Florida Senate - 2017                                     SB 968
       
       
        
       By Senator Bracy
       
       
       
       
       
       11-00947-17                                            2017968__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         406.136, F.S.; expanding a public records exemption
    4         for photographs, videos, or audio recordings that
    5         depict or record the killing of a law enforcement
    6         officer to include the killing of any person;
    7         redefining a term; expanding restrictions on the
    8         viewing, copying, listening to, or other handling of a
    9         photograph or video or audio recording that depicts
   10         the killing of any person rather than only depicting
   11         the killing of a law enforcement officer who was
   12         acting in accordance with his or her official duties;
   13         expanding a public records exemption to include
   14         records depicting the killing of any person; providing
   15         retroactive application of the exemption; providing a
   16         statement of public necessity; providing for
   17         retroactive application; providing an effective date.
   18          
   19  Be It Enacted by the Legislature of the State of Florida:
   20  
   21         Section 1. Section 406.136, Florida Statutes, is amended to
   22  read:
   23         406.136 A photograph or video or audio recording that
   24  depicts or records the killing of a person law enforcement
   25  officer who was acting in accordance with his or her official
   26  duties.—
   27         (1) As used in this section, the term “killing of a person
   28  law enforcement officer who was acting in accordance with his or
   29  her official duties” means all acts or events that cause or
   30  otherwise relate to the death of a person law enforcement
   31  officer who was acting in accordance with his or her official
   32  duties, including any related acts or events immediately
   33  preceding or subsequent to the acts or events that were the
   34  proximate cause of death.
   35         (2) A photograph or video or audio recording that depicts
   36  or records the killing of a person law enforcement officer who
   37  was acting in accordance with his or her official duties is
   38  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   39  of the State Constitution, except that a surviving spouse of the
   40  decedent may view and copy any such photograph or video
   41  recording or listen to or copy any such audio recording. If
   42  there is no surviving spouse, then the surviving parents shall
   43  have access to such records. If there is no surviving spouse or
   44  parent, then an adult child shall have access to such records.
   45         (3)(a) The deceased’s surviving relative, with whom
   46  authority rests to obtain such records, may designate in writing
   47  an agent to obtain such records.
   48         (b) An employee or agent of a local governmental entity, or
   49  a state or federal agency, in furtherance of its official
   50  duties, pursuant to a written request, may view or copy a
   51  photograph or video recording or may listen to or copy an audio
   52  recording of the killing of a person law enforcement officer who
   53  was acting in accordance with his or her official duties and,
   54  unless otherwise required in the performance of its their
   55  duties, the identity of the deceased shall remain confidential
   56  and exempt.
   57         (c) The custodian of the record, or his or her designee,
   58  may not permit any other person to view or copy such photograph
   59  or video recording or listen to or copy such audio recording
   60  without a court order.
   61         (4)(a) The court, upon a showing of good cause, may issue
   62  an order authorizing any person to view or copy a photograph or
   63  video recording that depicts or records the killing of a person
   64  law enforcement officer who was acting in accordance with his or
   65  her official duties or to listen to or copy an audio recording
   66  that depicts or records the killing of a person law enforcement
   67  officer who was acting in accordance with his or her official
   68  duties and may prescribe any restrictions or stipulations that
   69  the court deems appropriate.
   70         (b) In determining good cause, the court shall consider:
   71         1. Whether such disclosure is necessary for the public
   72  evaluation of governmental performance;
   73         2. The seriousness of the intrusion into the family’s right
   74  to privacy and whether such disclosure is the least intrusive
   75  means available; and
   76         3. The availability of similar information in other public
   77  records, regardless of form.
   78         (c) In all cases, the viewing, copying, listening to, or
   79  other handling of a photograph or video or audio recording that
   80  depicts or records the killing of a person law enforcement
   81  officer who was acting in accordance with his or her official
   82  duties must be under the direct supervision of the custodian of
