ENROLLED 2015 Legislature CS for CS for CS for SB 248, 1st Engrossed 2015248er 1 2 An act relating to public records; amending s. 3 119.071, F.S.; defining the terms “body camera,” “law 4 enforcement officer,” and “personal representative”; 5 providing that a body camera recording is confidential 6 and exempt from public records requirements under 7 certain circumstances; providing exceptions; requiring 8 a law enforcement agency to retain body camera 9 recordings for at least a specified period; providing 10 for retroactive application; providing for future 11 legislative review and repeal of the exemption; 12 providing a statement of public necessity; providing 13 an effective date. 14 15 Be It Enacted by the Legislature of the State of Florida: 16 17 Section 1. Paragraph (l) is added to subsection (2) of 18 section 119.071, Florida Statutes, to read: 19 119.071 General exemptions from inspection or copying of 20 public records.— 21 (2) AGENCY INVESTIGATIONS.— 22 (l)1. As used in this paragraph, the term: 23 a. “Body camera” means a portable electronic recording 24 device that is worn on a law enforcement officer’s body and that 25 records audio and video data in the course of the officer 26 performing his or her official duties and responsibilities. 27 b. “Law enforcement officer” has the same meaning as 28 provided in s. 943.10. 29 c. “Personal representative” means a parent, a court 30 appointed guardian, an attorney, or an agent of, or a person 31 holding a power of attorney for, a person recorded by a body 32 camera. If a person depicted in the recording is deceased, the 33 term also means the personal representative of the estate of the 34 deceased person; the deceased person’s surviving spouse, parent, 35 or adult child; the deceased person’s attorney or agent; or the 36 parent or guardian of a surviving minor child of the deceased. 37 An agent must possess written authorization of the recorded 38 person to act on his or her behalf. 39 2. A body camera recording, or a portion thereof, is 40 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I 41 of the State Constitution if the recording: 42 a. Is taken within the interior of a private residence; 43 b. Is taken within the interior of a facility that offers 44 health care, mental health care, or social services; or 45 c. Is taken in a place that a reasonable person would 46 expect to be private. 47 3. Notwithstanding subparagraph 2., a body camera recording 48 may be disclosed by a law enforcement agency: 49 a. In furtherance of its official duties and 50 responsibilities; or 51 b. To another governmental agency in the furtherance of its 52 official duties and responsibilities. 53 4. A body camera recording, or a portion thereof, shall be 54 disclosed by a law enforcement agency: 55 a. To a person recorded by a body camera; however, a law 56 enforcement agency may disclose only those portions that are 57 relevant to the person’s presence in the recording; 58 b. To the personal representative of a person recorded by a 59 body camera; however, a law enforcement agency may disclose only 60 those portions that are relevant to the represented person’s 61 presence in the recording; 62 c. To a person not depicted in a body camera recording if 63 the recording depicts a place in which the person lawfully 64 resided, dwelled, or lodged at the time of the recording; 65 however, a law enforcement agency may disclose only those 66 portions that record the interior of such a place. 67 d. Pursuant to a court order. 68 (I) In addition to any other grounds the court may consider 69 in determining whether to order that a body camera recording be 70 disclosed, the court shall consider whether: 71 (A) Disclosure is necessary to advance a compelling 72 interest; 73 (B) The recording contains information that is otherwise 74 exempt or confidential and exempt under the law; 75 (C) The person requesting disclosure is seeking to obtain 76 evidence to determine legal issues in a case in which the person 77 is a party; 78 (D) Disclosure would reveal information regarding a person 79 that is of a highly sensitive personal nature; 80 (E) Disclosure may harm the reputation or jeopardize the 81 safety of a person depicted in the recording; 82 (F) Confidentiality is necessary to prevent a serious and 83 imminent threat to the fair, impartial, and orderly 84 administration of justice; 85 (G) The recording could be redacted to protect privacy 86 interests; and 87 (H) There is good cause to disclose all or portions of a 88 recording. 89 (II) In any proceeding regarding the disclosure of a body 90 camera recording, the law enforcement agency that made the 91 recording shall be given reasonable notice of hearings and shall 92 be given an opportunity to participate. 93 5. A law enforcement agency must retain a body camera 94 recording for at least 90 days. 95 6. The exemption provided in subparagraph 2. applies 96 retroactively. 97 7. This exemption does not supersede any other public 98 records exemption that existed before or is created after the 99 effective date of this exemption. Those portions of a recording 100 which are protected from disclosure by another public records 101 exemption shall continue to be exempt or confidential and 102 exempt. 103 8. This paragraph is subject to the Open Government Sunset 104 Review Act in accordance with s. 119.15 and shall stand repealed 105 on October 2, 2020, unless reviewed and saved from repeal 106 through reenactment by the Legislature. 107 Section 2. (1) The Legislature finds that it is a public 108 necessity that the following types of body camera recordings are 109 made confidential and exempt from s. 119.07(1), Florida 110 Statutes, and s. 24(a), Article I of the State Constitution: 111 recordings taken within the interior of a private residence; 112 recordings taken within the interior of a facility that offers 113 health care, mental health care, or social services; and 114 recordings taken in a place that a reasonable person would 115 expect to be private. 116 (2) The Legislature recognizes the increased prevalence of 117 body cameras being used by law enforcement officers. Body 118 cameras preserve information that has the potential to assist 119 both law enforcement officers’ and the public’s ability to 120 review the circumstances surrounding an event in which law 121 enforcement intervention occurs. 122 (3) However, the Legislature also finds that, in certain 123 instances, audio and video recorded by body cameras is 124 significantly more likely to capture highly sensitive personal 125 information than other types of law enforcement recordings or 126 documents. The Legislature finds that public disclosure of these 127 recordings could have an undesirable chilling effect. People who 128 know they are being recorded by a body camera may be unwilling 129 to cooperate fully with law enforcement officers if they know 130 that a body camera recording can be made publicly available to 131 anyone else. People may also be less likely to call a law 132 enforcement agency for services if their sensitive personal 133 information or the circumstances that necessitate a law 134 enforcement agency’s involvement are subject to public 135 dissemination as a body camera recording. The Legislature also 136 finds that body camera recordings could be used for criminal 137 purposes if they were available upon request. This exemption 138 from public records requirements allows law enforcement officers 139 to more effectively and efficiently administer their duties, 140 which would otherwise be significantly impaired. The Legislature 141 finds that these concerns regarding the impact of the public 142 records requirements for body camera recordings not only 143 necessitate the exemption of the recordings from public records 144 requirements, but also outweigh any public benefit that may be 145 derived from their disclosure. 146 Section 3. This act shall take effect July 1, 2015.