Senate Bill sb1898
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Florida Senate - 2006 SB 1898
By Senators King and Smith
8-1391A-06
1 A bill to be entitled
2 An act relating to public records; amending s.
3 119.071, F.S.; creating an exemption from
4 public-records requirements for a record
5 consisting of any photograph or video recording
6 of the remains of a victim of a crime which is
7 criminal intelligence information or criminal
8 investigative information; providing that this
9 exemption applies to any such records that are
10 held before, on, or after the effective date of
11 the act; providing that a court may issue an
12 order authorizing a person who has shown good
13 cause to inspect or copy the record; requiring
14 that certain persons be given reasonable notice
15 of a petition filed with the court to inspect
16 or copy the record, a copy of the petition, and
17 a reasonable notice of the opportunity to be
18 present and heard at any hearing on the matter;
19 authorizing certain persons to inspect or copy
20 the photograph or video recording without a
21 court order; requiring segregation of the
22 photograph or video recording from other
23 records; requiring that the inspection or
24 copying of the photograph or video recording be
25 under the direct supervision of the custodian
26 of the photograph or video recording or the
27 custodian's designee; providing criminal
28 penalties for the unauthorized inspection or
29 copying of such records; providing for future
30 legislative review and repeal; providing a
31 statement of public necessity; transferring and
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1 amending s. 119.07(6), F.S.; providing an
2 exemption from public-records requirements for
3 information or records in a court file which
4 may reveal a part of the body of a person who
5 is a victim of a sexual offense under ch. 794,
6 ch. 800, or ch. 827, F.S., regardless of
7 whether the information or record reveals the
8 identity of the victim; providing an exemption
9 from public-records requirements for a
10 photograph, video recording, or audio recording
11 of an autopsy which is contained in a court
12 file; providing an exemption from
13 public-records requirements for the photograph
14 or video recording of the remains of a victim
15 of a crime which is criminal intelligence
16 information or criminal investigative
17 information if the record is part of a court
18 file; providing that such exemptions apply to
19 records held before, on, or after the effective
20 date of the act; requiring that records made
21 exempt from disclosure be segregated from other
22 records; requiring that records exempt from
23 disclosure be inspected or copied only under
24 the direct supervision of the clerk of the
25 court having custody of the records or under
26 the direct supervision of the clerk's designee;
27 prohibiting an employee of the clerk of the
28 court from allowing an unauthorized person to
29 inspect or copy such records; providing
30 criminal penalties; providing a statement of
31 public necessity; providing an effective date.
2
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1 Be It Enacted by the Legislature of the State of Florida:
2
3 Section 1. Present paragraph (j) of subsection (2) of
4 section 119.071, Florida Statutes, is redesignated as
5 paragraph (k), and a new paragraph (j) is added to that
6 subsection, to read:
7 119.071 General exemptions from inspection or copying
8 of public records.--
9 (2) AGENCY INVESTIGATIONS.--
10 (j)1. Any photograph or video recording of the remains
11 of a victim of a crime which is criminal intelligence
12 information or criminal investigative information is
13 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
14 of the State Constitution.
15 2. Upon a showing of good cause, a court may issue an
16 order authorizing a person to inspect or copy such photograph
17 or video recording if the record is not otherwise exempt from
18 inspection and copying. In its order, the court may prescribe
19 any restriction or stipulation it deems appropriate. In
20 determining good cause, the court shall consider whether such
21 disclosure is necessary for the public evaluation of
22 governmental performance, the seriousness of the intrusion
23 into the family's right to privacy and whether such disclosure
24 is the least intrusive means available, and the availability
25 of similar information in other public records, regardless of
26 form.
27 3. The surviving spouse of the deceased shall be given
28 reasonable notice of a petition filed with the court to
29 inspect or copy the photograph or video recording, a copy of
30 the petition, and reasonable notice of the opportunity to be
31 present and heard at any hearing on the matter. If there is no
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1 surviving spouse, notice and a copy of the petition shall be
2 provided to the deceased's parents. If there is no surviving
3 spouse or parent, notice and a copy of the petition shall be
4 provided to the deceased's adult children. If the surviving
5 relative authorized under this subparagraph to receive notice
6 and a copy of the petition designates in writing an agent to
7 receive notice and a copy of the petition, notice and a copy
8 of the petition shall be provided to that agent.