   83  the record or his or her designee.
   84         (5) A surviving spouse shall be given reasonable notice of
   85  a petition filed with the court to view or copy a photograph or
   86  video recording that depicts or records the killing of a person
   87  law enforcement officer who was acting in accordance with his or
   88  her official duties or to listen to or copy any such audio
   89  recording, a copy of such petition, and reasonable notice of the
   90  opportunity to be present and heard at any hearing on the
   91  matter. If there is no surviving spouse, then such notice must
   92  be given to the parents of the deceased and, if the deceased has
   93  no living parent, then to the adult children of the deceased.
   94         (6)(a) Any custodian of a photograph or video or audio
   95  recording that depicts or records the killing of a person law
   96  enforcement officer who was acting in accordance with his or her
   97  official duties who willfully and knowingly violates this
   98  section commits a felony of the third degree, punishable as
   99  provided in s. 775.082, s. 775.083, or s. 775.084.
  100         (b) Any person who willfully and knowingly violates a court
  101  order issued pursuant to this section commits a felony of the
  102  third degree, punishable as provided in s. 775.082, s. 775.083,
  103  or s. 775.084.
  104         (c) A criminal or administrative proceeding is exempt from
  105  this section but, unless otherwise exempted, is subject to all
  106  other provisions of chapter 119, provided however that this
  107  section does not prohibit a court in a criminal or
  108  administrative proceeding upon good cause shown from restricting
  109  or otherwise controlling the disclosure of a killing, crime
  110  scene, or similar photograph or video or audio recordings in the
  111  manner prescribed herein.
  112         (7) This exemption shall be given retroactive application
  113  and shall apply to all photographs or video or audio recordings
  114  that depict or record the killing of a person law enforcement
  115  officer who was acting in accordance with his or her official
  116  duties, regardless of whether the killing of the person occurred
  117  before, on, or after the effective date of the exemption July 1,
  118  2011. However, nothing herein is intended to, nor may be
  119  construed to, overturn or abrogate or alter any existing orders
  120  duly entered into by any court of this state, as of the
  121  effective date of this act, which restrict or limit access to
  122  any photographs or video or audio recordings that depict or
  123  record the killing of a person law enforcement officer who was
  124  acting in accordance with his or her official duties.
  125         (8) This section only applies to such photographs and video
  126  and audio recordings held by an agency as defined in s. 119.011.
  127         Section 2. The Legislature finds that is a public necessity
  128  that photographs and video and audio recordings that depict or
  129  record the killing of any person be made confidential and exempt
  130  from the requirements of section 119.07(1), Florida Statutes,
  131  and s. 24(a), Art. I of the State Constitution before, on, or
  132  after the effective date of the exemption. The Legislature finds
  133  that photographs or video or audio recordings that depict or
  134  record the killing of any person render a visual or aural
  135  representation of the deceased in graphic and often disturbing
  136  fashion. Such photographs or video or audio recordings provide a
  137  view of the deceased in the final moments of life, often
  138  bruised, bloodied, broken, with bullet wounds or other wounds,
  139  cut open, dismembered, or decapitated. As such, photographs or
  140  video or audio recordings that depict or record the killing of
  141  any person are highly sensitive representations of the deceased
  142  which, if heard, viewed, copied or publicized, could result in
  143  trauma, sorrow, humiliation, or emotional injury to the
  144  immediate family of the deceased, as well as injury to the
  145  memory of the deceased. The Legislature recognizes that the
  146  existence of the Internet and the proliferation of cellular
  147         phones throughout the world encourages and promotes the
  148  wide dissemination of such photographs and video and audio
  149  recordings 24 hours a day and that widespread unauthorized
  150  dissemination of photographs and video and audio recordings
  151  would subject the immediate family of the deceased to continuous
  152  injury. The Legislature further recognizes that there continue
  153  to be other types of available information, such as crime scene
  154  reports, which are less intrusive and injurious to the immediate
  155  family members of the deceased and which continue to provide for
  156  public oversight. The Legislature further finds that the
  157  exemption provided in this act should be given retroactive
  158  application, except as otherwise provided, because it is
  159  remedial in nature.
  160         Section 3. This act shall take effect July 1, 2017.