Florida Senate - 2023 COMMITTEE AMENDMENT Bill No. SB 404 Ì145616.Î145616 LEGISLATIVE ACTION Senate . House Comm: RCS . 03/22/2023 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Rules (Hutson) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Between lines 24 and 25 4 insert: 5 Section 1. Paragraph (p) of subsection (2) of section 6 119.071, Florida Statutes, is amended to read: 7 119.071 General exemptions from inspection or copying of 8 public records.— 9 (2) AGENCY INVESTIGATIONS.— 10 (p)1. As used in this paragraph, the term: 11 a. “Killing of a law enforcement officer who was acting in 12 accordance with his or her official duties” means all acts or 13 events that cause or otherwise relate to the death of a law 14 enforcement officer who was acting in accordance with his or her 15 official duties, including any related acts or events 16 immediately preceding or subsequent to the acts or events that 17 were the proximate cause of death. 18 b. “Killing of a victim of mass violence” means events that 19 depict either a victim being killed or the body of a victim 20 killed in an incident in which three or more persons, not 21 including the perpetrator, are killed by the perpetrator of an 22 intentional act of violence. 23 c. “Killing of a minor” means all acts or events that cause 24 or otherwise relate to the death of a victim who has not yet 25 reached the age of eighteen years at the time of the death, 26 including any related acts or events immediately preceding or 27 subsequent to the acts or events that were the proximate cause 28 of the death of a victim under the age of eighteen, events that 29 depict a victim under the age of eighteen being killed, or 30 events that depict the body of a victim under the age of 31 eighteen who has been killed. 32 2. A photograph or video or audio recording that depicts or 33 records the killing of a law enforcement officer who was acting 34 in accordance with his or her official duties,orthe killing of 35 a victim of mass violence, or the killing of a minor is 36 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I 37 of the State Constitution, except that a surviving spouse of the 38 decedent may view and copy any such photograph or video 39 recording or listen to or copy any such audio recording. If 40 there is no surviving spouse, the surviving parents shall have 41 access to such records. If there is no surviving spouse or 42 parent, the adult children shall have access to such records. 43 Nothing in this paragraph precludes a surviving spouse, parent, 44 or adult child of the victim from sharing or publicly releasing 45 such photograph or video or audio recording. 46 3.a. The deceased’s surviving relative, with whom authority 47 rests to obtain such records, may designate in writing an agent 48 to obtain such records. 49 b. A local governmental entity, or a state or federal 50 agency, in furtherance of its official duties, pursuant to a 51 written request, may view or copy a photograph or video 52 recording or may listen to or copy an audio recording of the 53 killing of a law enforcement officer who was acting in 54 accordance with his or her official duties,orthe killing of a 55 victim of mass violence, or the killing of a minor, and, unless 56 otherwise required in the performance of its duties, the 57 identity of the deceased shall remain confidential and exempt. 58 c. The custodian of the record, or his or her designee, may 59 not permit any other person to view or copy such photograph or 60 video recording or listen to or copy such audio recording 61 without a court order. 62 4.a. The court, upon a showing of good cause, may issue an 63 order authorizing any person to view or copy a photograph or 64 video recording that depicts or records the killing of a law 65 enforcement officer who was acting in accordance with his or her 66 official duties,orthe killing of a victim of mass violence, or 67 the killing of a minor, or to listen to or copy an audio 68 recording that depicts or records the killing of a law 69 enforcement officer who was acting in accordance with his or her 70 official duties,orthe killing of a victim of mass violence, or 71 the killing of a minor, and may prescribe any restrictions or 72 stipulations that the court deems appropriate. 73 b. In determining good cause, the court shall consider: 74 (I) Whether such disclosure is necessary for the public 75 evaluation of governmental performance; 76 (II) The seriousness of the intrusion into the family’s 77 right to privacy and whether such disclosure is the least 78 intrusive means available; and 79 (III) The availability of similar information in other 80 public records, regardless of form. 81 c. In all cases, the viewing, copying, listening to, or 82 other handling of a photograph or video or audio recording that 83 depicts or records the killing of a law enforcement officer who 84 was acting in accordance with his or her official duties,orthe 85 killing of a victim of mass violence, or the killing of a minor 86 must be under the direct supervision of the custodian of the 87 record or his or her designee. 88 5. A surviving spouse shall be given reasonable notice of a 89 petition filed with the court to view or copy a photograph or 90 video recording that depicts or records the killing of a law 91 enforcement officer who was acting in accordance with his or her 92 official duties,orthe killing of a victim of mass violence, or 93 the killing of a minor, or to listen to or copy any such audio 94 recording, a copy of such petition, and reasonable notice of the 95 opportunity to be present and heard at any hearing on the 96 matter. If there is no surviving spouse, such notice must be 97 given to the parents of the deceased and, if the deceased has no 98 surviving parent, to the adult children of the deceased. 99 6.a. Any custodian of a photograph or video or audio 100 recording that depicts or records the killing of a law 101 enforcement officer who was acting in accordance with his or her 102 official duties,orthe killing of a victim of mass violence, or 103 the killing of a minor who willfully and knowingly violates this 104 paragraph commits a felony of the third degree, punishable as 105 provided in s. 775.082, s. 775.083, or s. 775.084. 