9 4. A local, state, or federal governmental agency or
10 entity, in furtherance of its official duties, may inspect or
11 copy such photograph or video recording without a court order
12 if the agency or entity submits a written request to the
13 custodian of the photograph or video recording. The photograph
14 or video recording shall retain its confidential and exempt
15 status when held by such local, state, or federal agency or
16 entity.
17 5. The custodian of such photograph or video recording
18 shall segregate such photograph or video recording from any
19 other records in the custodian's custody so that the
20 photograph or video recording is not commingled with other
21 records and inadvertently provided to a person who is not
22 authorized to inspect or copy the photograph or video
23 recording.
24 6. Unless authorized by this section or otherwise
25 authorized by law, a person may not inspect or copy a
26 photograph or video recording described in subparagraph 1. The
27 custodian of such photograph or video recording may not permit
28 the inspection or copying of the photograph or video recording
29 unless authorized by this section or otherwise authorized by
30 law. Inspection or copying of such photograph or video
31 recording must be under the direct supervision of the
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1 custodian of the photograph or video recording or under the
2 direct supervision of the custodian's designee. A custodian of
3 a photograph or video recording described in subparagraph 1.,
4 or the custodian's designee, who willfully and knowingly
5 permits the unauthorized inspection or copying of such
6 photograph or video recording commits a felony of the third
7 degree, punishable as provided in s. 775.082, s. 775.083, or
8 s. 775.084.
9 7. Any person who willfully and knowingly inspects or
10 copies a photograph or video recording described in
11 subparagraph 1. in violation of this section, or in violation
12 of a court order issued pursuant to this section, commits a
13 felony of the third degree, punishable as provided in s.
14 775.082, s. 775.083, or s. 775.084.
15 8. The exemption in subparagraph 1. applies to the
16 records that are held before, on, or after July 1, 2006.
17 9. Subparagraph 1. is subject to the Open Government
18 Sunset Review Act in accordance with s. 119.15, and shall
19 stand repealed on October 2, 2011, unless reviewed and saved
20 from repeal through reenactment by the Legislature.
21 Section 2. (1) The Legislature finds that it is a
22 public necessity that any photograph or video recording of the
23 remains of a victim of a crime which is criminal intelligence
24 information or criminal investigative information, whether
25 active or inactive, be made confidential and exempt from s.
26 119.07(1), Florida Statutes, and section 24(a) of Article I of
27 the State Constitution. The Legislature further finds that the
28 reasons that the Legislature provided for making photographs
29 and video and audio recordings of an autopsy confidential and
30 exempt pursuant to s. 406.135, Florida Statutes, also apply to
31 making photographs and video recordings of the remains of a
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1 victim of a crime confidential and exempt. Such records depict
2 the deceased in a disturbing fashion and may depict the
3 deceased nude, posed in a degrading manner, bruised, bloodied,
4 broken, burned, with bullet or other wounds, cut open,
5 ravaged, dismembered, decapitated, or decomposed. As such,
6 these records are highly sensitive depictions of the deceased
7 which, if viewed, copied, or publicized, could result in
8 trauma, sorrow, humiliation, or emotional injury to the
9 immediate family of the deceased, as well as injury to the
10 memory of the deceased.
11 (2) The Legislature intends to make these records
12 confidential and exempt in order to correct problems
13 associated with the public dissemination of these records.
14 Specifically, the Legislature notes that the existence of the
15 World Wide Web and the proliferation of personal information
16 throughout the world encourages and promotes the wide
17 dissemination of these records 24 hours a day, and widespread
18 unauthorized dissemination of these records would subject the
19 immediate family of the deceased to continuous injury. Some
20 people who might seek disclosure of the records would not be
21 engaged in the gathering of news or other activities that have
22 been deemed important to the pursuit of truth or fundamental
23 to our democracy, but rather would seek disclosure of the
24 records only because of their morbid fascination about them or
25 their desire to be shocked or horrified by them. Such
26 disclosure would traumatize and injure the immediate family
27 members of a deceased crime victim and degrade human dignity.
