Florida Senate - 2016 (PROPOSED BILL) SPB 7022 FOR CONSIDERATION By the Committee on Criminal Justice 591-00875-16 20167022pb 1 A bill to be entitled 2 An act relating to a review under the Open Government 3 Sunset Review Act; amending s. 406.136, F.S., which 4 provides an exemption from public records requirements 5 for a photograph or video or audio recording held by 6 an agency that depicts or records the killing of a 7 person; removing the scheduled repeal of the 8 exemption; providing an effective date. 9 10 Be It Enacted by the Legislature of the State of Florida: 11 12 Section 1. Section 406.136, Florida Statutes, is amended to 13 read: 14 406.136 A photograph or video or audio recording that 15 depicts or records the killing of a person.— 16 (1) As used in this section, the term “killing of a person” 17 means all acts or events that cause or otherwise relate to the 18 death of any human being, including any related acts or events 19 immediately preceding or subsequent to the acts or events that 20 were the proximate cause of death. 21 (2) A photograph or video or audio recording that depicts 22 or records the killing of a person is confidential and exempt 23 from s. 119.07(1) and s. 24(a), Art. I of the State 24 Constitution, except that a surviving spouse of the decedent may 25 view and copy any such photograph or video recording or listen 26 to or copy any such audio recording. If there is no surviving 27 spouse, then the surviving parents shall have access to such 28 records. If there is no surviving spouse or parent, then an 29 adult child shall have access to such records. 30 (3)(a) The deceased’s surviving relative, with whom 31 authority rests to obtain such records, may designate in writing 32 an agent to obtain such records. 33 (b) A local governmental entity, or a state or federal 34 agency, in furtherance of its official duties, pursuant to a 35 written request, may view or copy a photograph or video 36 recording or may listen to or copy an audio recording of the 37 killing of a person and, unless otherwise required in the 38 performance of their duties, the identity of the deceased shall 39 remain confidential and exempt. 40 (c) The custodian of the record, or his or her designee, 41 may not permit any other person to view or copy such photograph 42 or video recording or listen to or copy such audio recording 43 without a court order. 44 (4)(a) The court, upon a showing of good cause, may issue 45 an order authorizing any person to view or copy a photograph or 46 video recording that depicts or records the killing of a person 47 or to listen to or copy an audio recording that depicts or 48 records the killing of a person and may prescribe any 49 restrictions or stipulations that the court deems appropriate. 50 (b) In determining good cause, the court shall consider: 51 1. Whether such disclosure is necessary for the public 52 evaluation of governmental performance; 53 2. The seriousness of the intrusion into the family’s right 54 to privacy and whether such disclosure is the least intrusive 55 means available; and 56 3. The availability of similar information in other public 57 records, regardless of form. 58 (c) In all cases, the viewing, copying, listening to, or 59 other handling of a photograph or video or audio recording that 60 depicts or records the killing of a person must be under the 61 direct supervision of the custodian of the record or his or her 62 designee. 63 (5) A surviving spouse shall be given reasonable notice of 64 a petition filed with the court to view or copy a photograph or 65 video recording that depicts or records the killing of a person 66 or to listen to or copy any such audio recording, a copy of such 67 petition, and reasonable notice of the opportunity to be present 68 and heard at any hearing on the matter. If there is no surviving 69 spouse, then such notice must be given to the parents of the 70 deceased and, if the deceased has no living parent, then to the 71 adult children of the deceased. 72 (6)(a) Any custodian of a photograph or video or audio 73 recording that depicts or records the killing of a person who 74 willfully and knowingly violates this section commits a felony 75 of the third degree, punishable as provided in s. 775.082, s. 76 775.083, or s. 775.084. 77 (b) Any person who willfully and knowingly violates a court 78 order issued pursuant to this section commits a felony of the 79 third degree, punishable as provided in s. 775.082, s. 775.083, 80 or s. 775.084. 81 (c) A criminal or administrative proceeding is exempt from 82 this section but, unless otherwise exempted, is subject to all 83 other provisions of chapter 119, provided however that this 84 section does not prohibit a court in a criminal or 85 administrative proceeding upon good cause shown from restricting 86 or otherwise controlling the disclosure of a killing, crime 87 scene, or similar photograph or video or audio recordings in the 88 manner prescribed herein. 89 (7) This exemption shall be given retroactive application 90 and shall apply to all photographs or video or audio recordings 91 that depict or record the killing of a person, regardless of 92 whether the killing of the person occurred before, on, or after 93 July 1, 2011. However, nothing herein is intended to, nor may be 94 construed to, overturn or abrogate or alter any existing orders 95 duly entered into by any court of this state, as of the 96 effective date of this act, which restrict or limit access to 97 any photographs or video or audio recordings that depict or 98 record the killing of a person. 99 (8) This section only applies to such photographs and video 100 and audio recordings held by an agency as defined in s. 119.011. 101
(9) This section is subject to the Open Government Sunset102 Review Act in accordance with s. 119.15 and shall stand repealed103 on October 2, 2016, unless reviewed and saved from repeal104 through reenactment by the Legislature.105 Section 2. This act shall take effect October 1, 2016.