcement agency involved in the case and the prosecuting attorney who prosecuted the case shall copy, seal, and deliver to the repository all public records, except for those filed in the trial court, which were produced in the investigation or prosecution of the case or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried. Each agency shall bear the costs of its own compliance.

(c)  Within 60 days after notification, the Department of Corrections shall copy, seal, and deliver to the repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried all public records determined by the department to be relevant to the subject matter of a capital postconviction claim of the person sentenced to death and where such production would not be unduly burdensome for the department. The department shall bear the costs.

(4)(a)  The chief law enforcement officer of each law enforcement agency that was involved in the case, whether through an investigation, arrest, prosecution, or incarceration, shall notify the Attorney General upon compliance with subsection (3) and shall certify that to the best of his or her knowledge and belief all public records in possession of the agency or in possession of any employee of the agency have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section.

(b)  The prosecuting attorney who prosecuted the case shall provide written notification to the Attorney General upon compliance with subsection (3) and shall certify that to the best of his or her knowledge and belief all public records in his or her possession have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section.

(c)  The Secretary of Corrections shall provide written notification to the Attorney General upon compliance with paragraph (3)(c) and shall certify that to the best of his or her knowledge and belief all public records in the department's possession have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section.

(5)(a)  Within 60 days after the imposition of a death sentence or upon the effective date of this act with respect to any case in which a death sentence has been imposed but the mandate has not yet been issued in an appeal affirming the sentence, both the public defender or private counsel for the defendant and the prosecuting attorney involved in the case shall provide written notification to the Attorney General of the name and address of any person or agency in addition to those persons and agencies listed in subsection (3) which may have information pertinent to the case unless previously provided to the capital collateral regional counsel or postconviction private counsel. The Attorney General shall promptly provide written notification to each identified person or agency after receiving the information from the public defender, private counsel for the defendant, or prosecuting attorney and shall request that all public records in the possession of the person or agency which pertain to the case be copied, sealed, and delivered to the records repository.

(b)  Within 60 days after receiving a request for public records under paragraph (a), the person or agency shall provide written notification to the Attorney General of compliance with this subsection and shall certify that to the best of his or her knowledge and belief all public records requested have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried.

(6)(a)  Any public record under this section which is confidential or exempt from the requirements of s. 119.07(1) and s. 24(a), Art. I of the State Constitution must be separately boxed, without being redacted, and sealed. The box must be delivered to the clerk of court in the county in which the capital case was tried. The outside of the box must clearly identify the public records as exempt, and the seal may not be broken without an order of the trial court. The outside of the box must identify the nature of the public records and the legal basis under which the public records are exempt.

(b)  Such a box may be opened only for an inspection by the trial court in camera and only after notice giving the agency the option to have a representative present at the unsealing by the court.

(7)(a)  Within 180 days after a capital collateral regional counsel or private counsel is appointed to represent a defendant sentenced to death, or within 30 days after issuance of the Florida Supreme Court's mandate affirming a death sentence, whichever is later, the regional counsel, private counsel, or other counsel who is a member of The Florida Bar and is authorized by such counsel representing a defendant may send a written demand for additional public records to each person or agency submitting public records under subsection (3) and to each person or agency identified as having information pertinent to the case under subsection (5). Should the written demand include requests for records associated with particular named individuals, the written demand shall also include a brief statement describing each named person's role in the case and relationship to the defendant. Race, sex, and date of birth shall also be included in the demand if the public defender, private counsel, or capital collateral regional counsel has such information. Each person or agency notified under this subsection shall, within 60 days after receipt of the written demand, deliver to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried any additional public records in the possession of the person or agency which pertain to the case and shall certify that to the best of his or her knowledge and belief all additional public records have been delivered or, if no additional public records are found, shall recertify that the public records previously delivered are complete.

(b)  Within 25 days after receiving the written demand, the agency or person may file an objection in the trial court alleging that the request is overly broad or unduly burdensome. Within 30 days after the filing of an objection, the trial court shall hold a hearing and order an agency or person to produce additional public records if it finds each of the following:

1.  The regional counsel or private counsel has made a timely and diligent search as provided in this section.

2.  The regional or private counsel's written demand identifies, with specificity, those additional public records that are not at the repository.

