HB 7107

1	A bill to be entitled
2	An act relating to a review under the Open Government
3	Sunset Review Act regarding victims of child abuse or sex
4	crimes; amending s. 119.071, F.S.; expanding the exemption
5	from public records requirements for certain information
6	regarding victims of child abuse or sex crimes by making
7	such information confidential and exempt and by including
8	sexual offenses related to prostitution and obscenity
9	prohibited under chapters 796 and 847, F.S., within the
10	exemption; providing exceptions to the exemption;
11	providing for review and repeal of the exemption;
12	reorganizing the exemption; providing a statement of
13	public necessity; repealing s. 2 of ch. 2003-157, Laws of
14	Florida, which provides for repeal of the exemption;
15	amending s. 92.56, F.S.; requiring that the confidential
16	and exempt status of specified victim information be
17	maintained in court records and court proceedings;
18	providing specified criteria for maintaining the
19	confidential and exempt status of such information upon
20	the filing of a petition for access thereto with a trial
21	court; permitting a defendant charged with specified
22	offenses to apply for an order of disclosure of certain
23	confidential and exempt information to prepare a defense;
24	amending s. 119.0714, F.S.; revising a specified exemption
25	from public records requirements for a public record that
26	was made part of a court file, to conform; amending s.
27	794.03, F.S., relating to a specified exception to the
28	prohibited publishing or broadcasting of identifying
29	information relative to the victim of a sexual offense, to
30	conform; reenacting s. 119.011(3)(c), F.S., which defines
31	"criminal intelligence information" and "criminal
32	intelligence information," and s. 794.024(1), F.S., which
33	prohibits the knowing or willful disclosure of identifying
34	information, for the purpose of incorporating the
35	amendment to s. 119.071, F.S., in references thereto;
36	providing an effective date.
37
38	Be It Enacted by the Legislature of the State of Florida:
39
40	Section 1.  Paragraph (h) of subsection (2) of section
41	119.071, Florida Statutes, is amended to read:
42	119.071  General exemptions from inspection or copying of
43	public records.--
44	(2)  AGENCY INVESTIGATIONS.--
45	(h)1.  The following criminal intelligence information or
46	criminal investigative information is confidential and exempt
47	from s. 119.07(1) and s. 24(a), Art. I of the State
48	Constitution:
49	a.  Any criminal intelligence information or criminal
50	investigative information, including the photograph, name,
51	address, or other fact, or information which reveals the
52	identity of the victim of the crime of sexual battery as defined
53	in chapter 794; the identity of the victim of a lewd or
54	lascivious offense committed upon or in the presence of a person
55	less than 16 years of age, as defined in chapter 800; or the
56	identity of the victim of the crime of child abuse as defined by
57	chapter 827. and
58	b.  Any criminal intelligence information or criminal
59	investigative information or other criminal record, including
60	those portions of court records and court proceedings, which may
61	reveal the identity of a person who is a victim of any sexual
62	offense, including a sexual offense proscribed in chapter 794,
63	chapter 796, chapter 800, or chapter 827, or chapter 847 is
64	exempt from s. 119.07(1) and s. 24(a), Art. I of the State
65	Constitution.
66	c.2.  In addition to subparagraph 1., any criminal
67	intelligence information or criminal investigative information
68	that is A photograph, videotape, or image of any part of the
69	body of the victim of a sexual offense prohibited under chapter
70	794, chapter 796, chapter 800, or chapter 827, or chapter 847,
71	regardless of whether the photograph, videotape, or image
72	identifies the victim, is confidential and exempt from s.
73	119.07(1) and s. 24(a), Art. I of the State Constitution.
74	2.  Criminal investigative information and criminal
75	intelligence information made confidential and exempt under this
76	paragraph may be disclosed by a law enforcement agency:
77	a.  In the furtherance of its official duties and
78	responsibilities.
79	b.  Via print media, broadcast media, or other form of
80	publication if the law enforcement agency determines that such
81	release would assist in locating or identifying a person that
82	such agency believes to be missing or endangered. The
83	information provided should be limited to that needed to
84	identify or locate the victim and not include the sexual nature
85	of the offense committed against the person.
86	3.  This exemption applies to such confidential and exempt
87	photographs, videotapes, or images held as criminal intelligence
88	information or criminal investigative information held by a law
89	enforcement agency before, on, or after the effective date of
90	the exemption.
91	4.  This paragraph is subject to the Open Government Sunset
92	Review Act in accordance with s. 119.15 and shall stand repealed
93	on October 2, 2013, unless reviewed and saved from repeal
94	through reenactment by the Legislature.
95	Section 2.  The Legislature finds that it is a public
96	necessity to make confidential and exempt from public records
97	requirements certain criminal intelligence information or
98	criminal investigative information that reveals the identity of
99	a victim of the crime of child abuse or of any sexual offense.
