Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 972
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/19/2017           .                                

       The Committee on Judiciary (Steube) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Between lines 154 and 155
    4  insert:
    5         Section 5. Section 794.11, Florida Statutes, is created to
    6  read:
    7         794.11 Investigative subpoenas in certain cases involving
    8  child victims.—
    9         (1) DEFINITIONS.—As used in this section, the term:
   10         (a) “Child” means a person younger than 18 years of age.
   11         (b) “Child sexual offender” means a person required to
   12  register as a sexual predator under s. 775.21 or as a sexual
   13  offender under s. 943.0435 if at least one of the offenses that
   14  qualified the person for such registration requirement involved
   15  a victim who was a child at the time of the offense.
   16         (c) “Criminal justice agency” means a law enforcement
   17  agency, court, or prosecutor in this state.
   18         (d) “Sexual exploitation or abuse of a child” means a
   19  criminal offense based on any conduct described in s. 39.01(70).
   20         (2) AUTHORIZATION.—
   21         (a) A criminal justice agency may issue in writing and
   22  cause to be served a subpoena requiring the production of any
   23  record, object, or other information or testimony described in
   24  paragraph (b) in any investigation of:
   25         1. An offense involving the sexual exploitation or abuse of
   26  a child;
   27         2. A sexual offense allegedly committed by a child sexual
   28  offender who has not registered as required under s. 775.21 or
   29  s. 943.0435; or
   30         3. An offense under chapter 847 involving a child victim
   31  which is not otherwise included in subparagraph 1. or
   32  subparagraph 2.
   33         (b) A subpoena issued under this section may require:
   34         1. The production of any record, object, or other
   35  information relevant to the investigation.
   36         2. Testimony by the custodian of the record, object, or
   37  other information concerning its production and authenticity.
   38         (3) CONTENTS OF SUBPOENAS.—A subpoena issued under this
   39  section must describe any record, object, or other information
   40  required to be produced and prescribe a reasonable return date
   41  by which the record, object, or other information can be
   42  assembled and made available.
   43         (4) WITNESS EXPENSES.—Witnesses subpoenaed under this
   44  section shall be reimbursed for fees and mileage at the same
   45  rate at which witnesses in the courts of this state are
   46  reimbursed.
   47         (5) PETITIONS BEFORE RETURN DATE.—At any time before the
   48  return date specified in the subpoena, the recipient of the
   49  subpoena may, in the circuit court of the county in which the
   50  recipient conducts business or resides, petition for an order
   51  modifying or setting aside the subpoena or the requirement for
   52  nondisclosure of certain information under subsection (6).
   53         (6) NONDISCLOSURE.—
   54         (a)1. If a subpoena issued under this section is
   55  accompanied by a written certification under subparagraph 2. and
   56  notice under paragraph (c), the recipient of the subpoena, and a
   57  person to whom information is disclosed under subparagraph
   58  (b)1., may not disclose to any person for a period of 180 days
   59  the existence or contents of the subpoena.
   60         2. The nondisclosure requirement in subparagraph 1. applies
   61  if the criminal justice agency that issued the subpoena
   62  certifies in writing that the disclosure may result in one or
   63  more of the following circumstances:
   64         a. Endangering a person’s life or physical safety;
   65         b. Encouraging a person’s flight from prosecution;
   66         c. Destruction of or tampering with evidence;
   67         d. Intimidation of potential witnesses; or
   68         e. Otherwise seriously jeopardizing an investigation or
   69  unduly delaying a trial.
   70         (b)1. A recipient of a subpoena may disclose information
   71  subject to the nondisclosure requirement in subparagraph (a)1.
   72  to:
   73         a. A person to whom disclosure is necessary in order to
   74  comply with the subpoena;
   75         b. An attorney in order to obtain legal advice or
   76  assistance regarding the subpoena; or
   77         c. Any other person as authorized by the criminal justice
   78  agency that issued the subpoena.
   79         2. A recipient of a subpoena who discloses to a person
   80  described in subparagraph 1. information subject to the
   81  nondisclosure requirement shall notify such person of the
   82  nondisclosure requirement by providing the person with a copy of
   83  the subpoena. A person to whom information is disclosed under
   84  subparagraph 1. is subject to the nondisclosure requirement in
   85  subparagraph (a)1.
   86         3. At the request of the criminal justice agency that
   87  issued the subpoena, a recipient of a subpoena who discloses or
   88  intends to disclose to a person described in sub-subparagraph
   89  1.a. or sub-subparagraph 1.b. information subject to the
   90  nondisclosure requirement shall provide to the criminal justice
   91  agency the identity of the person to whom such disclosure was or
   92  will be made.
   93         (c)1. The nondisclosure requirement imposed under paragraph
   94  (a) is subject to judicial review under subsection (13).
   95         2. A subpoena issued under this section, in connection with
   96  which a nondisclosure requirement under paragraph (a) is
   97  imposed, must include:
   98         a. Notice of the nondisclosure requirement and the
   99  availability of judicial review.
  100         b. Notice that a violation of the nondisclosure requirement
  101  is subject to the penalties provided in paragraph (11)(b).
  102         (d) The nondisclosure requirement in paragraph (a) may be
  103  extended under subsection (13).
  104         (7) EXCEPTIONS TO PRODUCTION.—A subpoena issued under this
  105  section may not require the production of anything that is
  106  protected from production under the standards applicable to a
  107  subpoena duces tecum issued by a court of this state.
  108         (8) RETURN OF RECORDS AND OBJECTS.—If a case or proceeding
  109  resulting from the production of any record, object, or other
  110  information under this section does not arise within a
  111  reasonable time after such production, the criminal justice
  112  agency to which it was delivered shall, upon written demand made
  113  by the person producing it, return the record, object, or other
  114  information to such person, unless the record was a copy and not
  115  an original.
