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.