HB 411

1
A bill to be entitled
2An act relating to public records; providing a definition;
3providing an exemption from public records requirements
4for photographs and video and audio recordings that depict
5or record the killing of a person; authorizing access to
6such photographs or video or audio recordings by specified
7members of the immediate family of the deceased subject of
8the photographs or video or audio recordings; providing
9for access to such records by local governmental entities
10or state or federal agencies in furtherance of official
11duties; providing for access pursuant to court order;
12providing guidelines of the court in issuing an order
13authorizing such photographs or video or audio recordings
14to be viewed, copied, or heard; requiring specified notice
15of a court petition to view or copy such records;
16providing penalties; exempting criminal or administrative
17proceedings from the act; providing for retroactive
18application; providing for future legislative review and
19repeal of the exemption; providing a finding of public
20necessity; providing an effective date.
21
22Be It Enacted by the Legislature of the State of Florida:
23
24     Section 1.  (1)  As used in this section, the term "killing
25of a person" means all acts or events that cause or otherwise
26relate to the death of any human being, including any related
27acts or events immediately preceding or subsequent to the acts
28or events that were the proximate cause of death.
29     (2)  A photograph or video or audio recording that depicts
30or records the killing of a person is confidential and exempt
31from section 119.07(1), Florida Statutes, and s. 24(a), Art. I
32of the State Constitution, except that a surviving spouse of the
33decedent may view and copy any such photograph or video
34recording or listen to or copy any such audio recording. If
35there is no surviving spouse, then the surviving parents shall
36have access to such records. If there is no surviving spouse or
37parent, then an adult child shall have access to such records.
38     (3)(a)  The deceased's surviving relative, with whom
39authority rests to obtain such records, may designate in writing
40an agent to obtain such records.
41     (b)  A local governmental entity, or a state or federal
42agency, in furtherance of its official duties, pursuant to a
43written request, may view or copy a photograph or video
44recording or may listen to or copy an audio recording of the
45killing of a person and, unless otherwise required in the
46performance of their duties, the identity of the deceased shall
47remain confidential and exempt.
48     (c)  The custodian of the record, or his or her designee,
49may not permit any other person to view or copy such photograph
50or video recording or listen to or copy such audio recording
51without a court order.
52     (4)(a)  The court, upon a showing of good cause, may issue
53an order authorizing any person to view or copy a photograph or
54video recording that depicts or records the killing of a person
55or to listen to or copy an audio recording that depicts or
56records the killing of a person and may prescribe any
57restrictions or stipulations that the court deems appropriate.
58     (b)  In determining good cause, the court shall consider:
59     1.  Whether such disclosure is necessary for the public
60evaluation of governmental performance;
61     2.  The seriousness of the intrusion into the family's
62right to privacy and whether such disclosure is the least
63intrusive means available; and
64     3.  The availability of similar information in other public
65records, regardless of form.
66     (c)  In all cases, the viewing, copying, listening to, or
67other handling of a photograph or video or audio recording that
68depicts or records the killing of a person must be under the
69direct supervision of the custodian of the record or his or her
70designee.
71     (5)  A surviving spouse shall be given reasonable notice of
72a petition filed with the court to view or copy a photograph or
73video recording that depicts or records the killing of a person
74or to listen to or copy any such audio recording, a copy of such
75petition, and reasonable notice of the opportunity to be present
76and heard at any hearing on the matter. If there is no surviving
77spouse, then such notice must be given to the parents of the
78deceased and, if the deceased has no living parent, then to the
79adult children of the deceased.
80     (6)(a)  Any custodian of a photograph or video or audio
81recording that depicts or records the killing of a person who
82willfully and knowingly violates this section commits a felony
83of the third degree, punishable as provided in section 775.082,
84section 775.083, or section 775.084, Florida Statutes.
85     (b)  Any person who willfully and knowingly violates a
86court order issued pursuant to this section commits a felony of
87the third degree, punishable as provided in section 775.082,
88section 775.083, or section 775.084, Florida Statutes.
89     (c)  A criminal or administrative proceeding is exempt from
90this section but, unless otherwise exempted, is subject to all
91other provisions of chapter 119, Florida Statutes, provided
92however that this section does not prohibit a court in a
93criminal or administrative proceeding upon good cause shown from
94restricting or otherwise controlling the disclosure of a
95killing, crime scene, or similar photograph or video or audio
96recordings in the manner prescribed herein.
97     (7)  This exemption shall be given retroactive application
98and shall apply to all photographs or video or audio recordings
99that depict or record the killing of a person, regardless of
100whether the killing of the person occurred before, on, or after
101July 1, 2011.
102     (8)  This section is subject to the Open Government Sunset
103Review Act in accordance with s. 119.15, Florida Statutes, and
104shall stand repealed on October 2, 2016, unless reviewed and
105saved from repeal through reenactment by the Legislature.
106     Section 2.  The Legislature finds that is a public
107necessity that photographs and video and audio recordings that
108depict or record the killing of any person be made confidential
109and exempt from the requirements of section 119.07(1), Florida
110Statutes, and Section 24(a) of Article I of the State
111Constitution. The Legislature finds that photographs or video or
112audio recordings that depict or record the killing of any person
113render a visual or aural representation of the deceased in
114graphic and often disturbing fashion. Such photographs or video
115or audio recordings provide a view of the deceased in the final
116moments of life, often bruised, bloodied, broken, with bullet
117wounds or other wounds, cut open, dismembered, or decapitated.
118As such, photographs or video or audio recordings that depict or
119record the killing of any person are highly sensitive
120representations of the deceased which, if heard, viewed, copied
121or publicized, could result in trauma, sorrow, humiliation, or
122emotional injury to the immediate family of the deceased, as
123well as injury to the memory of the deceased. The Legislature
124recognizes that the existence of the World Wide Web and the
125proliferation of personal computers throughout the world
126encourages and promotes the wide dissemination of such
127photographs and video and audio recordings 24 hours a day and
128that widespread unauthorized dissemination of photographs and
129video and audio recordings would subject the immediate family of
130the deceased to continuous injury. The Legislature further
131recognizes that there continue to be other types of available
132information, such as crime scene reports, which are less
133intrusive and injurious to the immediate family members of the
134deceased and which continue to provide for public oversight. The
135Legislature further finds that the exemption provided in this
136act should be given retroactive application because it is
137remedial in nature.
138     Section 3.  This act shall take effect July 1, 2011.


CODING: Words stricken are deletions; words underlined are additions.