100	The Legislature also finds that it is a public necessity to make
101	confidential and exempt from public records requirements a
102	photograph, videotape, or image of any part of the body of a
103	victim of a sexual offense regardless of whether the photograph,
104	videotape, or image identifies the victim. The Legislature finds
105	that it is important to strengthen the protections afforded
106	victims of sexual offenses or child abuse in order to ensure
107	their privacy and to prevent revictimization by making such
108	information confidential and exempt. The identity of victims of
109	child abuse or sexual offenses is information of a sensitive
110	personal nature. As such, this exemption serves to minimize the
111	trauma to victims because the release of such information would
112	compound the tragedy already visited upon their lives and would
113	be defamatory to or cause unwarranted damage to the good name or
114	reputation of the victims. Protecting the release of identifying
115	information of such victims protects them from further
116	embarrassment, harassment, or injury. The Legislature further
117	finds that it is a public necessity that criminal intelligence
118	information or criminal investigative information that is a
119	photograph, videotape, or image of any part of the body of a
120	victim of a sexual offense prohibited under chapter 794, chapter
121	796, chapter 800, chapter 827, or chapter 847, Florida Statutes,
122	be made confidential and exempt from public records
123	requirements. The Legislature finds that such photographs,
124	videotapes, or images often depict the victim in a graphic and
125	disturbing fashion, frequently nude, bruised, or bloodied. Such
126	highly sensitive photographs, videotapes, or images of a victim
127	of a sexual offense, if viewed, copied, or publicized, could
128	result in trauma, sorrow, humiliation, or emotional injury to
129	the victim and the victim's family.
130	Section 3.  Section 2 of chapter 2003-157, Laws of Florida,
131	is repealed.
132	Section 4.  Section 92.56, Florida Statutes, is amended to
133	read:
134	92.56  Judicial proceedings and court records involving
135	sexual offenses.--
136	(1)(a)  The confidential and exempt status of criminal
137	intelligence information or criminal investigative information
138	made confidential and exempt pursuant to s. 119.071(2)(h) must
139	be maintained in court records pursuant to s. 119.0714(1)(h) and
140	in court proceedings, including testimony from witnesses.
141	(b)  If a petition for access to confidential and exempt
142	records described in paragraph (a) is filed with the trial court
143	having jurisdiction over the alleged offense, the confidential
144	and exempt status of such information shall be maintained by the
145	court if All court records, including testimony from witnesses,
146	that reveal the photograph, name, or address of the victim of an
147	alleged offense described in chapter 794 or chapter 800, or act
148	of child abuse, aggravated child abuse, or sexual performance by
149	a child as described in chapter 827, are confidential and exempt
150	from the provisions of s. 24(a), Art. I of the State
151	Constitution and may not be made public if, upon a showing to
152	the trial court with jurisdiction over the alleged offense, the
153	state or the victim demonstrates that:
154	1.(a)  The identity of the victim is not already known in
155	the community;
156	2.(b)  The victim has not voluntarily called public
157	attention to the offense;
158	3.(c)  The identity of the victim has not otherwise become
159	a reasonable subject of public concern;
160	4.(d)  The disclosure of the victim's identity would be
161	offensive to a reasonable person; and
162	5.(e)  The disclosure of the victim's identity would:
163	a.1.  Endanger the victim because the assailant has not
164	been apprehended and is not otherwise known to the victim;
165	b.2.  Endanger the victim because of the likelihood of
166	retaliation, harassment, or intimidation;
167	c.3.  Cause severe emotional or mental harm to the victim;
168	d.4.  Make the victim unwilling to testify as a witness; or
169	e.5.  Be inappropriate for other good cause shown.
170	(2)  A If the court, pursuant to subsection (1), declares
171	that all court records or other information that reveals the
172	photograph, name, or address of the victim are confidential and
173	exempt from s. 24(a), Art. I of the State Constitution, the
174	defendant charged with a the crime described in chapter 794 or
175	chapter 800, or with child abuse, aggravated child abuse, or
176	sexual performance by a child as described in chapter 827, may
177	apply to the trial court for an order of disclosure of
178	information in court records held confidential and exempt
179	pursuant to s. 119.0714(1)(h) or maintained as confidential and
180	exempt pursuant to court order under this section. Such
181	identifying information concerning the victim may be released to
182	the defendant or his or her attorney in order to prepare the
183	defense. The confidential and exempt status of this information
184	This paragraph may not be construed to prevent the disclosure of
185	the victim's identity to the defendant; however, the defendant
186	may not disclose the victim's identity to any person other than
187	the defendant's attorney or any other person directly involved
188	in the preparation of the defense. A willful and knowing
189	disclosure of the identity of the victim to any other person by
190	the defendant constitutes contempt.
