Senate Bill 2112c1

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    Florida Senate - 2000                           CS for SB 2112

    By the Committee on Criminal Justice and Senator Brown-Waite





    307-2174-00

  1                      A bill to be entitled

  2         An act relating to public-records exemptions;

  3         amending ss. 119.011, 119.07, F.S.; providing

  4         that certain records and information that would

  5         otherwise be exempt from public disclosure

  6         cease to be exempt a specified period after a

  7         sentence of death is imposed; providing a

  8         contingent effective date.

  9

10  Be It Enacted by the Legislature of the State of Florida:

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12         Section 1.  Paragraph (d) of subsection (3) of section

13  119.011, Florida Statutes, is amended to read:

14         119.011  Definitions.--For the purpose of this chapter:

15         (3)

16         (d)1.  The word "active" shall have the following

17  meaning:

18         a.1.  Criminal intelligence information shall be

19  considered "active" as long as it is related to intelligence

20  gathering conducted with a reasonable, good faith belief that

21  it will lead to detection of ongoing or reasonably anticipated

22  criminal activities.

23         b.2.  Criminal investigative information shall be

24  considered "active" as long as it is related to an ongoing

25  investigation which is continuing with a reasonable, good

26  faith anticipation of securing an arrest or prosecution in the

27  foreseeable future.

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29  In addition, except as provided in subparagraph 2., criminal

30  intelligence and criminal investigative information shall be

31  considered "active" while such information is directly related

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    Florida Senate - 2000                           CS for SB 2112
    307-2174-00




  1  to pending prosecutions or appeals. The word "active" shall

  2  not apply to information in cases which are barred from

  3  prosecution under the provisions of s. 775.15 or other statute

  4  of limitation.

  5         2.  Criminal intelligence and criminal investigative

  6  information in a capital case shall not be considered "active"

  7  15 days after a sentence of death is imposed except for any

  8  portion of such information that remains "active" under

  9  sub-subparagraph 1.a. or sub-subparagraph 1.b. or relates to a

10  pending criminal trial in which judgment has not yet been

11  entered.

12         Section 2.  Paragraphs (b) and (l) of subsection (3) of

13  section 119.07, Florida Statutes, are amended to read:

14         119.07  Inspection, examination, and duplication of

15  records; exemptions.--

16         (3)

17         (b)  Active criminal intelligence information and

18  active criminal investigative information are exempt from the

19  provisions of subsection (1) and s. 24(a), Art. I of the State

20  Constitution. Such information ceases to be exempt in a

21  capital case 15 days after a sentence of death is imposed.

22         (l)1.  A public record which was prepared by an agency

23  attorney (including an attorney employed or retained by the

24  agency or employed or retained by another public officer or

25  agency to protect or represent the interests of the agency

26  having custody of the record) or prepared at the attorney's

27  express direction, which reflects a mental impression,

28  conclusion, litigation strategy, or legal theory of the

29  attorney or the agency, and which was prepared exclusively for

30  civil or criminal litigation or for adversarial administrative

31  proceedings, or which was prepared in anticipation of imminent

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    Florida Senate - 2000                           CS for SB 2112
    307-2174-00




  1  civil or criminal litigation or imminent adversarial

  2  administrative proceedings, is exempt from the provisions of

  3  subsection (1) and s. 24(a), Art. I of the State Constitution

  4  until the conclusion of the litigation or adversarial

  5  administrative proceedings. Such records cease to be exempt in

  6  a capital case 15 days after a sentence of death is imposed,

  7  except that, for purposes of capital collateral litigation as

  8  set forth in s. 27.7001, the Attorney General's office is

  9  entitled to claim this exemption for those public records

10  prepared for direct appeal as well as for all capital

11  collateral litigation after direct appeal until execution of

12  sentence or imposition of a life sentence.

13         2.  This exemption is not waived by the release of such

14  public record to another public employee or officer of the

15  same agency or any person consulted by the agency attorney.

16  When asserting the right to withhold a public record pursuant

17  to this paragraph, the agency shall identify the potential

18  parties to any such criminal or civil litigation or

19  adversarial administrative proceedings.  If a court finds that

20  the document or other record has been improperly withheld

21  under this paragraph, the party seeking access to such

22  document or record shall be awarded reasonable attorney's fees

23  and costs in addition to any other remedy ordered by the

24  court.

25         Section 3.  This act shall take effect upon the

26  effective date of rules adopted by the Supreme Court which

27  provide for the appointment of collateral counsel within a

28  specified period after the date a sentence of death is imposed

29  and which provide for public-records production during the

30  pendency of the direct appeal in capital cases.

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    Florida Senate - 2000                           CS for SB 2112
    307-2174-00




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 2112

  3

  4  -     Revises public records exemptions in sections
          119.011(3)(d)(2), 119.07(3)(b), and 119.07(3)(l), F.S.
  5        These changes are designed to make the public records
          exemptions expire 15 days after a sentence of death is
  6        imposed. The intended effect is to disclose records and
          thereby allow postconviction counsel to access records
  7        in a death case when it is on direct appeal.

  8  -     Provides an exception for any portion of such
          information that remains "active" as part of an ongoing
  9        criminal intelligence and ongoing criminal investigation
          or which relates to a pending criminal trail in which
10        judgment has not yet been entered.

11  -     Provides an effective date contingent on the adoption of
          specified Supreme Court rules.
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