28 In Campus Communications, Inc. v. Earnhardt, 821 So.2d 388,
29 397 (Fla. 5th DCA 2002), the Fifth District Court of Appeal
30 noted that the Legislature had found the public display of
31 photographs and video and audio recordings of an autopsy to be
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1 "morally reprehensible and anathema to the citizens of
2 Florida." The Legislature finds that the public display of the
3 photographs and video recordings of the remains of a victim of
4 a crime are no less morally reprehensible and anathema to the
5 citizens of Florida.
6 (3) The Legislature further finds that the public
7 dissemination of the records made confidential and exempt by
8 this act would be no less extreme and outrageous than the
9 alleged conduct of a television station in broadcasting the
10 remains of an abducted six-year-old child, which the Fifth
11 District Court of Appeal in Armstrong v. H.C. Communications,
12 Inc., 575 So.2d 280, 282 (Fla. 5th DCA 1991) concluded would
13 constitute the tort of outrageousness: "We have no difficulty
14 in concluding that reasonable persons in the community could
15 find that the alleged conduct . . . was outrageous in
16 character and exceeded the bounds of decency so as to be
17 intolerable to a civilized community."
18 (4) The Legislature notes that when these records are
19 admitted into evidence, information other than the records
20 themselves is available which describes what is depicted in
21 the records, is less injurious to the immediate family members
22 of the deceased, and continues to provide for public
23 oversight. For example, the trial transcript describes the
24 introduction of the records into evidence. Further, if experts
25 testify about the information in the records, that information
26 will be part of the trial transcript as will any disagreement
27 between the prosecutor and defense attorney, or between
28 experts for the prosecution and experts for the defense, over
29 what is depicted in the records.
30 (5) The Legislature further finds that the exemption
31 provided in this act should be given retroactive application
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1 because it is remedial in nature. The Legislature has
2 indicated that its intent in creating this exemption is to
3 correct problems associated with the public dissemination of
4 the photograph or video recording of the remains of the victim
5 of a crime. The retroactive application of this exemption does
6 not impair any vested right. In Campus Communications, Inc. v.
7 Earnhardt, 821 So.2d 398, the court disagreed with the
8 appellant's assertion that it had a vested right to inspect
9 and copy the autopsy photographs of Dale Earnhardt "for two
10 reasons: 1) the right to inspect and copy public records is a
11 right subject to divestment by enactment of statutory
12 exemptions by the Legislature; and 2) the rights provided
13 under the Public Records Act are public rights."
14 (6) The Legislature further finds that preventing
15 injury to the immediate family members of the deceased is a
16 compelling governmental interest. The Legislature also finds
17 that the immediate family members of the deceased have a
18 privacy interest in the future disclosure of the photographs
19 and video recordings of the deceased's remains. In Barron v.
20 Florida Freedom Newspapers, 531 So.2d 113, 116 (Fla. 1988), a
21 case dealing with closure of court proceedings to media
22 representatives, the Florida Supreme Court found that "under
23 appropriate circumstances, the constitutional right of privacy
24 established in Florida by the adoption of article I, section
25 23, could form a constitutional basis for closure under (e)
26 and (f)." The Legislature believes the court's reasoning in
27 Barron extends to the disclosure of the photographs and video
28 recordings of the remains of a victim of a crime and the
29 substantial injury such disclosure will inflict on the
30 immediate family members of the deceased.
31
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1 (7) The Legislature further finds that the judicial
2 branch recognizes in its own rules the need for restricting
3 the disclosure of certain records. Rule 2.051(c)(7), Florida
4 Rules of Judicial Administration, provides that "records of
5 the judicial branch shall be confidential" if those records
6 have been "made confidential under the Florida and United
7 States Constitutions and Florida and federal law," and Rule
8 2.051(c)(9)(A)(v), Florida Rules of Judicial Administration,
9 provides that "records of the judicial branch shall be
10 confidential" to "avoid substantial injury to third parties."
11 (8) In order to protect and balance the rights or
12 interests involved in restricting disclosure of these records
13 with the rights or interests involved in disclosing these
14 records, the Legislature intends to provide that a court may
15 allow these records to be inspected or copied if good cause is
16 demonstrated to the court. This process is identical to the
17 process for the limited disclosure of photographs and video or
18 audio recordings of an autopsy in s. 406.335, Florida
19 Statutes, which was upheld by Fifth District Court of Appeal
20 in the case involving Campus Communications, Inc.