191	(3)  The state may use a pseudonym instead of the victim's
192	name to designate the victim of a crime described in chapter 794
193	or chapter 800, or of child abuse, aggravated child abuse, or
194	sexual performance by a child as described in chapter 827, in
195	all court records and records of court proceedings.
196	(4)  The protection of this section may be waived by the
197	victim of the alleged offense in a writing filed with the court,
198	in which the victim consents to the use or release of
199	identifying information during court proceedings and in the
200	records of court proceedings.
201	(5)  This section does not prohibit the publication or
202	broadcast of the substance of trial testimony in a prosecution
203	for an offense described in chapter 794 or chapter 800, or a
204	crime of child abuse, aggravated child abuse, or sexual
205	performance by a child, as described in chapter 827, but the
206	publication or broadcast may not include an identifying
207	photograph, an identifiable voice, or the name or address of the
208	victim, unless the victim has consented in writing to the
209	publication and filed such consent with the court or unless the
210	court has declared such records not confidential and exempt as
211	provided for in subsection (1).
212	(6)  A willful and knowing violation of this section or a
213	willful and knowing failure to obey any court order issued under
214	this section constitutes contempt.
215	Section 5.  Paragraph (h) of subsection (1) of section
216	119.0714, Florida Statutes, is amended to read:
217	119.0714  Court files; court records; official records.--
218	(1)  COURT FILES.--Nothing in this chapter shall be
219	construed to exempt from s. 119.07(1) a public record that was
220	made a part of a court file and that is not specifically closed
221	by order of court, except:
222	(h)  Criminal intelligence information or criminal
223	investigative information that is confidential and exempt
224	information or records that may reveal the identity of a person
225	who is a victim of a sexual offense as provided in s.
226	119.071(2)(h).
227	Section 6.  Section 794.03, Florida Statutes, is amended to
228	read:
229	794.03  Unlawful to publish or broadcast information
230	identifying sexual offense victim.--No person shall print,
231	publish, or broadcast, or cause or allow to be printed,
232	published, or broadcast, in any instrument of mass communication
233	the name, address, or other identifying fact or information of
234	the victim of any sexual offense within this chapter, except as
235	provided in s. 119.071(2)(h) or unless the court determines that
236	such information is no longer confidential and exempt pursuant
237	to s. 92.56. Such identifying information is confidential and
238	exempt from the provisions of s. 119.07(1). An offense under
239	this section shall constitute a misdemeanor of the second
240	degree, punishable as provided in s. 775.082 or s. 775.083.
241	Section 7.  For the purpose of incorporating the amendment
242	made by this act to section 119.071, Florida Statutes, in
243	references thereto, paragraph (c) of subsection (3) of section
244	119.011, Florida Statutes, is reenacted to read:
245	119.011  Definitions.--As used in this chapter, the term:
246	(3)
247	(c)  "Criminal intelligence information" and "criminal
248	investigative information" shall not include:
249	1.  The time, date, location, and nature of a reported
250	crime.
251	2.  The name, sex, age, and address of a person arrested or
252	of the victim of a crime except as provided in s. 119.071(2)(h).
253	3.  The time, date, and location of the incident and of the
254	arrest.
255	4.  The crime charged.
256	5.  Documents given or required by law or agency rule to be
257	given to the person arrested, except as provided in s.
258	119.071(2)(h), and, except that the court in a criminal case may
259	order that certain information required by law or agency rule to
260	be given to the person arrested be maintained in a confidential
261	manner and exempt from the provisions of s. 119.07(1) until
262	released at trial if it is found that the release of such
263	information would:
264	a.  Be defamatory to the good name of a victim or witness
265	or would jeopardize the safety of such victim or witness; and
266	b.  Impair the ability of a state attorney to locate or
267	prosecute a codefendant.
268	6.  Informations and indictments except as provided in s.
269	905.26.
270	Section 8.  For the purpose of incorporating the amendment
271	made by this act to section 119.071, Florida Statutes, in a
272	reference thereto, subsection (1) of section 794.024, Florida
273	Statutes, is reenacted to read:
274	794.024  Unlawful to disclose identifying information.--
275	(1)  A public employee or officer who has access to the
276	photograph, name, or address of a person who is alleged to be
277	the victim of an offense described in this chapter, chapter 800,
278	s. 827.03, s. 827.04, or s. 827.071 may not willfully and
279	knowingly disclose it to a person who is not assisting in the
280	investigation or prosecution of the alleged offense or to any
281	person other than the defendant, the defendant's attorney, a
282	person specified in an order entered by the court having
283	jurisdiction of the alleged offense, or organizations authorized
284	to receive such information made exempt by s. 119.071(2)(h), or
285	to a rape crisis center or sexual assault counselor, as defined
286	in s. 90.5035(1)(b), who will be offering services to the
287	victim.
288	Section 9.  This act shall take effect October 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.