ENROLLED
       2023 Legislature                    CS for SB 404, 1st Engrossed
       
       
       
       
       
       
                                                              2023404er
    1  
    2         An act relating to public records; amending s.
    3         119.071, F.S.; defining the term “killing of a minor”;
    4         creating an exemption from public records requirements
    5         for a photograph or video or audio recording of the
    6         killing of a minor, with exceptions; providing
    7         construction; requiring that any viewing, copying,
    8         listening to, or other handling of such photograph or
    9         video or audio recording be under the direct
   10         supervision of the custodian of the record or his or
   11         her designee; requiring that surviving parents of a
   12         minor who was killed be given reasonable notice of any
   13         petition to view or copy a photograph or video
   14         recording, or to listen to or copy any such audio
   15         recording, of the killing of the minor; a copy of the
   16         petition; and the opportunity to be present and heard
   17         at related hearings; providing penalties; providing
   18         construction; providing for retroactive application;
   19         providing for future legislative review and repeal of
   20         the exemption; providing statements of public
   21         necessity; providing a short title; amending s.
   22         406.135, F.S.; defining the terms “domestic violence”
   23         and “minor”; revising the definition of the term
   24         “medical examiner”; creating an exemption from public
   25         records requirements for autopsy reports of minors
   26         whose deaths were related to acts of domestic
   27         violence; providing exceptions; requiring that any
   28         viewing, copying, listening to, or other handling of
   29         such autopsy reports be under the direct supervision
   30         of the custodian of the record or his or her designee;
   31         requiring that certain surviving parents of a minor
   32         whose death was related to an act of domestic violence
   33         be given reasonable notice of any petition to view or
   34         copy the minor’s autopsy report, a copy of the
   35         petition, and the opportunity to be present and heard
   36         at related hearings; providing penalties; providing
   37         construction; providing for retroactive application;
   38         providing for future legislative review and repeal of
   39         the exemption; providing a statement of public
   40         necessity; providing an effective date.
   41          
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. Paragraph (p) of subsection (2) of section
   45  119.071, Florida Statutes, is amended to read:
   46         119.071 General exemptions from inspection or copying of
   47  public records.—
   48         (2) AGENCY INVESTIGATIONS.—
   49         (p)1. As used in this paragraph, the term:
   50         a. “Killing of a law enforcement officer who was acting in
   51  accordance with his or her official duties” means all acts or
   52  events that cause or otherwise relate to the death of a law
   53  enforcement officer who was acting in accordance with his or her
   54  official duties, including any related acts or events
   55  immediately preceding or subsequent to the acts or events that
   56  were the proximate cause of death.
   57         b. “Killing of a minor” means all acts or events that cause
   58  or otherwise relate to the death of a victim who has not yet
   59  reached the age of 18 at the time of the death, including any
   60  related acts or events immediately preceding or subsequent to
   61  the acts or events that were the proximate cause of the death of
   62  a victim under the age of 18, events that depict a victim under
   63  the age of 18 being killed, or events that depict the body of a
   64  victim under the age of 18 who has been killed.
   65         c. “Killing of a victim of mass violence” means events that
   66  depict either a victim being killed or the body of a victim
   67  killed in an incident in which three or more persons, not
   68  including the perpetrator, are killed by the perpetrator of an
   69  intentional act of violence.
   70         2.a. A photograph or video or audio recording that depicts
   71  or records the killing of a law enforcement officer who was
   72  acting in accordance with his or her official duties or the
   73  killing of a victim of mass violence is confidential and exempt
   74  from s. 119.07(1) and s. 24(a), Art. I of the State
   75  Constitution, except that a surviving spouse of the decedent may
   76  view and copy any such photograph or video recording or listen
   77  to or copy any such audio recording. If there is no surviving
   78  spouse, the surviving parents shall have access to such records.
   79  If there is no surviving spouse or parent, the adult children
   80  shall have access to such records. Nothing in this sub
   81  subparagraph paragraph precludes a surviving spouse, parent, or
   82  adult child of the victim from sharing or publicly releasing
   83  such photograph or video or audio recording.
   84         b.A photograph or video or audio recording that depicts or
   85  records the killing of a minor is confidential and exempt from
   86  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
   87  except that a surviving parent of the deceased minor may view
   88  and copy any such photograph or video recording or listen to or
   89  copy any such audio recording. Nothing in this sub-subparagraph
   90  precludes a surviving parent of the victim from sharing or
   91  publicly releasing such photograph or video or audio recording.
   92         3.a. The deceased’s surviving relative, with whom authority
   93  rests to obtain such records, may designate in writing an agent
   94  to obtain such records.
