Florida Senate - 2017 SB 1244 By Senator Steube 23-01074-17 20171244__ 1 A bill to be entitled 2 An act relating to subpoenas in investigations of 3 sexual offenses; creating s. 775.211, F.S.; 4 authorizing a law enforcement agency to issue and 5 serve a subpoena in an investigation of an offense 6 involving the sexual exploitation or abuse of a child, 7 an offense involving an unregistered sex offender, or 8 other specified offenses; specifying and limiting the 9 scope of production under the subpoena; defining the 10 term “sex offender”; requiring the payment of fees and 11 mileage to a subpoenaed witness; authorizing a person 12 who is the subject of a summons to petition for an 13 order modifying or setting aside the summons or a 14 prohibition accompanying the summons; prohibiting the 15 recipient of a subpoena from disclosing its contents 16 to another person under certain circumstances; 17 providing exceptions; specifying requirements 18 regarding the nondisclosure of information; providing 19 that nondisclosure requirements are subject to 20 judicial review and that subpoenas issued under a 21 nondisclosure certification must include notice of the 22 option of judicial review; requiring the return of 23 produced records under certain circumstances; 24 requiring that certain recipients of such a subpoena 25 be allowed at least a specified amount of time to 26 produce records; specifying requirements for service 27 of the subpoena; authorizing the issuer of the 28 subpoena to seek enforcement of the subpoena in a 29 court of competent jurisdiction; authorizing a court 30 to punish noncompliance with an order with contempt; 31 providing immunity from liability for the good faith 32 compliance with such a subpoena; specifying the 33 procedure for filing for judicial review of a 34 nondisclosure requirement imposed in connection with a 35 subpoena; requiring the law enforcement agency to 36 apply for a nondisclosure order within a specified 37 timeframe after receipt of notification of a filing 38 for judicial review; requiring a district court of 39 appeal to rule expeditiously on such filing; requiring 40 an application for a nondisclosure order to include 41 the law enforcement agency’s certification as to 42 possible results of disclosure; requiring the district 43 court of appeal to issue a nondisclosure order, or an 44 extension thereof, under certain circumstances; 45 specifying circumstances under which a district court 46 of appeal may issue an extension for a specified 47 period; requiring a court to close any hearing and 48 seal records to prevent the disclosure of specified 49 information or records; providing an effective date. 50 51 Be It Enacted by the Legislature of the State of Florida: 52 53 Section 1. Section 775.211, Florida Statutes, is created to 54 read: 55 775.211 Subpoenas in investigations of sexual offenses.— 56 (1) AUTHORIZATION FOR ISSUANCE OF SUBPOENA.— 57 (a)1. In an investigation of an offense involving the 58 sexual exploitation or abuse of a child, an offense involving an 59 unregistered sex offender, or an offense meeting the criteria 60 specified for designation as a sexual predator under s. 775.21, 61 a law enforcement agency may issue in writing and serve a 62 subpoena requiring the production of records and things and 63 testimony described in subparagraph 2. 64 2. Except as provided in subparagraph 3., a subpoena issued 65 under subparagraph 1. may require the production by their 66 custodian of any records or things relevant to the investigation 67 and testimony concerning their production and authenticity. 68 3. A subpoena issued under subparagraph 1. to a provider of 69 electronic communication services or remote computing services 70 in the course of an investigation of an offense involving the 71 sexual exploitation or abuse of a child may not extend beyond 72 requiring the provider to disclose the information specified in 73 s. 775.21, which may be relevant to an authorized law 74 enforcement inquiry, or requiring the provider’s custodian of 75 the records to give testimony concerning the production and 76 authentication of such records or information. 77 4. As used in this paragraph, the term “sex offender” means 78 a person who has been convicted of committing, or attempting, 79 soliciting, or conspiring to commit, any of the following 80 criminal offenses in this state or similar offenses in another 81 jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s. 82 787.02, or s. 787.025(2)(c), when the victim is a minor; s. 83 787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h); s. 84 794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03; 85 former s. 796.035; s. 800.04; s. 810.145(8); s. 825.1025; s. 86 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 87 847.0137; s. 847.0138; s. 847.0145; s. 895.03, if the court 88 makes a written finding that the racketeering activity involved 89 at least one sexual offense listed in this subparagraph or at 90 least one offense listed in this subparagraph with sexual intent 91 or motive; s. 916.1075(2); or s. 985.701(1). 