Proposed Committee Substitute by the Committee on Criminal Justice

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A bill to be entitled

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An act relating to a review under the Open Government

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Sunset Review Act regarding victims; amending s. 119.071,

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F.S.; expanding the exemption for certain victim

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information by making it confidential and exempt from

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public record requirements; expanding the exemption to

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include crimes involving child pornography; creating

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exceptions to the public record exemption; providing for

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future legislative review of the exemption; reorganizing

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the exemption; providing a statement of public necessity;

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repealing s. 2 of Chapter 2003-157, Laws of Florida, which

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provides for repeal of the exemption; amending s. 92.56,

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F.S.; clarifying that the provisions apply to court

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proceedings; conforming the provisions to changes made in

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s. 119.071(2)(h), F.S.; amending s. 119.0714, F.S.;

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conforming the provisions to changes made in s.

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119.071(2)(h), F.S.; amending s. 794.03, F.S.; conforming

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the provisions to changes made in s. 119.071(2)(h), F.S.;

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providing an effective date.

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

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     Section 1.  Paragraph (h) of subsection (2) of section

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119.071, Florida Statutes, is amended to read:

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     119.071  General exemptions from inspection or copying of

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public records.--

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     (2)  AGENCY INVESTIGATIONS.--

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     (h)1. The following criminal intelligence information or

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criminal investigative information is confidential and exempt

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

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a. Any criminal intelligence information or criminal

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investigative information, including the photograph, name,

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address, or other fact, or information which reveals the identity

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of the victim of the crime of sexual battery as defined in

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chapter 794; the identity of the victim of a lewd or lascivious

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offense committed upon or in the presence of a person less than

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16 years of age, as defined in chapter 800; or the identity of

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the victim of the crime of child abuse as defined by chapter 827.

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and

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b. Any criminal intelligence information or criminal

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investigative information or other criminal record, including

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those portions of court records and court proceedings, which may

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reveal the identity of a person who is a victim of any sexual

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offense, including a sexual offense proscribed in chapter 794,

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chapter 800, or chapter 827, or chapter 847, is exempt from s.

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

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     c.2. In addition to subparagraph 1., any criminal

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intelligence information or criminal investigative information

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that is A photograph, videotape, or image of any part of the body

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of the victim of a sexual offense prohibited under chapter 794,

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chapter 800, or chapter 827, or chapter 847, regardless of

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whether the photograph, videotape, or image identifies the

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victim, is confidential and exempt from s. 119.07(1) and s.

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24(a), Art. I of the State Constitution.

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     2. Criminal investigative information and criminal

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intelligence information made confidential and exempt under this

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paragraph may be disclosed by a law enforcement agency to:

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     a. Another governmental entity in the furtherance of its

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duties and responsibilities.

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     b. Any person in order to facilitate an active

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investigation.

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c. A person for print, publication, or broadcast if the law

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enforcement agency determines that such release would assist in

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locating or identifying a person that such agency believes to be

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a victim of a sexual offense and who is believed by such agency

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to be missing or endangered.

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3. This exemption applies to such confidential and exempt

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photographs, videotapes, or images held as criminal intelligence

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information or criminal investigative information held by a law

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enforcement agency before, on, or after the effective date of the

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exemption.

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     4. This paragraph is subject to the Open Government Sunset

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Review Act in accordance with s. 119.15, and shall stand repealed

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on October 2, 2013, unless reviewed and saved from repeal through

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reenactment by the Legislature.

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     Section 2. The Legislature finds that it is a public

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necessity to make confidential and exempt from public record

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requirements certain criminal intelligence information or

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criminal investigative information which reveals the identity of

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a victim of the crime of child abuse or of any sexual offense.

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The Legislature also finds that it is a public necessity to make

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confidential and exempt from public record requirements a

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photograph, videotape, or image of any part of the body of a

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victim of a sexual offense regardless of whether the photograph,

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videotape, or image identifies the victim. The identity of

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victims of child abuse or sexual offenses is information of a

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sensitive personal nature. As such, this exemption serves to

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minimize the trauma to victims because the release of such

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information would compound the tragedy already visited upon their

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lives and would be defamatory to or cause unwarranted damage to

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the good name or reputations of the victims. Protecting the

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release of identifying information of such victims protects them

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from further embarrassment, harassment, or injury. The

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Legislature further finds that it is a public necessity that

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criminal intelligence information or criminal investigative

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information which is a photograph, videotape, or image of any

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part of the body of a victim of a sexual offense prohibited under

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chapter 794, chapter 800, chapter 827, or chapter 847, Florida

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Statutes, be made confidential and exempt from public record

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requirements. The Legislature finds that such photographs,

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videotapes, or images often depict the victim in a graphic and

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disturbing fashion, frequently nude, bruised, or bloodied. Such

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highly sensitive photographs, videotapes, or images of a victim

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of a sexual offense, if viewed, copied, or publicized, could

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result in trauma, sorrow, humiliation, or emotional injury to the

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victim and the victim's family.

