Florida Senate - 2019                                    SB 1146
       
       
        
       By Senator Bean
       
       
       
       
       
       4-01298-19                                            20191146__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         406.136, F.S.; defining the term “killing of a
    4         person”; expanding an exemption from public records
    5         requirements for a photograph or video or audio
    6         recording held by an agency which depicts or records
    7         the killing of a law enforcement officer to include a
    8         photograph or video or audio recording held by an
    9         agency which depicts or records the killing of a
   10         person; specifying that the exemption from public
   11         records requirements does not apply to the killing of
   12         a person in the care and custody of a state agency;
   13         providing for future legislative review and repeal of
   14         the exemption; providing a statement of public
   15         necessity; providing retroactive application;
   16         providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Section 406.136, Florida Statutes, is amended to
   21  read:
   22         406.136 A photograph or video or audio recording that
   23  depicts or records the killing of a person law enforcement
   24  officer who was acting in accordance with his or her official
   25  duties.—
   26         (1) As used in this section, the term “killing of a person”
   27  “killing of a law enforcement officer who was acting in
   28  accordance with his or her official duties” means all acts or
   29  events that cause or otherwise relate to the death of any human
   30  being a law enforcement officer who was acting in accordance
   31  with his or her official duties, including any related acts or
   32  events immediately preceding or subsequent to the acts or events
   33  that were the proximate cause of death. The term does not
   34  include the killing of a person in the care and custody of a
   35  state agency.
   36         (2) A photograph or video or audio recording that depicts
   37  or records the killing of a person law enforcement officer who
   38  was acting in accordance with his or her official duties is
   39  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   40  of the State Constitution, except that a surviving spouse of the
   41  deceased decedent may view and copy any such photograph or video
   42  recording or listen to or copy any such audio recording. If
   43  there is no surviving spouse, then the surviving parents shall
   44  have access to such records. If there is no surviving spouse or
   45  parent, the then an adult children child shall have access to
   46  such records.
   47         (3)(a) The deceased’s surviving relative, with whom
   48  authority rests to obtain such records, may designate in writing
   49  an agent to obtain such records.
   50         (b) A local governmental entity, or a state or federal
   51  agency, in furtherance of its official duties, pursuant to a
   52  written request, may view or copy a photograph or video
   53  recording or may listen to or copy an audio recording of the
   54  killing of a person law enforcement officer who was acting in
   55  accordance with his or her official duties and, unless otherwise
   56  required in the performance of its their duties, the identity of
   57  the deceased shall remain confidential and exempt.
   58         (c) The custodian of the record, or his or her designee,
   59  may not permit any other person to view or copy such photograph
   60  or video recording or listen to or copy such audio recording
   61  without a court order.
   62         (4)(a) The court, upon a showing of good cause, may issue
   63  an order authorizing any person to view or copy a photograph or
   64  video recording that depicts or records the killing of a person
   65  law enforcement officer who was acting in accordance with his or
   66  her official duties or to listen to or copy an audio recording
   67  that depicts or records the killing of a person law enforcement
   68  officer who was acting in accordance with his or her official
   69  duties and may prescribe any restrictions or stipulations that
   70  the court deems appropriate.
   71         (b) In determining good cause, the court shall consider:
   72         1. Whether such disclosure is necessary for the public
   73  evaluation of governmental performance;
   74         2. The seriousness of the intrusion into the family’s right
   75  to privacy and whether such disclosure is the least intrusive
   76  means available; and
   77         3. The availability of similar information in other public
   78  records, regardless of form.
   79         (c) In all cases, the viewing, copying, listening to, or
   80  other handling of a photograph or video or audio recording that
   81  depicts or records the killing of a person law enforcement
   82  officer who was acting in accordance with his or her official
   83  duties must be under the direct supervision of the custodian of
   84  the record or his or her designee.
   85         (5) A surviving spouse shall be given reasonable notice of
