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.
   51  Be It Enacted by the Legislature of the State of Florida:
   53         Section 1. Section 775.211, Florida Statutes, is created to
   54  read:
   55         775.211 Subpoenas in investigations of sexual offenses.—
   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.
  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.