   95         b. Notwithstanding subparagraph 2., a local governmental
   96  entity, or a state or federal agency, in furtherance of its
   97  official duties, pursuant to a written request, may view or copy
   98  a photograph or video recording or may listen to or copy an
   99  audio recording of the killing of a law enforcement officer who
  100  was acting in accordance with his or her official duties, or the
  101  killing of a victim of mass violence, or the killing of a minor,
  102  and, unless otherwise required in the performance of its duties,
  103  the identity of the deceased shall remain confidential and
  104  exempt.
  105         c. The custodian of the record, or his or her designee, may
  106  not permit any other person to view or copy such photograph or
  107  video recording or listen to or copy such audio recording
  108  without a court order.
  109         4.a. The court, upon a showing of good cause, may issue an
  110  order authorizing any person to view or copy a photograph or
  111  video recording that depicts or records the killing of a law
  112  enforcement officer who was acting in accordance with his or her
  113  official duties, or the killing of a victim of mass violence, or
  114  the killing of a minor, or to listen to or copy an audio
  115  recording that depicts or records the killing of a law
  116  enforcement officer who was acting in accordance with his or her
  117  official duties, or the killing of a victim of mass violence, or
  118  the killing of a minor, and may prescribe any restrictions or
  119  stipulations that the court deems appropriate.
  120         b. In determining good cause, the court shall consider:
  121         (I) Whether such disclosure is necessary for the public
  122  evaluation of governmental performance;
  123         (II) The seriousness of the intrusion into the family’s
  124  right to privacy and whether such disclosure is the least
  125  intrusive means available; and
  126         (III) The availability of similar information in other
  127  public records, regardless of form.
  128         c. In all cases, the viewing, copying, listening to, or
  129  other handling of a photograph or video or audio recording that
  130  depicts or records the killing of a law enforcement officer who
  131  was acting in accordance with his or her official duties, or the
  132  killing of a victim of mass violence, or the killing of a minor
  133  must be under the direct supervision of the custodian of the
  134  record or his or her designee.
  135         5.a. A surviving spouse shall be given reasonable notice of
  136  a petition filed with the court to view or copy a photograph or
  137  video recording that depicts or records the killing of a law
  138  enforcement officer who was acting in accordance with his or her
  139  official duties or the killing of a victim of mass violence, or
  140  to listen to or copy any such audio recording, a copy of such
  141  petition, and reasonable notice of the opportunity to be present
  142  and heard at any hearing on the matter. If there is no surviving
  143  spouse, such notice must be given to the parents of the deceased
  144  and, if there is the deceased has no surviving parent, to the
  145  adult children of the deceased.
  146         b.A surviving parent must be given reasonable notice of a
  147  petition filed with the court to view or copy a photograph or
  148  video recording that depicts or records the killing of a minor
  149  or to listen to or copy any such audio recording; a copy of such
  150  petition; and reasonable notice of the opportunity to be present
  151  and heard at any hearing on the matter.
  152         6.a. Any custodian of a photograph or video or audio
  153  recording that depicts or records the killing of a law
  154  enforcement officer who was acting in accordance with his or her
  155  official duties, or the killing of a victim of mass violence, or
  156  the killing of a minor who willfully and knowingly violates this
  157  paragraph commits a felony of the third degree, punishable as
  158  provided in s. 775.082, s. 775.083, or s. 775.084.
  159         b. Any person who willfully and knowingly violates a court
  160  order issued pursuant to this paragraph commits a felony of the
  161  third degree, punishable as provided in s. 775.082, s. 775.083,
  162  or s. 775.084.
  163         c. A criminal or administrative proceeding is exempt from
  164  this paragraph but, unless otherwise exempted, is subject to all
  165  other provisions of chapter 119; however, this paragraph does
  166  not prohibit a court in a criminal or administrative proceeding
  167  upon good cause shown from restricting or otherwise controlling
  168  the disclosure of a killing, crime scene, or similar photograph
  169  or video or audio recording in the manner prescribed in this
  170  paragraph.
  171         7. The exemption in this paragraph shall be given
  172  retroactive application and shall apply to all photographs or
  173  video or audio recordings that depict or record the killing of a
  174  law enforcement officer who was acting in accordance with his or
  175  her official duties, or the killing of a victim of mass
  176  violence, or the killing of a minor, regardless of whether the
  177  killing of the person occurred before, on, or after May 23,
  178  2019. However, nothing in this paragraph is intended to, nor may
  179  be construed to, overturn or abrogate or alter any existing
  180  orders duly entered into by any court of this state, as of the
  181  effective date of this act, which restrict or limit access to
  182  any photographs or video or audio recordings that depict or
  183  record the killing of a law enforcement officer who was acting
  184  in accordance with his or her official duties, or the killing of
  185  a victim of mass violence, or the killing of a minor.
  186         8. This paragraph applies only to such photographs and
  187  video and audio recordings held by an agency.
