Senate Bill sb0494

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    Florida Senate - 2002                                   SB 494

    By Senators Brown-Waite and Smith





    10-641-02

  1                      A bill to be entitled

  2         An act relating to public records; amending s.

  3         119.07, F.S.; authorizing a delay in inspection

  4         or copying of a public record under limited

  5         circumstances; establishing procedures and

  6         standards; limiting the applicability of the

  7         provision; providing a statement of public

  8         necessity; providing an effective date.

  9

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

11

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

13  119.07, Florida Statutes, is amended to read:

14         119.07  Inspection, examination, and duplication of

15  records; exemptions.--

16         (3)

17         (b)1.  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.

21         2.a.  Except for an arrest record or a record of first

22  appearance, upon the request of the Florida Department of Law

23  Enforcement which meets the requirements of this section, an

24  agency that is the custodian of a public record shall delay

25  the inspection or copying of that public record for up to 7

26  days if the executive director of the department or his or her

27  designee certifies in writing:

28         (I)  The specific public record for which inspection or

29  copying is to be delayed;

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    Florida Senate - 2002                                   SB 494
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  1         (II)  That the record is necessary for an investigation

  2  related to the threat of an act of terrorism as defined in s.

  3  775.30;

  4         (III)  That the specified public record is part of

  5  active criminal-intelligence information or active

  6  criminal-investigative information related to the threatened

  7  act of terrorism;

  8         (IV)  That inspection or copying of the specified

  9  public record would jeopardize the ability of law enforcement

10  to prevent or reduce the threat of an act of terrorism;

11         (V)  The specific time period during which inspection

12  or copying is to be delayed;

13         (VI)  That the department will file a petition in

14  circuit court within 24 hours after submitting the written

15  request to the custodian of the record; and

16         (VII)  That the request is made pursuant to this

17  paragraph.

18         b.  The department shall, within 24 hours after

19  submitting the written certification with the agency that is

20  the custodian of the record, file with the circuit court

21  having jurisdiction in the district in which the custodial

22  agency has its head office, a petition to delay inspection or

23  copying of the public record. Upon review of the request in

24  camera, the court may issue an order delaying inspection or

25  copying of the record identified in the petition if the law

26  enforcement agency establishes by substantial competent

27  evidence that:

28         (I)  There is a viable threat of an act of terrorism as

29  defined by s. 775.30.

30         (II)  The public record identified by the department

31  constitutes active criminal-intelligence information or active

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    Florida Senate - 2002                                   SB 494
    10-641-02




  1  criminal-investigative information related to that threatened

  2  act of terrorism.

  3         (III)  Inspection or copying of the specified public

  4  record would jeopardize the ability of law enforcement

  5  agencies to prevent or reduce the threatened act of terrorism;

  6  and

  7         (IV)  The department has complied with the requirements

  8  of sub-subparagraph a.

  9

10  Upon making such a determination, the court may order the

11  custodial agency to delay inspection or copying of the public

12  record until the expiration of the 7 days or upon the

13  expiration of any extension of that period.

14         c.  Unless the court rules against the petition, the

15  agency to which the request is made may not permit the

16  specified public record to be inspected or copied, nor may it

17  release the public record specifically requested in any form

18  or as part of a more comprehensive request for information

19  during the period specified for delay, unless that record is

20  an arrest record or a record of first appearance, which is not

21  to exceed 7 days except as otherwise provided in this section.

22         d.  If, before the expiration of the period specified

23  for delay or the expiration of the 7-day period, whichever

24  applies, a request to inspect or copy that public record is

25  received and, upon the refusal of the custodian to release the

26  record, an action is filed to inspect or copy the record, the

27  provisions of sub-subparagraph f. and s. 119.11 apply.

28         e.  In order to extend the period during which

29  inspection and copying of a public record is delayed, the

30  department must apply to the court for an extension before the

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    Florida Senate - 2002                                   SB 494
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  1  expiration of the period specified for delay or the 7-day

  2  period, whichever applies.