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     Section 3. Section 2. of Chapter 2003-157, Laws of Florida,

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is repealed.

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     Section 4.  Section 92.56, Florida Statutes, is amended to

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read:

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     92.56  Judicial proceedings and court records involving

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sexual offenses.--

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     (1) Those portions of All court records and court

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proceedings, including testimony from witnesses, that reveal

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criminal intelligence information or criminal investigative

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information that is confidential and exempt pursuant to s.

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119.071(2)(h) the photograph, name, or address of the victim of

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an alleged offense described in chapter 794 or chapter 800, or

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act of child abuse, aggravated child abuse, or sexual performance

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by a child as described in chapter 827, are confidential and

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exempt from the provisions of s. 24(a), Art. I of the State

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Constitution. and may not be made public if, upon a showing to

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the trial court with jurisdiction over the alleged offense, the

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state or the victim demonstrates that:

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     (a) The identity of the victim is not already known in the

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community;

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     (b) The victim has not voluntarily called public attention

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to the offense;

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     (c) The identity of the victim has not otherwise become a

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reasonable subject of public concern;

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     (d) The disclosure of the victim's identity would be

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offensive to a reasonable person; and

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     (e) The disclosure of the victim's identity would:

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     1. Endanger the victim because the assailant has not been

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apprehended and is not otherwise known to the victim;

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     2. Endanger the victim because of the likelihood of

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retaliation, harassment, or intimidation;

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     3. Cause severe emotional or mental harm to the victim;

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     4. Make the victim unwilling to testify as a witness; or

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     5. Be inappropriate for other good cause shown.

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     (2) If the court, pursuant to subsection (1), declares that

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all court records or other information that reveals the

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photograph, name, or address of the victim are confidential and

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exempt from s. 24(a), Art. I of the State Constitution, The

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defendant charged with the crime described in chapter 794 or

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chapter 800, or with child abuse, aggravated child abuse, or

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sexual performance by a child as described in chapter 827, may

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apply to the trial court for an order of disclosure of

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identifying information concerning the victim in order to prepare

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the defense. This paragraph may not be construed to prevent the

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disclosure of the victim's identity to the defendant; however,

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the defendant may not disclose the victim's identity to any

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person other than the defendant's attorney or any other person

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directly involved in the preparation of the defense. A willful

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and knowing disclosure of the identity of the victim to any other

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person by the defendant constitutes contempt.

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     (3)  The state may use a pseudonym instead of the victim's

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name to designate the victim of a crime described in chapter 794

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or chapter 800, or of child abuse, aggravated child abuse, or

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sexual performance by a child as described in chapter 827, in all

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court records and records of court proceedings.

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     (4)  The protection of this section may be waived by the

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victim of the alleged offense in a writing filed with the court,

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in which the victim consents to the use or release of identifying

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information during court proceedings and in the records of court

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proceedings.

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     (5)  This section does not prohibit the publication or

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broadcast of the substance of trial testimony in a prosecution

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for an offense described in chapter 794 or chapter 800, or a

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crime of child abuse, aggravated child abuse, or sexual

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performance by a child, as described in chapter 827, but the

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publication or broadcast may not include an identifying

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photograph, an identifiable voice, or the name or address of the

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victim, unless the victim has consented in writing to the

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publication and filed such consent with the court or unless the

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court has declared such records not confidential and exempt as

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provided for in subsection (1).

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     (6)  A willful and knowing violation of this section or a

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willful and knowing failure to obey any court order issued under

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this section constitutes contempt.

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     Section 5.  Paragraph (h) of subsection (1) of section

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119.0714, Florida Statutes, is amended to read:

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     119.0714  Court files; court records; official records.--

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     (1)  COURT FILES.--Nothing in this chapter shall be

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construed to exempt from s. 119.07(1) a public record that was

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made a part of a court file and that is not specifically closed

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by order of court, except:

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     (h) Criminal intelligence information or criminal

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investigative information that is confidential and exempt

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information or records that may reveal the identity of a person

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who is a victim of a sexual offense as provided in s.

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119.071(2)(h).

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     Section 6.  Section 794.03, Florida Statutes, is amended to

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read:

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     794.03  Unlawful to publish or broadcast information

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identifying sexual offense victim.--No person shall print,

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publish, or broadcast, or cause or allow to be printed,

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published, or broadcast, in any instrument of mass communication

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the name, address, or other identifying fact or information of

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the victim of any sexual offense within this chapter, except as

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provided in s. 119.071(2)(h). Such identifying information is

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confidential and exempt from the provisions of s. 119.07(1). An

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offense under this section shall constitute a misdemeanor of the

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second degree, punishable as provided in s. 775.082 or s.

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775.083.

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     Section 7.  This act shall take effect October 1, 2008.