Florida Senate - 2009 SB 636 By Senator Dean 3-00672-09 2009636__ 1 A bill to be entitled 2 An act relating to public records; creating s. 3 925.131, F.S.; providing definitions; providing an 4 exemption from the public-records law for 5 investigative or crime scene photographs or video 6 recordings of a deceased person, a part of a deceased 7 person, or any part of a person's extreme, severe, or 8 acute injuries held by a law enforcement agency; 9 providing exceptions for certain relatives, injured 10 persons, or their designees; permitting a local or 11 county governmental entity, or a state or federal 12 agency, in furtherance of its official duties, to 13 access such records pursuant to a written request to 14 the law enforcement agency in possession of such 15 records; permitting a court, upon a showing of good 16 cause, to authorize any person to view or copy such a 17 record and impose any restrictions or stipulations 18 that it deems appropriate; requiring notice of such a 19 proceeding, a copy of the petition, and notice of the 20 opportunity to be present and heard at any hearing to 21 be provided to an injured person or to specified 22 relatives of a deceased person; requiring that the 23 viewing, copying, or other handling of such a record 24 be under the direct supervision of the custodian of 25 the record or his or her designee; providing criminal 26 penalties for violations of statute or court order; 27 exempting specified proceedings; permitting a judge or 28 other presiding officer in a criminal, civil, or 29 administrative proceeding upon good cause shown to 30 restrict or otherwise control the disclosure of such a 31 record; providing for future legislative review and 32 repeal; providing a finding of public necessity; 33 providing for retroactive effect; providing a 34 contingent effective date. 35 36 Be It Enacted by the Legislature of the State of Florida: 37 38 Section 1. Section 925.131, Florida Statutes, is created to 39 read: 40 925.131 Public-records exemption for certain law 41 enforcement photographs or video recordings.— 42 (1) For purposes of this section, the term: 43 (a) “Law enforcement agency” means any state agency or unit 44 of government in this state that has authority to employ or 45 appoint law enforcement officers, as defined in s. 943.10, as 46 well as any employee, deputy, or agent of such an agency or any 47 other person who may obtain possession of a restricted 48 photograph or recording in the course of assisting such an 49 agency in the performance of its duties. 50 (b) “Restricted photograph or recording” means an 51 investigative or crime scene photograph or video recording of a 52 deceased person, a part of a deceased person, or any part of a 53 person's extreme, severe, or acute injuries. 54 (2)(a) A restricted photograph or recording held by a law 55 enforcement agency is confidential and exempt from s. 119.07(1) 56 and s. 24(a), Art. I of the State Constitution, except that: 57 1. A restricted photograph or recording of a deceased 58 person may be viewed and copied by the surviving spouse of that 59 person, by a surviving parent of that person if there is no 60 surviving spouse, or by an adult child of the person if there is 61 no surviving spouse or parent. 62 2. A person whose extreme, severe, or acute injury is 63 depicted in whole or in part in a restricted photograph or 64 recording may view and copy such restricted photograph or 65 recording. 66 (b) Any person authorized to obtain records under this 67 subsection may designate in writing an agent to obtain such 68 records on his or her behalf. 69 (c) Persons authorized under this subsection to obtain such 70 records shall be provided access thereto unless such records are 71 otherwise exempt from s. 119.07(1) and s. 24(a), Art. I of the 72 State Constitution. 73 (3) A local or county governmental entity, or a state or 74 federal agency, in furtherance of its official duties and 75 pursuant to a written request to the law enforcement agency in 76 possession of such records, may view or copy a restricted 77 photograph or recording; however, unless otherwise required in 78 the performance of the entity's or agency's duties, the identity 79 of the deceased or injured person shall retain its confidential 80 and exempt status. 81 (4) Any viewing, copying, or other handling of a restricted 82 photograph or recording must be under the direct supervision of 83 the custodian of the record or his or her designee. The 84 custodian or his or her designee may not permit any person, 85 other than a person so authorized under subsection (2) or 86 subsection (3), to view or copy a restricted photograph or 87 recording unless required to do so by court order under 88 subsection (5). 