21 Section 3. Subsection (6) of section 119.07, Florida
22 Statutes, is transferred, redesignated as section 119.075,
23 Florida Statutes, and amended to read:
24 119.075 Records in court files; exemptions from
25 inspection or copying; criminal penalties.--
26 (1)(6) Nothing in this chapter shall be construed to
27 exempt from subsection (1) a public record that was made a
28 part of a court file in a criminal or civil case and that is
29 not specifically closed by order of court, except:
30 (a) A public record that was prepared by an agency
31 attorney or at his or her express direction as made exempt by
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1 as provided in s. 119.071(1)(d); and (f), (2)(d),(e), and (f),
2 and (4)(c) and except
3 (b) Data processing software obtained by an agency
4 under a licensing agreement as made exempt by s.
5 119.071(1)(f);
6 (c) Any information revealing surveillance techniques
7 or procedures or personnel as made exempt by s. 119.071(2)(d);
8 (d) Any information revealing the substance of a
9 confession of a person arrested as made exempt by s.
10 119.071(2)(e);
11 (e) Any information revealing the identify of a
12 confidential informant or confidential source as made exempt
13 by s. 119.071(2)(f);
14 (f) Any information revealing undercover personnel of
15 any criminal justice agency as made exempt by s.
16 119.071(4)(c);
17 (g)1. Information or records that may reveal the
18 identity of a person who is a victim of a sexual offense under
19 chapter 794, chapter 800, or chapter 827, as made exempt by s.
20 119.07(2)(h)1.; or as provided in s. 119.071(2)(h).
21 2. Information or records that may reveal a part of
22 the body of a person who is a victim of a sexual offense under
23 chapter 794, chapter 800, or chapter 827, regardless of
24 whether the information or record reveals the identity of the
25 victim as made exempt by s. 119.071(2)(h)2.;
26 (h) Any photograph, video recording, or audio
27 recording of an autopsy as made exempt by s. 406.135,
28 regardless of the exception provided in s. 406.135(3)(c); and
29 (i) Any photograph or video recording of the remains
30 of a victim of a crime which is criminal investigative
31
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1 information or criminal intelligence information as made
2 exempt by s. 119.071(2)(j)1.
3 (2) The exemptions provided in subparagraphs (1)(g)2.,
4 (1)(h), and (1)(i) apply to the records specified in these
5 exemptions which are held before, on, or after July 1, 2006.
6 (3) The clerk of the court having custody of any
7 record described in this section shall segregate the record
8 from any other record in the clerk's custody so that it is not
9 commingled with the other records and inadvertently provided
10 to a person who is not authorized to inspect or copy the
11 record. Inspection or copying of such record must be under the
12 direct supervision of the clerk of the court having custody of
13 such record or under the direct supervision of the clerk's
14 designee. An employee of the clerk of the court having custody
15 of any record described in this section may not permit a
16 person to inspect or copy such record unless authorized by
17 this section or otherwise authorized by law.
18 (4)(a) Any employee of the clerk of the court having
19 custody of any record described in this section who willfully
20 and knowingly permits the unauthorized inspection or copying
21 of such record commits a felony of the third degree,
22 punishable as provided in s. 775.082, s. 775.083, or s.
23 775.084.
24 (b) Any person who willfully and knowingly inspects or
25 copies any record described in this section in violation of
26 this section or in violation of a court order issued pursuant
27 to this section commits a felony of the third degree,
28 punishable as provided in s. 775.082, s. 775.083, or s.
29 775.084.
30 Section 4. (1) The Legislature finds that it is a
31 public necessity that the following public records that are
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1 made a part of a court file in a criminal or civil case be
2 made confidential and exempt from s. 119.07(1), Florida
3 Statutes, and section 24(a) of Article I of the State
4 Constitution:
5 (a) Information or records that may reveal a part of
6 the body of a person who is a victim of a sexual offense under
7 chapter 794, chapter 800, or chapter 827, Florida Statutes,
8 regardless of whether the information or records reveal the
9 identity of the victim, as made exempt by s. 119.071(2)(h)2.,
10 Florida Statutes.
11 (b) Any photograph, video recording, or audio
12 recording of an autopsy as made exempt by s. 406.135, Florida
13 Statutes, regardless of the exception provided in s.
14 406.135(3)(c).