  3         f.  Upon a review of the request in camera, the court

  4  may extend the period during which inspection and copying of a

  5  public record may be delayed for an additional 14 days if the

  6  law enforcement agency establishes by substantial competent

  7  evidence that:

  8         (I)  There is a viable threat of an act of terror;

  9         (II)  The public record identified by the law

10  enforcement agency constitutes active criminal-intelligence

11  information or active criminal-investigative information

12  related to that threatened act of terrorism;

13         (III)  Inspection or copying of the specified public

14  record would jeopardize the ability of law enforcement to

15  prevent or reduce the threatened act of terrorism; and

16         (IV)  The law enforcement agency has complied with the

17  requirements of sub-subparagraphs 2.a. and b.

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19  Upon making such a determination, the court may order the

20  custodial agency to delay inspection or copying of the public

21  record until the expiration of the 14 days. This subparagraph

22  shall stand repealed October 2, 2003, unless reviewed and

23  saved from repeal through reenactment by the Legislature.

24         Section 2.  The Legislature finds that delay in the

25  ability to inspect or copy a public record provided by this

26  act is a public necessity because of the great potential for

27  harm to the public which exists in this era as a result of

28  terrorism. An act of terrorism may come in an entirely unusual

29  form and terrorists may use unexpected and unconventional

30  methods. The potential for acts of terror performed in

31  unthinkable ways was made amply evident by the events of

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  1  September 11, 2001. Individuals who resided, worked, and

  2  attended flying school in this state commandeered planes,

  3  murdered those on board who attempted to stop them, and then

  4  intentionally crashed those planes into the Pentagon and the

  5  World Trade Center, completely destroying the two main towers

  6  and surrounding structures. These acts of terror resulted in

  7  the deaths of approximately 6,000 persons. In addition, since

  8  that date, spores of anthrax have been purposefully

  9  distributed by persons yet unknown in Washington, D.C., other

10  states, and communities within this state, in order to spread

11  disease and cause death. As of this date, at least one

12  Floridian has died because of anthrax, and other Floridians

13  are being treated for the illness. Prior to these events,

14  these methods of spreading destruction, death, and mayhem were

15  unthinkable. The Legislature notes that, given the willingness

16  of terrorists to die in the performance of acts of terror, it

17  may not be able to foresee the manner or method in which an

18  act of terrorism might be performed or the public information

19  that could be used to facilitate or plan it. The Legislature,

20  therefore, cannot foresee every public record that it must

21  make confidential pursuant to its authority under s. 24(a),

22  Art. I of the State Constitution, in order to stop acts of

23  terror. Given the capabilities of modern-day terrorists, as

24  evidenced by the acts of September 11, 2001, and the potential

25  that even more serious acts of terrorism could be perpetrated,

26  the Legislature explicitly finds that state law enforcement

27  investigations of acts of terrorism are of the highest

28  priority and that there may be instances, which are yet

29  unknown and unidentifiable, when the ability to inspect or

30  copy a public record could jeopardize such an investigation by

31  making the subjects of such investigations aware that an

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    Florida Senate - 2002                                   SB 494
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  1  investigation is active. If it is discovered that an act of

  2  terrorism is being investigated, the perpetrators may speed up

  3  the timetable for the performance of the activity, as well as

  4  flee, destroy evidence, or evade prosecution. As the danger

  5  posed to the public is so extreme, and as it may become

  6  imperative at times to temporarily delay access to specified

  7  public records in order to prevent the imminent commission of

  8  an act of terrorism, the Legislature finds that the procedures

  9  provided in this act to temporarily delay inspection or

10  copying of specific public records that are part of an

11  investigation into a potential act of terrorism are reasonable

12  and in the best interests of the safety of the public. As a

13  result, the Legislature finds that there is substantial

14  justification and public necessity for permitting the head of

15  a law enforcement agency to request a delay in the inspection

16  or copying of a public record under the limited circumstances

17  and procedures set forth in this act.

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

19  law.

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21            *****************************************

22                          SENATE SUMMARY

23    Provides process by which the Department of Law
      Enforcement may advise another agency to delay access to
24    a public record for a 7-day period. Establishes standards
      that the department must comply with in order to initiate
25    the process. Limits process to investigations related to
      terrorism. Permits a 14-day extension upon court order.
26    Establishes elements that the department must prove in
      order to obtain extension. Provides for an in camera
27    hearing. Contains a statement of public necessity.

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