  188         9. This paragraph is subject to the Open Government Sunset
  189  Review Act in accordance with s. 119.15 and shall stand repealed
  190  on October 2, 2028 2024, unless reviewed and saved from repeal
  191  through reenactment by the Legislature.
  192         Section 2. (1)The Legislature finds that it is a public
  193  necessity that photographs and video and audio recordings that
  194  depict or record the killing of a minor be made confidential and
  195  exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  196  Article I of the State Constitution and that such exemption be
  197  applied retroactively. The Legislature finds that photographs
  198  and video and audio recordings that depict or record the killing
  199  of a minor render a graphic and often disturbing visual or aural
  200  representation of the deceased. Such photographs and video and
  201  audio recordings provide a view of the deceased in the final
  202  moments of life, in which they are often bruised, bloodied,
  203  broken, with bullet wounds or other wounds, lacerated,
  204  dismembered, or decapitated. As such, photographs and video and
  205  audio recordings that depict or record the killing of a minor
  206  are highly sensitive representations of the deceased which, if
  207  heard, viewed, copied, or publicized, could result in trauma,
  208  sorrow, humiliation, or emotional injury to the immediate family
  209  of the deceased and detract from the memory of the deceased. The
  210  Legislature recognizes that the existence of the Internet and
  211  the proliferation of personal computers and cellular telephones
  212  throughout the world encourages and promotes the wide
  213  dissemination of such photographs and video and audio recordings
  214  24 hours a day and that widespread unauthorized dissemination of
  215  such photographs and video and audio recordings would subject
  216  the immediate family of the deceased to continuous injury.
  217         (2)In addition to the emotional and mental injury that
  218  these photographs and video and audio recordings may cause
  219  family members, the Legislature is also concerned that
  220  dissemination of photographs and video and audio recordings that
  221  depict or record the killing of a minor is harmful to the
  222  public. The Legislature is concerned that the release of these
  223  photographs and video and audio recordings may educe violent
  224  acts by persons who have a mental illness or who are morally
  225  corrupt.
  226         Section 3. Sections 4 and 5 of this act may be cited as the
  227  “Rex and Brody Act.”
  228         Section 4. Section 406.135, Florida Statutes, is amended to
  229  read:
  230         406.135 Autopsies; confidentiality of photographs and video
  231  and audio recordings; confidentiality of reports of minor
  232  victims of domestic violence; exemption.—
  233         (1) As used in For the purpose of this section, the term:
  234         (a)“Domestic violence” has the same meaning as in s.
  235  741.28.
  236         (b) “Medical examiner” means any district medical examiner,
  237  associate medical examiner, or substitute medical examiner
  238  acting pursuant to this chapter, as well as any employee,
  239  deputy, or agent of a medical examiner or any other person who
  240  may obtain possession of a report, photograph, or audio or video
  241  recording of an autopsy in the course of assisting a medical
  242  examiner in the performance of his or her official duties.
  243         (c)“Minor” means a person younger than 18 years of age who
  244  has not had the disability of nonage removed pursuant to s.
  245  743.01 or s. 743.015.
  246         (2)(a) A photograph or video or audio recording of an
  247  autopsy held by a medical examiner is confidential and exempt
  248  from s. 119.07(1) and s. 24(a), Art. I of the State
  249  Constitution, except that a surviving spouse may view and copy a
  250  photograph or video recording or listen to or copy an audio
  251  recording of the deceased spouse’s autopsy. If there is no
  252  surviving spouse, then the surviving parents shall have access
  253  to such records. If there is no surviving spouse or parent, then
  254  an adult child shall have access to such records.
  255         (b)An autopsy report of a minor whose death was related to
  256  an act of domestic violence held by a medical examiner is
  257  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
  258  of the State Constitution, except that a surviving parent of the
  259  deceased minor may view and copy the autopsy report if the
  260  surviving parent did not commit the act of domestic violence
  261  which led to the minor’s death.
  262         (3)(a) The deceased’s surviving relative, with whom
  263  authority rests to obtain such records, may designate in writing
  264  an agent to obtain such records.
  265         (b) Notwithstanding subsection (2), a local governmental
  266  entity, or a state or federal agency, in furtherance of its
  267  official duties, pursuant to a written request, may:
  268         1. View or copy a photograph or video recording or may
  269  listen to or copy an audio recording of an autopsy;, and
  270         2.View or copy an autopsy report of a minor whose death
  271  was related to an act of domestic violence.
  272  
  273  Unless otherwise required in the performance of official their
  274  duties, the identity of the deceased shall remain confidential
  275  and exempt.
