Florida Senate - 2019 (Corrected Copy) SB 186
By Senator Lee
20-01583A-19 2019186__
1 A bill to be entitled
2 An act relating to public records; transferring,
3 renumbering, and amending s. 406.136, F.S.; defining
4 the term “killing of a victim of mass violence”;
5 expanding an existing exemption from public records
6 requirements for a photograph or a video or audio
7 recording held by an agency which depicts or records
8 the killing of a law enforcement officer to include a
9 photograph or a video or audio recording held by an
10 agency which depicts or records the killing of a
11 victim of mass violence; providing criminal penalties;
12 providing retroactive applicability; providing for
13 future legislative review and repeal of the exemption;
14 conforming provisions to changes made by the act;
15 providing a statement of public necessity; providing a
16 directive to the Division of Law Revision; providing
17 an effective date.
18
19 Be It Enacted by the Legislature of the State of Florida:
20
21 Section 1. Section 406.136, Florida Statutes, is
22 transferred, renumbered as paragraph (p) of subsection (2) of
23 section 119.071, Florida Statutes, and amended, to read:
24 119.071 General exemptions from inspection or copying of
25 public records.—
26 (2) AGENCY INVESTIGATIONS.—
27 (p)1.(1) As used in this paragraph section, the term:
28 a. “Killing of a law enforcement officer who was acting in
29 accordance with his or her official duties” means all acts or
30 events that cause or otherwise relate to the death of a law
31 enforcement officer who was acting in accordance with his or her
32 official duties, including any related acts or events
33 immediately preceding or subsequent to the acts or events that
34 were the proximate cause of death.
35 b. “Killing of a victim of mass violence” means all acts or
36 events that cause or otherwise relate to the death of a person,
37 not including the perpetrator, who is killed in an incident in
38 which three or more people, not including the perpetrator, are
39 killed by an intentional act of violence by another person.
40 2.(2) A photograph or video or audio recording that depicts
41 or records the killing of a law enforcement officer who was
42 acting in accordance with his or her official duties or the
43 killing of a victim of mass violence is confidential and exempt
44 from s. 119.07(1) and s. 24(a), Art. I of the State
45 Constitution, except that a surviving spouse of the decedent may
46 view and copy any such photograph or video recording or listen
47 to or copy any such audio recording. If there is no surviving
48 spouse, then the surviving parents shall have access to such
49 records. If there is no surviving spouse or parent, the then an
50 adult children child shall have access to such records.
51 3.a.(3)(a) The deceased’s surviving relative, with whom
52 authority rests to obtain such records, may designate in writing
53 an agent to obtain such records.
54 b.(b) A local governmental entity, or a state or federal
55 agency, in furtherance of its official duties, pursuant to a
56 written request, may view or copy a photograph or video
57 recording or may listen to or copy an audio recording of the
58 killing of a law enforcement officer who was acting in
59 accordance with his or her official duties or the killing of a
60 victim of mass violence, and, unless otherwise required in the
61 performance of its their duties, the identity of the deceased
62 shall remain confidential and exempt.
63 c.(c) The custodian of the record, or his or her designee,
64 may not permit any other person to view or copy such photograph
65 or video recording or listen to or copy such audio recording
66 without a court order.
67 4.a.(4)(a) The court, upon a showing of good cause, may
68 issue an order authorizing any person to view or copy a
69 photograph or video recording that depicts or records the
70 killing of a law enforcement officer who was acting in
71 accordance with his or her official duties or the killing of a
72 victim of mass violence, or to listen to or copy an audio
73 recording that depicts or records the killing of a law
74 enforcement officer who was acting in accordance with his or her
75 official duties or the killing of a victim of mass violence, and
76 may prescribe any restrictions or stipulations that the court
77 deems appropriate.
78 b.(b) In determining good cause, the court shall consider:
79 (I)1. Whether such disclosure is necessary for the public
80 evaluation of governmental performance;
81 (II)2. The seriousness of the intrusion into the family’s
82 right to privacy and whether such disclosure is the least
83 intrusive means available; and
84 (III)3. The availability of similar information in other
85 public records, regardless of form.
86 c.(c) In all cases, the viewing, copying, listening to, or
87 other handling of a photograph or video or audio recording that
88 depicts or records the killing of a law enforcement officer who
89 was acting in accordance with his or her official duties or the
90 killing of a victim of mass violence must be under the direct
91 supervision of the custodian of the record or his or her
92 designee.
93 5.(5) A surviving spouse shall be given reasonable notice
94 of a petition filed with the court to view or copy a photograph
95 or video recording that depicts or records the killing of a law
96 enforcement officer who was acting in accordance with his or her
97 official duties or the killing of a victim of mass violence, or
98 to listen to or copy any such audio recording, a copy of such
99 petition, and reasonable notice of the opportunity to be present
100 and heard at any hearing on the matter. If there is no surviving
101 spouse, then such notice must be given to the parents of the
102 deceased and, if the deceased has no surviving living parent,
103 then to the adult children of the deceased.