15 (c) Any photograph or video recording of the remains
16 of a victim of a crime which is criminal intelligence
17 information or criminal investigative information, whether
18 active or inactive as made exempt by s. 119.071(2)(j)1.,
19 Florida Statutes.
20 (2) The Legislature further finds that the reasons
21 that the Legislature provided for making photographs and video
22 and audio recordings of an autopsy confidential and exempt
23 pursuant to s. 406.135, Florida Statutes, also apply to making
24 information or records that reveal a part of the body of a
25 person who is a living victim of any of the described sexual
26 offenses confidential and exempt when the information and
27 records are made a part of a court file in a criminal or civil
28 case. Such information or records depict the victim in a
29 disturbing fashion and may depict the victim nude or with
30 private body parts exposed or partially exposed. Such
31 information or records may also depict the victim bruised,
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1 bloodied, broken, burned, with bullet or other wounds, or cut
2 open. Additionally, such information or records may identify
3 the victim, thereby placing the victim at risk of harassment
4 or attack by the victim's assailant. As such, these records
5 are highly sensitive depictions of the victim which, if
6 viewed, copied, or publicized, could result in trauma, sorrow,
7 humiliation, or emotional injury to the victim, as well as
8 place the victim at risk of harassment or attack by the
9 victim's assailant.
10 (3) The Legislature further finds that the reasons for
11 making the records of an autopsy confidential and exempt
12 pursuant to s. 406.135, Florida Statutes, also apply to making
13 the following records confidential and exempt when they are
14 made a part of a court file in a criminal or civil case:
15 information or records that reveal a part of the body of a
16 person who is a deceased victim of the described sexual
17 offenses; any photograph, video recording, or audio recording
18 of an autopsy; and any photograph or video recording of the
19 remains of a victim of a crime which is criminal intelligence
20 information or criminal investigative information. Such
21 records depict the deceased in a disturbing fashion and may
22 depict the deceased nude, posed in a degrading manner,
23 bruised, bloodied, broken, burned, with bullet or other
24 wounds, cut open, ravaged, dismembered, decapitated, or
25 decomposed. As such, these records are highly sensitive
26 depictions of the deceased which, if viewed, copied, or
27 publicized, could result in trauma, sorrow, humiliation, or
28 emotional injury to the immediate family of the deceased, as
29 well as injury to the memory of the deceased.
30 (4) The Legislature intends to make all of the records
31 described in this section confidential and exempt when made a
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1 part of the court file in a criminal or civil case in order to
2 correct problems associated with the public dissemination of
3 these records. Specifically, the Legislature notes that the
4 existence of the World Wide Web and the proliferation of
5 personal information throughout the world encourages and
6 promotes the wide dissemination of these records 24 hours a
7 day. Such widespread unauthorized dissemination of these
8 records would continuously injure a living sexual offense
9 victim and the immediate family of a deceased person subject
10 to an autopsy or the victim of a crime. Some people who might
11 seek disclosure of records depicting the body parts of a
12 living sexual offense victim would not be engaged in the
13 gathering of news or other activities that have been deemed
14 important to the pursuit of truth or fundamental to our
15 democracy but would rather seek disclosure of the records for
16 their purely salacious interest in them or to harass or attack
17 the victim. In the case of the records relating to a deceased
18 person who is the subject of an autopsy or a victim of a
19 crime, some people would seek disclosure of these records only
20 because of their morbid fascination with them or their desire
21 to be shocked or horrified by them. Such disclosure would
22 traumatize and injure such sexual offense victim and the
23 immediate family members of such deceased person and degrade
24 human dignity. In Campus Communications, Inc. v. Earnhardt,
25 821 So.2d 388, 397 (Fla. 5th DCA 2002), the Fifth District
26 Court of Appeal noted that the Legislature had found the
27 public display of photographs and video and audio recordings
28 of an autopsy to be "morally reprehensible and anathema to the
29 citizens of Florida." The Legislature finds that the public
30 display of the records it seeks to make confidential and
31
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1 exempt are no less "morally reprehensible and anathema to the
2 citizens of Florida."
