House Bill hb1083e1

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                                          HB 1083, First Engrossed



  1                      A bill to be entitled

  2         An act relating to public records; providing an

  3         exemption from the public records law for

  4         photographs and video and audio recordings of

  5         an autopsy; providing an exemption for certain

  6         members of the immediate family, or a

  7         representative thereof, or a state or federal

  8         agency; prohibiting the custodian of a

  9         photograph or video or audio recording of an

10         autopsy from permitting any person to view or

11         duplicate a photograph or video or audio,

12         except pursuant to court order and under the

13         direct supervision of the custodian or his or

14         her designee; exempting criminal and

15         administrative proceedings from the act;

16         requiring certain persons to be parties in a

17         request for access to a photograph or video or

18         audio recording of an autopsy; providing

19         penalties; providing for future legislative

20         review and repeal; providing a finding of

21         public necessity; providing a retroactive

22         effective date.

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

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26         Section 1.  (1)  A photograph or video or audio

27  recording of an autopsy in the custody of a medical examiner

28  is confidential and exempt from the requirements of section

29  119.07(1) and s. 24(a), Art. I of the State Constitution,

30  except that a surviving spouse may view and copy a photograph

31  or video or listen to or copy an audio recording of the


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                                          HB 1083, First Engrossed



  1  deceased spouse's autopsy. If there is no surviving spouse,

  2  then the surviving parents shall have access to such records.

  3  If there is no surviving spouse or parent, then an adult child

  4  shall have access to such records. A local governmental

  5  entity, or a state or federal agency, in furtherance of its

  6  official duties, pursuant to a written request, may view or

  7  copy a photograph or video or may listen to or copy an audio

  8  recording of an autopsy, and unless otherwise required in the

  9  performance of their duties, the identity of the deceased

10  shall remain confidential and exempt. The custodian of the

11  record, or his or her designee, may not permit any other

12  person to view or copy such photograph or video recording or

13  listen to or copy an audio recording without a court order.

14  For the purposes of this section, the term "medical examiner"

15  means any district medical examiner, associate medical

16  examiner, or substitute medical examiner acting pursuant to

17  ch. 406, as well as any employee, deputy, or agent of a

18  medical examiner or any other person who may obtain possession

19  of a photograph or audio or video recording of an autopsy in

20  the course of assisting a medical examiner in the performance

21  of his or her official duties.

22         (2)(a)  The court, upon a showing of good cause, may

23  issue an order authorizing any person to view or copy a

24  photograph or video recording of an autopsy or to listen to or

25  copy an audio recording of an autopsy and may prescribe any

26  restrictions or stipulations that the court deems appropriate.

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28  In determining good cause, the court shall consider whether

29  such disclosure is necessary for the public evaluation of

30  governmental performance; the seriousness of the intrusion

31  into the family's right to privacy and whether such disclosure


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                                          HB 1083, First Engrossed



  1  is the least intrusive means available; and the availability

  2  of similar information in other public records, regardless of

  3  form. In all cases, the viewing, copying, listening to or

  4  other handling of a photograph or video or audio recording of

  5  an autopsy must be under the direct supervision of the

  6  custodian of the record or his or her designee.

  7         (2)(b)  A surviving spouse shall be given reasonable

  8  notice of a petition filed with the court to view or copy a

  9  photograph or video recording of an autopsy or a petition to

10  listen to or copy an audio recording, a copy of such petition,

11  and reasonable notice of the opportunity to be present and

12  heard at any hearing on the matter. If there is no surviving

13  spouse, then such notice must be given to the deceased's

14  parents, and if the deceased has no living parent, then to the

15  adult children of the deceased.

16         (3)(a)  Any custodian of a photograph or video or audio

17  recording of an autopsy who willfully and knowingly violates

18  this section commits a felony of the third degree, punishable

19  as provided in section 775.082, section 775.083, or section

20  775.084, Florida Statutes.

21         (b)  Any person who willfully and knowingly violates a

22  court order issued pursuant to this section commits a felony

23  of the third degree, punishable as provided in section

24  775.082, section 775.083, or section 775.084, Florida

25  Statutes.

26         (c)  A criminal or administrative proceeding is exempt

27  from this section, but unless otherwise exempted, is subject

28  to all other provisions of Chapter 119, Florida Statutes,

29  provided however that this section does not prohibit a court

30  in a criminal or administrative proceeding upon good cause

31  shown from restricting or otherwise controlling the disclosure


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                                          HB 1083, First Engrossed



  1  of an autopsy, crime-scene, or similar photograph or video or

  2  audio recordings in the manner prescribed herein. 

  3         (4)  This exemption shall be given retroactive

  4  application.

  5         (5)  The exemption in this section is subject to the

  6  Open Government Sunset Review Act of 1995 in accordance with

  7  section 119.15, Florida Statutes, and shall stand repealed on

  8  October 2, 2006, unless reviewed and saved from repeal through

  9  reenactment by the Legislature.

10         Section 2.  The Legislature finds that it is a public

11  necessity that photographs and video and audio recordings of

12  an autopsy be made confidential and exempt from the

13  requirements of section 119.07(1), Florida Statutes, and

14  Section 24(a) of Article I of the State Constitution. The

15  Legislature finds that photographs or video or audio

16  recordings of an autopsy depict or describe the deceased in

17  graphic and often disturbing fashion. Such photographs or

18  video or audio recordings may depict or describe the deceased

19  nude, bruised, bloodied, broken, with bullet or other wounds,

20  cut open, dismembered, or decapitated. As such, photographs or

21  video or audio recordings of an autopsy are highly sensitive

22  depictions or descriptions of the deceased which, if heard,

23  viewed, copied or publicized, could result in trauma, sorrow,

24  humiliation, or emotional injury to the immediate family of

25  the deceased, as well as injury to the memory of the deceased.

26  The Legislature notes that the existence of the World Wide Web

27  and the proliferation of personal computers throughout the

28  world encourages and promotes the wide dissemination of

29  photographs and video and audio recordings 24 hours a day and

30  that widespread unauthorized dissemination of autopsy

31  photographs and video and audio recordings would subject the


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                                          HB 1083, First Engrossed



  1  immediate family of the deceased to continuous injury. The

  2  Legislature further notes that there continue to be other

  3  types of available information, such as the autopsy report,

  4  which are less intrusive and injurious to the immediate family

  5  members of the deceased and which continue to provide for

  6  public oversight. The Legislature further finds that the

  7  exemption provided in this act should be given retroactive

  8  application because it is remedial in nature.

  9         Section 3.  This act shall take effect upon becoming a

10  law, and shall apply to all photographs or video or audio

11  recordings of an autopsy, regardless of whether the autopsy

12  was performed before or after the effective date of the act.

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