106 b. Any person who willfully and knowingly violates a court 107 order issued pursuant to this paragraph commits a felony of the 108 third degree, punishable as provided in s. 775.082, s. 775.083, 109 or s. 775.084. 110 c. A criminal or administrative proceeding is exempt from 111 this paragraph but, unless otherwise exempted, is subject to all 112 other provisions of chapter 119; however, this paragraph does 113 not prohibit a court in a criminal or administrative proceeding 114 upon good cause shown from restricting or otherwise controlling 115 the disclosure of a killing, crime scene, or similar photograph 116 or video or audio recording in the manner prescribed in this 117 paragraph. 118 7. The exemption in this paragraph shall be given 119 retroactive application and shall apply to all photographs or 120 video or audio recordings that depict or record the killing of a 121 law enforcement officer who was acting in accordance with his or 122 her official duties,orthe killing of a victim of mass 123 violence, or the killing of a minor, regardless of whether the 124 killing of the person occurred before, on, or after May 23, 125 2019. However, nothing in this paragraph is intended to, nor may 126 be construed to, overturn or abrogate or alter any existing 127 orders duly entered into by any court of this state, as of the 128 effective date of this act, which restrict or limit access to 129 any photographs or video or audio recordings that depict or 130 record the killing of a law enforcement officer who was acting 131 in accordance with his or her official duties,orthe killing of 132 a victim of mass violence, or the killing of a minor. 133 8. This paragraph applies only to such photographs and 134 video and audio recordings held by an agency. 135 9.a. This paragraph is subject to the Open Government 136 Sunset Review Act in accordance with s. 119.15 and shall stand 137 repealed on October 2, 2024, unless reviewed and saved from 138 repeal through reenactment by the Legislature. 139 b. The expansion of the public records exemption in 140 subparagraph (p)2. to allow for the expunction of a photograph 141 or video or audio recording that depicts or records the killing 142 of a minor is subject to the Open Government Sunset Review Act 143 in accordance with s. 119.15 and shall stand repealed on October 144 2, 2028, unless reviewed and saved from repeal through 145 reenactment by the Legislature. If the expansion of the 146 exemption is not saved from repeal, this paragraph shall revert 147 to that in existence on June 30, 2023, except that any 148 amendments to this subsection other than by this act shall be 149 preserved and continue to operate to the extent that such 150 amendments are not dependent upon the portions of this 151 subsection which expire pursuant to this paragraph. 152 Section 2. (1)(a) The Legislature finds that it is a public 153 necessity that photographs and video and audio recordings that 154 depict or record the killing of a minor be made confidential and 155 exempt from s. 119.07(1), Florida Statutes, and s. 24(a), 156 Article I of the State Constitution. The Legislature finds that 157 photographs and video and audio recordings that depict or record 158 the killing of a minor render a graphic and often disturbing 159 visual or aural representation of the deceased. Such photographs 160 and video and audio recordings provide a view of the deceased in 161 the final moments of life, in which they are often bruised, 162 bloodied, broken, baring bullet wounds or other wounds, 163 lacerated, dismembered, or decapitated. As such, photographs and 164 video and audio recordings that depict or record the killing of 165 a minor are highly sensitive representations of the deceased 166 which, if heard, viewed, copied, or publicized, could result in 167 trauma, sorrow, humiliation, or emotional injury to the 168 immediate family of the deceased and detract from the memory of 169 the deceased. The Legislature recognizes that the existence of 170 the Internet and the proliferation of personal computers and 171 cellular telephones throughout the world encourages and promotes 172 the wide dissemination of such photographs and video and audio 173 recordings 24 hours a day and that widespread unauthorized 174 dissemination of such photographs and video and audio recordings 175 would subject the immediate family of the deceased to continuous 176 injury. 177 (b) In addition to the emotional and mental injury that 178 these photographs and video and audio recordings may cause 179 family members, the Legislature is also concerned that 180 dissemination of photographs and video and audio recordings that 181 depict or record the killing of a minor is harmful to the 182 public. The Legislature is concerned that the release of these 183 photographs and video and audio recordings may educe violent 184 acts by persons who have a mental illness or who are morally 185 corrupt. 186 (c) The Legislature further recognizes that other types of 187 information, such as crime scene reports, continue to be 188 available which are less intrusive and injurious to the 189 immediate family of the deceased and continue to provide for 190 public oversight. The Legislature further finds that the 191 exemption provided in this act should be given retroactive 192 application because it is remedial in nature. 193 ================= T I T L E A M E N D M E N T ================ 194 And the title is amended as follows: 195 Delete line 2 196 and insert: 197 An act relating to public records; amending s. 198 119.071, F.S.; defining the term “killing of a minor”; 199 expanding an existing exemption from public records 200 requirements for a photograph or a video or audio 201 recording held by an agency which depicts or records 202 the killing of a law enforcement officer or killing of 203 a victim of mass violence to include a photograph or a 204 video or audio recording held by an agency which 205 depicts or records the killing of a minor; clarifying 206 that a surviving spouse, parent, or adult child of the 207 victim is not precluded from publicly releasing such 208 photograph or video or audio recording; providing 209 criminal penalties; providing retroactive 210 applicability; providing for future legislative review 211 and repeal of the exemption; conforming provisions to 212 changes made by the act; providing a statement of 213 public necessity; providing a short