CS/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 Section 24(a),
32Article I of the State Constitution, except that a surviving
33spouse of the decedent may view and copy any such photograph or
34video recording or listen to or copy any such audio recording.
35If there is no surviving spouse, then the surviving parents
36shall have access to such records. If there is no surviving
37spouse or parent, then an adult child shall have access to such
38records.
39     (3)(a)  The deceased's surviving relative, with whom
40authority rests to obtain such records, may designate in writing
41an agent to obtain such records.
42     (b)  A local governmental entity, or a state or federal
43agency, in furtherance of its official duties, pursuant to a
44written request, may view or copy a photograph or video
45recording or may listen to or copy an audio recording of the
46killing of a person and, unless otherwise required in the
47performance of their duties, the identity of the deceased shall
48remain confidential and exempt.
49     (c)  The custodian of the record, or his or her designee,
50may not permit any other person to view or copy such photograph
51or video recording or listen to or copy such audio recording
52without a court order.
53     (4)(a)  The court, upon a showing of good cause, may issue
54an order authorizing any person to view or copy a photograph or
55video recording that depicts or records the killing of a person
56or to listen to or copy an audio recording that depicts or
57records the killing of a person and may prescribe any
58restrictions or stipulations that the court deems appropriate.
59     (b)  In determining good cause, the court shall consider:
60     1.  Whether such disclosure is necessary for the public
61evaluation of governmental performance;
62     2.  The seriousness of the intrusion into the family's
63right to privacy and whether such disclosure is the least
64intrusive means available; and
65     3.  The availability of similar information in other public
66records, regardless of form.
67     (c)  In all cases, the viewing, copying, listening to, or
68other handling of a photograph or video or audio recording that
69depicts or records the killing of a person must be under the
70direct supervision of the custodian of the record or his or her
71designee.
72     (5)  A surviving spouse shall be given reasonable notice of
73a petition filed with the court to view or copy a photograph or
74video recording that depicts or records the killing of a person
75or to listen to or copy any such audio recording, a copy of such
76petition, and reasonable notice of the opportunity to be present
77and heard at any hearing on the matter. If there is no surviving
78spouse, then such notice must be given to the parents of the
79deceased and, if the deceased has no living parent, then to the
80adult children of the deceased.
81     (6)(a)  Any custodian of a photograph or video or audio
82recording that depicts or records the killing of a person who
83willfully and knowingly violates this section commits a felony
84of the third degree, punishable as provided in section 775.082,
85section 775.083, or section 775.084, Florida Statutes.
86     (b)  Any person who willfully and knowingly violates a
87court order issued pursuant to this section commits a felony of
88the third degree, punishable as provided in section 775.082,
89section 775.083, or section 775.084, Florida Statutes.
90     (c)  A criminal or administrative proceeding is exempt from
91this section but, unless otherwise exempted, is subject to all
92other provisions of chapter 119, Florida Statutes, provided
93however that this section does not prohibit a court in a
94criminal or administrative proceeding upon good cause shown from
95restricting or otherwise controlling the disclosure of a
96killing, crime scene, or similar photograph or video or audio
97recordings in the manner prescribed herein.
98     (7)  This exemption shall be given retroactive application
99and shall apply to all photographs or video or audio recordings
100that depict or record the killing of a person, regardless of
101whether the killing of the person occurred before, on, or after
102July 1, 2011. However, nothing herein is intended to, nor may be
103construed to, overturn or abrogate or alter any existing orders
104duly entered into by any court of this state, as of the
105effective date of this act, which restrict or limit access to
106any photographs or video or audio recordings that depict or
107record the killing of a person.
108     (8)  This section only applies to such photographs and
109video and audio recordings held by an agency as defined in
110section 119.011, Florida Statutes.
111     (9)  This section is subject to the Open Government Sunset
112Review Act in accordance with section 119.15, Florida Statutes,
113and shall stand repealed on October 2, 2016, unless reviewed and
114saved from repeal through reenactment by the Legislature.
115     Section 2.  The Legislature finds that is a public
116necessity that photographs and video and audio recordings that
117depict or record the killing of any person be made confidential
118and exempt from the requirements of section 119.07(1), Florida
119Statutes, and Section 24(a) of Article I of the State
120Constitution. The Legislature finds that photographs or video or
121audio recordings that depict or record the killing of any person
122render a visual or aural representation of the deceased in
123graphic and often disturbing fashion. Such photographs or video
124or audio recordings provide a view of the deceased in the final
125moments of life, often bruised, bloodied, broken, with bullet
126wounds or other wounds, cut open, dismembered, or decapitated.
127As such, photographs or video or audio recordings that depict or
128record the killing of any person are highly sensitive
129representations of the deceased which, if heard, viewed, copied
130or publicized, could result in trauma, sorrow, humiliation, or
131emotional injury to the immediate family of the deceased, as
132well as injury to the memory of the deceased. The Legislature
133recognizes that the existence of the World Wide Web and the
134proliferation of personal computers throughout the world
135encourages and promotes the wide dissemination of such
136photographs and video and audio recordings 24 hours a day and
137that widespread unauthorized dissemination of photographs and
138video and audio recordings would subject the immediate family of
139the deceased to continuous injury. The Legislature further
140recognizes that there continue to be other types of available
141information, such as crime scene reports, which are less
142intrusive and injurious to the immediate family members of the
143deceased and which continue to provide for public oversight. The
144Legislature further finds that the exemption provided in this
145act should be given retroactive application, except as otherwise
146provided, because it is remedial in nature.
147     Section 3.  This act shall take effect July 1, 2011.


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