89 (5)(a) A court, upon a showing of good cause, may issue an 90 order as provided in this subsection authorizing any person to 91 view or copy a restricted photograph or recording and may 92 prescribe any restrictions or stipulations that the court deems 93 appropriate. 94 (b) In determining good cause for purposes of paragraph 95 (a), the court shall consider whether such disclosure is 96 necessary for the public evaluation of governmental performance, 97 the seriousness of the intrusion into the family's or injured 98 person's right to privacy, whether such disclosure is the least 99 intrusive means available to enable public evaluation of 100 governmental performance, and the availability of similar 101 information in other public records, regardless of form. 102 (c) A surviving spouse of a deceased person or an injured 103 person appearing in a restricted photograph or recording shall 104 be given reasonable notice of a petition filed with the court 105 under this subsection to view or copy the restricted photograph 106 or recording, a copy of such petition, and reasonable notice of 107 the opportunity to be present and heard at any hearing on the 108 matter. If there is no surviving spouse, then such notice must 109 be given to the parents of the deceased, and if the deceased has 110 no living parent, then to the adult children of the deceased. 111 (6)(a) Any custodian or a designee of a custodian of a 112 restricted photograph or recording who willfully and knowingly 113 violates a provision of this section commits a felony of the 114 third degree, punishable as provided in s. 775.082, s. 775.083, 115 or s. 775.084. 116 (b) Any person who willfully and knowingly violates a court 117 order issued pursuant to this section commits a felony of the 118 third degree, punishable as provided in s. 775.082, s. 775.083, 119 or s. 775.084. 120 (7) A criminal, civil, or administrative proceeding is 121 exempt from the application of this section as to any 122 photographs or recordings, but unless such photographs or 123 recordings are otherwise exempt from s. 119.07(1) and s. 24(a), 124 Art. I of the State Constitution, the photographs or recordings 125 are subject to all other provisions of chapter 119. However, 126 this section does not prohibit a judge or other presiding 127 officer in a criminal, civil, or administrative proceeding, upon 128 good cause shown, from restricting or otherwise controlling the 129 disclosure of a restricted photograph or recording, or a similar 130 photograph or recording, in the manner prescribed in this 131 section. 132 (8) This section is subject to the Open Government Sunset 133 Review Act in accordance with s. 119.15, and shall stand 134 repealed on October 2, 2014, unless reviewed and saved from 135 repeal through reenactment by the Legislature. 136 Section 2. The Legislature finds that it is a public 137 necessity that investigative or crime scene photographs or video 138 recordings of a deceased person, a part of a deceased person, or 139 any part of a person's extreme, severe, or acute injuries be 140 confidential and exempt from disclosure. The Legislature finds 141 that such photographs or video recordings may depict or describe 142 a deceased or suffering person in graphic and disturbing 143 fashion. Such photographs or video recordings, if viewed, 144 copied, or publicized, could result in trauma, sorrow, 145 humiliation, or emotional injury to the individual depicted or 146 his or her immediate family. If the individual is deceased, such 147 dissemination could also cause injury to the memory of the 148 deceased. The Legislature notes that the existence of the 149 Internet and the proliferation of personal computers throughout 150 the world encourages and promotes the wide dissemination of 151 photographs and video recordings 24 hours a day and that 152 widespread unauthorized dissemination of photographs and video 153 recordings would subject a suffering individual and the 154 immediate family of a deceased or suffering individual to 155 continuous injury. The Legislature further notes that there 156 continue to be other types of available information, such as 157 police reports, that are less intrusive and injurious and that 158 continue to provide for public oversight. The Legislature 159 further finds that the exemption provided in this act should be 160 given retroactive application because it is remedial in nature. 161 Section 3. This act shall apply to all photographs or video 162 recordings subject to its terms regardless of whether they were 163 created before, on, or after the effective date of this act. 164 Section 4. This act shall take effect on the same date that 165 SB ____ or similar legislation takes effect, if such legislation 166 is enacted in the same legislative session or an extension 167 thereof and becomes law.