104 6.a.(6)(a) Any custodian of a photograph or video or audio
105 recording that depicts or records the killing of a law
106 enforcement officer who was acting in accordance with his or her
107 official duties or the killing of a victim of mass violence who
108 willfully and knowingly violates this paragraph section commits
109 a felony of the third degree, punishable as provided in s.
110 775.082, s. 775.083, or s. 775.084.
111 b.(b) Any person who willfully and knowingly violates a
112 court order issued pursuant to this paragraph section commits a
113 felony of the third degree, punishable as provided in s.
114 775.082, s. 775.083, or s. 775.084.
115 c.(c) A criminal or administrative proceeding is exempt
116 from this paragraph section but, unless otherwise exempted, is
117 subject to all other provisions of chapter 119;, provided
118 however, that this paragraph section does not prohibit a court
119 in a criminal or administrative proceeding upon good cause shown
120 from restricting or otherwise controlling the disclosure of a
121 killing, crime scene, or similar photograph or video or audio
122 recording recordings in the manner prescribed in this paragraph
123 herein.
124 7.(7) The This exemption in this paragraph shall be given
125 retroactive application and shall apply to all photographs or
126 video or audio recordings that depict or record the killing of a
127 law enforcement officer who was acting in accordance with his or
128 her official duties or the killing of a victim of mass violence,
129 regardless of whether the killing of the person occurred before,
130 on, or after the effective date of this act July 1, 2011.
131 However, nothing in this paragraph herein is intended to, nor
132 may be construed to, overturn or abrogate or alter any existing
133 orders duly entered into by any court of this state, as of the
134 effective date of this act, which restrict or limit access to
135 any photographs or video or audio recordings that depict or
136 record the killing of a law enforcement officer who was acting
137 in accordance with his or her official duties or the killing of
138 a victim of mass violence.
139 8.(8) This paragraph section only applies only to such
140 photographs and video and audio recordings held by an agency as
141 defined in s. 119.011.
142 9. This paragraph is subject to the Open Government Sunset
143 Review Act in accordance with s. 119.15 and shall stand repealed
144 on October 2, 2024, unless reviewed and saved from repeal
145 through reenactment by the Legislature.
146 Section 2. (1) The Legislature finds that it is a public
147 necessity that photographs and video and audio recordings that
148 depict or record the killing of a victim of mass violence be
149 made confidential and exempt from s. 119.07(1), Florida
150 Statutes, and s. 24(a), Article I of the State Constitution. The
151 Legislature finds that photographs and video and audio
152 recordings that depict or record the killing of a victim of mass
153 violence render a graphic and often disturbing visual or aural
154 representation of the deceased. Such photographs and video and
155 audio recordings provide a view of the deceased in the final
156 moments of life, in which they are often bruised, bloodied,
157 broken, baring bullet wounds or other wounds, lacerated,
158 dismembered, or decapitated. As such, photographs and video and
159 audio recordings that depict or record the killing of a victim
160 of mass violence are highly sensitive representations of the
161 deceased which, if heard, viewed, copied, or publicized, could
162 result in trauma, sorrow, humiliation, or emotional injury to
163 the immediate family of the deceased and detract from the memory
164 of the deceased. The Legislature recognizes that the existence
165 of the Internet and the proliferation of personal computers and
166 cellular telephones throughout the world encourages and promotes
167 the wide dissemination of such photographs and video and audio
168 recordings 24 hours a day and that widespread unauthorized
169 dissemination of such photographs and video and audio recordings
170 would subject the immediate family of the deceased to continuous
171 injury.
172 (2) In addition to the emotional and mental injury that
173 these photographs and video and audio recordings may cause
174 family members, the Legislature is also concerned that
175 dissemination of photographs and video and audio recordings that
176 depict or record the killing of a victim of mass shooting is
177 harmful to the public. The Legislature is gravely concerned and
178 saddened by the horrific mass killings perpetrated at the Pulse
179 nightclub in Orlando, at the Fort Lauderdale-Hollywood
180 International Airport, and at Marjory Stoneman Douglas High
181 School. The Legislature is concerned that, if these photographs
182 and video and audio recordings are released, terrorists will use
183 them to attract followers, bring attention to their causes, and
184 inspire others to kill. The Legislature also finds that
185 dissemination of these photographs and video and audio
186 recordings may also educe violent acts by persons who have a
187 mental illness or who are morally corrupt.
188 (3) The Legislature further recognizes that other types of
189 information, such as crime scene reports, continue to be
190 available which are less intrusive and injurious to the
191 immediate family of the deceased and continue to provide for
192 public oversight. The Legislature further finds that the
193 exemption provided in this act should be given retroactive
194 application because it is remedial in nature.
195 Section 3. The Division of Law Revision is directed to
196 replace the phrase “the effective date of this act” wherever it
197 occurs in this act with the date this act becomes a law.
198 Section 4. This act shall take effect upon becoming a law.