  116         (9) TIME OF PRODUCTION.—A subpoena issued under this
  117  section may require production of any record, object, or other
  118  information as soon as possible, but the recipient of the
  119  subpoena must have at least 24 hours after he or she is served
  120  to produce the record, object, or other information.
  121         (10) SERVICE.—A subpoena issued under this section may be
  122  served as provided in chapter 48.
  123         (11) ENFORCEMENT.—
  124         (a) If a recipient of a subpoena under this section refuses
  125  to comply with the subpoena, the criminal justice agency may
  126  invoke the aid of any circuit court described in subsection (5)
  127  or of the circuit court of the county in which the authorized
  128  investigation is being conducted. Such court may issue an order
  129  requiring the recipient of a subpoena to appear before the
  130  criminal justice agency that issued the subpoena to produce any
  131  record, object, or other information or to testify concerning
  132  the production and authenticity of the record, object, or other
  133  information. Any failure to comply with an order under this
  134  paragraph may be punished by the court as a contempt of court.
  135  All process in any such case may be served in any county in
  136  which such person may be found.
  137         (b) A recipient of a subpoena, or a person to whom
  138  information is disclosed under subparagraph(6)(b)1., who
  139  knowingly violates:
  140         1. A nondisclosure requirement imposed under paragraph
  141  (6)(a) commits a noncriminal violation punishable as provided in
  142  s. 775.083. Each person to whom a disclosure is made in
  143  violation of this subparagraph constitutes a separate violation
  144  subject to a separate fine.
  145         2. A nondisclosure requirement ordered by the court under
  146  this section may be held in contempt of court.
  147         (12) IMMUNITY.—Notwithstanding any other law, any person,
  148  including any officer, agent, or employee, receiving a subpoena
  149  under this section who complies in good faith with the subpoena
  150  and produces or discloses any record, object, or other
  151  information sought is not liable in any court in this state to
  152  any customer or other person for such production or disclosure.
  154         (a)1.a. If a recipient of a subpoena under this section, or
  155  a person to whom information is disclosed under subparagraph
  156  (6)(b)1., wishes to have a court review a nondisclosure
  157  requirement under subsection (6), such recipient or person may
  158  notify the criminal justice agency issuing the subpoena or file
  159  a petition for judicial review in the circuit court described in
  160  subsection (5).
  161         b. Within 30 days after the date on which the criminal
  162  justice agency receives the notification under sub-subparagraph
  163  a., the criminal justice agency shall apply for an order
  164  prohibiting the disclosure of the existence or contents of the
  165  subpoena. An application under this sub-subparagraph may be
  166  filed in the circuit court described in subsection (5) or in the
  167  circuit court of the county in which the authorized
  168  investigation is being conducted.
  169         c. The nondisclosure requirement shall remain in effect
  170  during the pendency of proceedings relating to the requirement.
  171         d. A circuit court that receives a petition under sub
  172  subparagraph a. or an application under sub-subparagraph b.
  173  shall rule on such petition or application as expeditiously as
  174  possible.
  175         2. An application for a nondisclosure order or extension
  176  thereof or a response to a petition filed under this paragraph
  177  must include a certification from the criminal justice agency
  178  that issued the subpoena indicating that the disclosure of such
  179  information may result in one or more of the circumstances
  180  described in subparagraph (6)(a)2.
  181         3. A circuit court shall issue a nondisclosure order or
  182  extension thereof under this paragraph if it determines that
  183  there is reason to believe that disclosure of such information
  184  may result in one or more of the circumstances described in
  185  subparagraph (6)(a)2.
  186         4. Upon a showing that any of the circumstances described
  187  in subparagraph (6)(a)2. continues to exist, a circuit court may
  188  issue an ex parte order extending a nondisclosure order imposed
  189  under this section for an additional 180 days. There is no limit
  190  on the number of nondisclosure extensions that may be granted
  191  under this subparagraph.
  192         (b) In all proceedings under this subsection, subject to
  193  any right to an open hearing in a contempt proceeding, a circuit
  194  court must close any hearing to the extent necessary to prevent
  195  the unauthorized disclosure of a request for records, objects,
  196  or other information made to any person under this section.
  197  Petitions, filings, records, orders, certifications, and
  198  subpoenas must also be kept under seal to the extent and as long
  199  as necessary to prevent the unauthorized disclosure of any
  200  information under this section.
  202  ================= T I T L E  A M E N D M E N T ================
  203  And the title is amended as follows:
  204         Delete line 19
  205  and insert:
  206         specified information, by a specified date; creating
  207         s. 794.11, F.S.; defining terms; authorizing subpoenas
  208         in certain investigations of sexual offenses involving
  209         child victims; specifying the purpose of such
  210         subpoenas; requiring a subpoena to contain certain
  211         information; requiring the reimbursement of subpoenaed
  212         witnesses; authorizing the recipient of the subpoena
  213         to petition a court; prohibiting the disclosure of the
  214         existence or contents of a subpoena under certain
  215         circumstances; providing exceptions; requiring certain
  216         notice to be provided in a subpoena that contains a
  217         nondisclosure requirement; exempting from production
  218         certain records, objects, and other information;
  219         providing for the return of records, objects, and
  220         other information produced; specifying timeframes
  221         within which records, objects, and other information
  222         must be returned; providing for service and
  223         enforcement of the subpoenas; providing penalties for
  224         a violation of the subpoena or nondisclosure
  225         requirement; providing immunity for certain persons
  226         complying with the subpoenas in certain circumstances;
  227         providing for judicial review, and extensions, of such
  228         nondisclosure requirement; amending