92 (b) A subpoena issued under this subsection must describe 93 the records or things required to be produced and prescribe a 94 date by which the records or things must be made available. 95 (c) A witness subpoenaed under this subsection must be paid 96 the same fees and mileage that are paid to a witness in the 97 courts of this state. 98 (d) At any time before the return date specified in the 99 summons, the person or entity summoned, in the court having 100 jurisdiction over such person or investigation, may petition for 101 an order modifying or setting aside the summons or a prohibition 102 of disclosure under paragraph (e). 103 (e)1. If a subpoena issued under this subsection is 104 accompanied by a certification under this subparagraph and 105 notice of the right to judicial review under subparagraph 3., 106 the recipient of the subpoena may not disclose to any person 107 that the law enforcement agency that issued the subpoena has 108 sought or obtained access to information or records under this 109 section for a period of 180 days. The law enforcement agency 110 that issues the subpoena may request such certification by 111 certifying to the court that the absence of a prohibition on 112 disclosure may result in: 113 a. Endangering the life or physical safety of an 114 individual; 115 b. Flight from prosecution; 116 c. Destruction of or tampering with evidence; 117 d. Intimidation of potential witnesses; or 118 e. Seriously jeopardizing an investigation or unduly 119 delaying a trial. 120 2.a. A recipient of a subpoena issued under this subsection 121 may disclose information otherwise subject to any applicable 122 nondisclosure requirement to persons as necessary to comply with 123 the request, to an attorney in order to obtain legal advice or 124 assistance regarding the request, or to other persons as allowed 125 by the law enforcement agency that issued the subpoena. 126 b. A person to whom disclosure is made under sub 127 subparagraph a. is subject to the nondisclosure requirements 128 applicable to a person to whom a subpoena is issued under this 129 subsection in the same manner as the person to whom the subpoena 130 was issued. 131 c. Any recipient who discloses to a person described in 132 sub-subparagraph a. information otherwise subject to a 133 nondisclosure requirement shall notify that person of the 134 applicable nondisclosure requirement. 135 d. At the request of the law enforcement agency that issued 136 the subpoena, any person making or intending to make a 137 disclosure under sub-subparagraph a. to a person other than an 138 attorney shall identify to the law enforcement agency the person 139 to whom such disclosure has been or will be made. 140 3. A nondisclosure requirement imposed under subparagraph 141 1. is subject to judicial review under subsection (5). A 142 subpoena issued under this subsection in connection with a 143 nondisclosure requirement imposed under subparagraph 1. must 144 include notice of the availability of such judicial review. Such 145 nondisclosure requirement may be extended in accordance with 146 subsection (5). 147 (f) A summons issued under this subsection may not compel 148 the production of anything that would be protected from 149 production under the standards applicable to a subpoena duces 150 tecum issued by a court of this state. 151 (g) If a case or proceeding does not arise from the 152 production of records or other things pursuant to this 153 subsection within a reasonable time after those records or 154 things are produced, the agency to which those records or things 155 were delivered shall, upon written demand made by the person who 156 produced them, return them to that person, unless the materials 157 produced were copies rather than originals. 158 (h) A subpoena issued under paragraph (a) for an 159 unregistered sex offender may require production as soon as 160 possible, but must allow the recipient at least 24 hours after 161 service of the subpoena to produce. 162 (2) SERVICE.