3.  The additional public records sought are relevant to the subject matter of a capital postconviction relief or appear reasonably calculated to lead to the discovery of admissible evidence in prosecuting such claim.

4.  The additional public records request is not overbroad or unduly burdensome.

(c)  This statute shall not be a basis for renewing requests that have been initiated previously or for relitigating issues pertaining to production of public records upon which a court has ruled.

(d)  If, on October 1, 1998, the defendant had a Rule 3.850 motion denied and no Rule 3.850 motion was pending, no additional requests shall be made by capital collateral regional counsel or contracted private counsel until a death warrant is signed by the Governor and an execution is scheduled. Within 10 days of the signing of the death warrant, capital collateral regional counsel or contracted private counsel may request of a person or agency that the defendant has previously requested to produce records any records previously requested to which no objection was raised or sustained, but which the agency has received or produced since the previous request or which for any reason the agency has in its possession and did not produce within 10 days of the receipt of the previous notice or such shorter time period ordered by the court to comply with the time for the scheduled execution. The person or agency shall produce the record or shall file in the trial court an affidavit stating that it does not have the requested record or that the record has been produced previously.

(8)(a)  After production of additional public records or recertification as provided in subsection (7), the regional counsel or the private counsel is prohibited from making any further public records requests under this chapter. An agency is not required to produce additional public records except by court order as provided in this subsection.

(b)  In order to obtain additional public records beyond those provided under subsection (7), the regional counsel, private counsel, or other counsel who is a member of The Florida Bar and is authorized by the regional counsel or private counsel shall file an affidavit in the trial court which attests that he or she has made a timely and diligent search of the records repository and specifically identifies those additional public records that are not at the repository and are relevant to the subject matter of a capital postconviction claim or are reasonably calculated to lead to the discovery of admissible evidence in the prosecution of such claim. The affiant shall provide a copy of the affidavit to all affected agencies upon the filing of such affidavit in the trial court.

(c)  Within 15 days after the filing of an affidavit, the trial court shall order an agency to produce additional public records only if it finds each of the following:

1.  The regional counsel or private counsel has made a timely and diligent search as provided in this section.

2.  The regional or private counsel's affidavit identifies, with specificity, those additional public records that are not at the repository.

3.  The additional public records sought are relevant to the subject matter of a claim for capital postconviction relief or appear reasonably calculated to lead to the discovery of admissible evidence in prosecuting such claim.

4.  The additional public records request is not overbroad or unduly burdensome.

(9)  The Secretary of State shall provide the personnel, supplies, and any necessary equipment used by the capital collateral regional counsel or private counsel to copy records held at the records repository.

(10)  The trial court shall resolve any dispute that arises under this section, unless the appellate court has exclusive jurisdiction.

(11)  The capital collateral regional counsel or private counsel shall not solicit another person to make a request for public records on behalf of the regional counsel or private counsel. The trial court shall impose appropriate sanctions against any regional counsel or private counsel found in violation of this subsection.

(12)  Sixty days after a capital sentence is carried out, 60 days after a defendant is released from incarceration following the granting of a pardon or reversal of the sentence, or 60 days after the defendant has been resentenced to a term of years, the Attorney General shall provide written notification to the Secretary of State, who may then destroy the records held by the records repository which pertain to that case.

(13)  This section pertains only to the production of records for capital postconviction defendants and does not change or alter any time limitations provided by law governing capital postconviction claims and actions. Furthermore, this section does not affect, expand, or limit the production of public records for any purposes other than use in a capital postconviction proceeding. Nothing in this section constitutes grounds to expand the time limitations or allow any pleading in violation of chapter 924 or to stay an execution or death warrant.

History.--s. 1, ch. 98-198; s. 3, ch. 2000-3; s. 39, ch. 2005-251.

Note.--Former s. 119.19.