3 (5) The Legislature further finds that the public
4 dissemination of the records made confidential and exempt by
5 this act would be no less extreme and outrageous than the
6 alleged conduct of a television station in broadcasting the
7 remains of an abducted six-year-old child, which the Fifth
8 District Court of Appeal in Armstrong v. H.C. Communications,
9 Inc., 575 So.2d 280, 282 (Fla. 5th DCA 1991) concluded would
10 constitute the tort of outrageousness: "We have no difficulty
11 in concluding that reasonable persons in the community could
12 find that the alleged conduct . . . was outrageous in
13 character and exceeded the bounds of decency so as to be
14 intolerable to a civilized community."
15 (6) The Legislature notes that when these records are
16 admitted into evidence, information other than the records
17 themselves is available which describes what is depicted in
18 the records, is less injurious to the immediate family members
19 of the deceased, and continues to provide for public
20 oversight. For example, the trial transcript describes the
21 introduction of the records into evidence. Further, if experts
22 testify about the information in the records, that information
23 will be part of the trial transcript as will any disagreement
24 between the prosecutor and defense attorney, or between
25 experts for the prosecution and experts for the defense, over
26 what is depicted in the records. As regards an autopsy, there
27 is a written report of the findings of the autopsy.
28 (7) The Legislature further finds that the exemptions
29 provided in this act should be given retroactive application
30 because they are remedial in nature. The Legislature has
31 indicated that its intent in creating these exemptions is to
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1 correct problems associated with the public dissemination of
2 the exempted records. The retroactive application of these
3 exemptions does not impair any vested right. In Campus
4 Communications, Inc. v. Earnhardt, 821 So.2d at 398, the court
5 disagreed with the appellant's assertion that it had a vested
6 right to inspect and copy the autopsy photographs of Dale
7 Earnhardt "for two reasons: 1) the right to inspect and copy
8 public records is a right subject to divestment by enactment
9 of statutory exemptions by the Legislature; and 2) the rights
10 provided under the Public Records Act are public rights."
11 (8) The Legislature further finds that preventing
12 injury to a sexual offense victim and the immediate family
13 members of a deceased person is a compelling governmental
14 interest. The Legislature also finds that these persons have a
15 privacy interest in the future disclosure of the described
16 records. In Barron v. Florida Freedom Newspapers, 531 So.2d
17 113, 116 (Fla. 1988), a case dealing with closure of court
18 proceedings to media representatives, the Florida Supreme
19 Court found that "under appropriate circumstances, the
20 constitutional right of privacy established in Florida by the
21 adoption of article I, section 23, could form a constitutional
22 basis for closure under (e) and (f)." The Legislature believes
23 the court's reasoning in Barron extends to the disclosure of
24 the described records and the substantial injury such
25 disclosure will inflict on a sexual offense victim or the
26 immediate family members of a deceased person.
27 (9) The Legislature further finds that the judicial
28 branch recognizes in its own rules the need for restricting
29 the disclosure of certain records. Rule 2.051(c)(7), Florida
30 Rules of Judicial Administration, provides that "records of
31 the judicial branch shall be confidential" if those records
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1 have been "made confidential under the Florida and United
2 States Constitutions and Florida and federal law," and Rule
3 2.051(c)(9)(A)(v), Florida Rules of Judicial Administration,
4 provides that "records of the judicial branch shall be
5 confidential" to "avoid substantial injury to third parties."
6 (10) The Legislature further finds that Rule 2.051,
7 Florida Rules of Judicial Administration, provides a procedure
8 and a process to protect and balance the rights or interests
9 involved in restricting disclosure of these records with the
10 rights or interests involved in disclosing these records.
11 Section 5. This act shall take effect July 1, 2006.
12
13 *****************************************
14 SENATE SUMMARY
15 Provides exemptions from public-records requirements for
photographs or video recordings of the remains of a
16 victim of a crime which are criminal intelligence
information or criminal investigative information.
17 Provides for a court to authorize disclosure upon a
showing of good cause. Requires that certain notice be
18 provided before a hearing on disclosure. Requires that
such photographs and recordings be segregated from other
19 records. Provides an exemption from public-records
requirements for records, photographs, or video
20 recordings that are part of a court file and that reveal
the victim of a sexual offense, an autopsy, or certain
21 victims of crimes. Requires that such records be
segregated. Provides penalties for the unlawful
22 disclosure of such records. Provides for review of the
exemptions under the Open Government Sunset Review Act.
23 (See bill for details.)
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