  276         (c) The custodian of the record, or his or her designee,
  277  may not permit any other person, except an agent designated in
  278  writing by the deceased’s surviving relative with whom authority
  279  rests to obtain such records, to view or copy an autopsy report
  280  of a minor whose death was related to an act of domestic
  281  violence or a such photograph or video recording of an autopsy
  282  or listen to or copy an audio recording of an autopsy without a
  283  court order.
  284         (4)(a) The court, upon a showing of good cause, may issue
  285  an order authorizing any person to view or copy an autopsy
  286  report of a minor whose death was related to an act of domestic
  287  violence or a photograph or video recording of an autopsy or to
  288  listen to or copy an audio recording of an autopsy and may
  289  prescribe any restrictions or stipulations that the court deems
  290  appropriate.
  291         (b) In determining good cause, the court shall consider
  292  whether such disclosure is necessary for the public evaluation
  293  of governmental performance; the seriousness of the intrusion
  294  into the family’s right to privacy and whether such disclosure
  295  is the least intrusive means available; and the availability of
  296  similar information in other public records, regardless of form.
  297         (c) In all cases, the viewing, copying, listening to, or
  298  other handling of an autopsy report of a minor whose death was
  299  related to an act of domestic violence or a photograph or video
  300  or audio recording of an autopsy must be under the direct
  301  supervision of the custodian of the record or his or her
  302  designee.
  303         (5)(a) A surviving spouse must shall be given reasonable
  304  notice of a petition filed with the court to view or copy a
  305  photograph or video recording of an autopsy or a petition to
  306  listen to or copy an audio recording, a copy of such petition,
  307  and reasonable notice of the opportunity to be present and heard
  308  at any hearing on the matter. If there is no surviving spouse,
  309  then such notice must be given to the parents of the deceased,
  310  and if there is the deceased has no living parent, then to the
  311  adult children of the deceased.
  312         (b)For an autopsy report of a minor whose death was
  313  related to an act of domestic violence, any surviving parent who
  314  did not commit the act of domestic violence which led to the
  315  minor’s death must be given reasonable notice of a petition
  316  filed with the court to view or copy the autopsy report, a copy
  317  of such petition, and reasonable notice of the opportunity to be
  318  present and heard at any hearing on the matter.
  319         (6)(a) Any custodian of an autopsy report of a minor whose
  320  death was related to an act of domestic violence or a photograph
  321  or video or audio recording of an autopsy who willfully and
  322  knowingly violates this section commits a felony of the third
  323  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  324  775.084.
  325         (b) Any person who willfully and knowingly violates a court
  326  order issued pursuant to this section commits a felony of the
  327  third degree, punishable as provided in s. 775.082, s. 775.083,
  328  or s. 775.084.
  329         (7) A criminal or administrative proceeding is exempt from
  330  this section, but unless otherwise exempted, is subject to all
  331  other provisions of chapter 119 unless otherwise exempted.,
  332  provided however that This section does not prohibit a court in
  333  a criminal or administrative proceeding upon good cause shown
  334  from restricting or otherwise controlling the disclosure of an
  335  autopsy, crime scene, or similar report, photograph, or video or
  336  audio recording recordings in the manner prescribed herein.
  337         (8) The exemptions in this section This exemption shall be
  338  given retroactive application.
  339         (9)This section is subject to the Open Government Sunset
  340  Review Act in accordance with s. 119.15 and shall stand repealed
  341  on October 2, 2028, unless reviewed and saved from repeal
  342  through reenactment by the Legislature.
  343         Section 5. The Legislature finds that it is a public
  344  necessity that autopsy reports of minors whose deaths were
  345  related to acts of domestic violence be made confidential and
  346  exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  347  Article I of the State Constitution. The Legislature finds that
  348  autopsy reports describe the deceased in a graphic and often
  349  disturbing fashion and that autopsy reports of minors whose
  350  deaths were related to acts of domestic violence may describe
  351  the deceased nude, bruised, bloodied, broken, with bullet wounds
  352  or other wounds, lacerated, dismembered, or decapitated. As
  353  such, these reports often contain highly sensitive descriptions
  354  of the deceased which, if heard, viewed, copied, or publicized,
  355  could result in trauma, sorrow, humiliation, or emotional injury
  356  to the immediate family and minor friends of the deceased, as
  357  well as injury to the memory of the deceased. The Legislature
  358  recognizes that the existence of the Internet and the
  359  proliferation of websites throughout the world encourages and
  360  promotes the wide dissemination of reports and publications 24
  361  hours a day and that widespread unauthorized dissemination of
  362  autopsy reports of minors whose deaths were related to acts of
  363  domestic violence would subject the immediate family and minor
  364  friends of the deceased to continuous injury. The Legislature
  365  further finds that the exemption provided in this act should be
  366  given retroactive application because it is remedial in nature.
  367         Section 6. This act shall take effect upon becoming a law.