   86  a petition filed with the court to view or copy a photograph or
   87  video recording that depicts or records the killing of a person
   88  law enforcement officer who was acting in accordance with his or
   89  her official duties or to listen to or copy any such audio
   90  recording, a copy of such petition, and reasonable notice of the
   91  opportunity to be present and heard at any hearing on the
   92  matter. If there is no surviving spouse, then such notice must
   93  be given to the parents of the deceased and, if the deceased has
   94  no surviving living parent, then to the adult children of the
   95  deceased.
   96         (6)(a) Any custodian of a photograph or video or audio
   97  recording that depicts or records the killing of a person law
   98  enforcement officer who was acting in accordance with his or her
   99  official duties who willfully and knowingly violates this
  100  section commits a felony of the third degree, punishable as
  101  provided in s. 775.082, s. 775.083, or s. 775.084.
  102         (b) Any person who willfully and knowingly violates a court
  103  order issued pursuant to this section commits a felony of the
  104  third degree, punishable as provided in s. 775.082, s. 775.083,
  105  or s. 775.084.
  106         (c) A criminal or administrative proceeding is exempt from
  107  this section but, unless otherwise exempted, is subject to all
  108  other provisions of chapter 119;, provided, however, that this
  109  section does not prohibit a court in a criminal or
  110  administrative proceeding upon good cause shown from restricting
  111  or otherwise controlling the disclosure of a killing, crime
  112  scene, or similar photograph or video or audio recording
  113  recordings in the manner prescribed in this section herein.
  114         (7) The This exemption in this section shall be given
  115  retroactive application and shall apply to all photographs or
  116  video or audio recordings that depict or record the killing of a
  117  person law enforcement officer who was acting in accordance with
  118  his or her official duties, regardless of whether the killing of
  119  the person occurred before, on, or after July 1, 2011. However,
  120  this section nothing herein is not intended to, and nor may not
  121  be construed to, overturn or abrogate or alter any existing
  122  orders duly entered into by any court of this state, as of the
  123  effective date of this act, which restrict or limit access to
  124  any photographs or video or audio recordings that depict or
  125  record the killing of a person law enforcement officer who was
  126  acting in accordance with his or her official duties.
  127         (8) This section only applies to such photographs and video
  128  and audio recordings held by an agency as defined in s. 119.011.
  129         (9)This section is subject to the Open Government Sunset
  130  Review Act in accordance with s. 119.15 and shall stand repealed
  131  on October 2, 2024, unless reviewed and saved from repeal
  132  through reenactment by the Legislature.
  133         Section 2. (1)The Legislature finds that it is a public
  134  necessity that photographs and video and audio recordings that
  135  depict or record the killing of a person be made confidential
  136  and exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  137  Article I of the State Constitution. The Legislature finds that
  138  photographs and video and audio recordings that depict or record
  139  the killing of a person render a graphic and often disturbing
  140  visual or aural representation of the deceased. Such photographs
  141  and video and audio recordings provide a view of the deceased in
  142  the final moments of life, in which he or she is often bruised,
  143  bloodied, broken, bearing bullet wounds or other wounds,
  144  lacerated, dismembered, or decapitated. As such, photographs and
  145  video and audio recordings that depict or record the killing of
  146  a person are highly sensitive representations of the deceased
  147  which, if heard, viewed, copied, or publicized, could result in
  148  trauma, sorrow, humiliation, or emotional injury to the
  149  immediate family of the deceased and could detract from the
  150  memory of the deceased. The Legislature recognizes that the
  151  existence of the Internet and the proliferation of personal
  152  computers and cellular telephones throughout the world
  153  encourages and promotes the wide dissemination of such
  154  photographs and video and audio recordings and that widespread
  155  unauthorized dissemination of such photographs and video and
  156  audio recordings would subject the immediate family of the
  157  deceased to continuous injury.
  158         (2)The Legislature further recognizes that there continues
  159  to be other types of available information, such as crime scene
  160  reports, which are less intrusive and injurious to the immediate
  161  family of the deceased and which continue to provide for public
  162  oversight. The Legislature further finds that the exemption
  163  provided in this act should be given retroactive application
  164  because it is remedial in nature.
  165         Section 3. This act shall take effect upon becoming a law.