—A subpoena issued under subsection (1) may be 163 served by any person who is at least 18 years of age and 164 designated in the subpoena to serve it. Service upon an 165 individual may be made by personal delivery. Service may be made 166 on a domestic or foreign corporation or on a partnership or 167 other unincorporated association that is subject to suit under a 168 common name by delivering the subpoena to an officer, a managing 169 or general agent, or any other agent authorized by appointment 170 or by law to receive service of process. The affidavit of the 171 person serving the subpoena entered on a true copy of the 172 subpoena is proof of service. 173 (3) ENFORCEMENT.—In the case of contumacy by or refusal to 174 comply with a subpoena, the law enforcement agency that issued 175 the subpoena may petition a court that has jurisdiction of the 176 investigation or over the person subpoenaed, or in which he or 177 she conducts business or may be found, to compel compliance. The 178 court may issue an order requiring the subpoenaed person to 179 appear before the law enforcement agency to produce records or 180 to give testimony concerning the production and authentication 181 of such records. Any failure to obey the order of the court may 182 be punished by the court as contempt. All process in any such 183 case may be served in any judicial district in which such person 184 is located. 185 (4) IMMUNITY FROM CIVIL LIABILITY.—Notwithstanding any 186 other law, a person subpoenaed under this section who complies 187 in good faith with the subpoena and produces the materials 188 sought is not liable in any court within the state to any 189 customer or other person for such production or for 190 nondisclosure of that production. 191 (5) JUDICIAL REVIEW OF NONDISCLOSURE REQUIREMENTS.— 192 (a) Nondisclosure order.— 193 1. If a recipient of a subpoena under this section wishes 194 to have a court review a nondisclosure requirement imposed in 195 connection with the subpoena, the recipient may notify the law 196 enforcement agency or file a petition for judicial review with 197 the issuing court. 198 2. No later than 30 days after the date of receipt of a 199 notification under subparagraph 1., the law enforcement agency 200 that shall apply for an order prohibiting the disclosure of the 201 existence or contents of the relevant subpoena. An application 202 under this subparagraph may be filed with the district court of 203 appeal for the judicial district in which the recipient of the 204 subpoena is doing business or with the district court of appeal 205 for any judicial district within which the authorized 206 investigation that is the basis for the subpoena is being 207 conducted. The applicable nondisclosure requirement shall remain 208 in effect during the pendency of any related proceeding. 209 3. A district court of appeal that receives a petition 210 under subparagraph 1. or an application under subparagraph 2. 211 must rule expeditiously, and shall, in accordance with paragraph 212 (c), issue a nondisclosure order that includes conditions 213 appropriate to the circumstances. 214 (b) Application contents.—An application for a 215 nondisclosure order, or an extension thereof, or a response to a 216 petition must include the certification required under 217 subparagraph (1)(e)1. 218 (c) Standard.—A district court of appeal shall issue a 219 nondisclosure order, or an extension thereof, under this 220 subsection if the court determines that there is reason to 221 believe that disclosure of the information subject to the 222 nondisclosure requirement during the applicable time period may 223 result in: 224 1. Endangering the life or physical safety of an 225 individual; 226 2. Flight from prosecution; 227 3. Destruction of or tampering with evidence; 228 4. Intimidation of potential witnesses; or 229 5. Seriously jeopardizing an investigation or unduly 230 delaying a trial. 231 (d) Extension.—Upon a showing that a circumstance described 232 in any of subparagraphs (c)1.-(c)5. continues to exist, a 233 district court of appeal may issue an ex parte order extending a 234 nondisclosure order imposed under this subsection for additional 235 180-day periods or, if the court determines that the 236 circumstances necessitate a longer period of nondisclosure, for 237 additional periods that are longer than 180 days. 238 (e) Closed hearings.—In all proceedings under this 239 subsection, subject to any right to an open hearing in a 240 contempt proceeding, the court shall close any hearing to the 241 extent necessary to prevent the unauthorized disclosure of a 242 request for records, a report, or other information made to any 243 person or entity under this section. Petitions, filings, 244 records, orders, certifications, and subpoenas must be kept 245 under seal to the extent and length of time necessary to prevent 246 the unauthorized disclosure of a subpoena under this section. 247 Section 2. This act shall take effect July 1, 2017.