Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. SB 404
       
       
       
       
       
       
                                Ì145616.Î145616                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/22/2023           .                                
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       The Committee on Rules (Hutson) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 24 and 25
    4  insert:
    5         Section 1. Paragraph (p) of subsection (2) of section
    6  119.071, Florida Statutes, is amended to read:
    7         119.071 General exemptions from inspection or copying of
    8  public records.—
    9         (2) AGENCY INVESTIGATIONS.—
   10         (p)1. As used in this paragraph, the term:
   11         a. “Killing of a law enforcement officer who was acting in
   12  accordance with his or her official duties” means all acts or
   13  events that cause or otherwise relate to the death of a law
   14  enforcement officer who was acting in accordance with his or her
   15  official duties, including any related acts or events
   16  immediately preceding or subsequent to the acts or events that
   17  were the proximate cause of death.
   18         b. “Killing of a victim of mass violence” means events that
   19  depict either a victim being killed or the body of a victim
   20  killed in an incident in which three or more persons, not
   21  including the perpetrator, are killed by the perpetrator of an
   22  intentional act of violence.
   23         c.“Killing of a minor” means all acts or events that cause
   24  or otherwise relate to the death of a victim who has not yet
   25  reached the age of eighteen years at the time of the death,
   26  including any related acts or events immediately preceding or
   27  subsequent to the acts or events that were the proximate cause
   28  of the death of a victim under the age of eighteen, events that
   29  depict a victim under the age of eighteen being killed, or
   30  events that depict the body of a victim under the age of
   31  eighteen who has been killed.
   32         2. A photograph or video or audio recording that depicts or
   33  records the killing of a law enforcement officer who was acting
   34  in accordance with his or her official duties, or the killing of
   35  a victim of mass violence, or the killing of a minor is
   36  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   37  of the State Constitution, except that a surviving spouse of the
   38  decedent may view and copy any such photograph or video
   39  recording or listen to or copy any such audio recording. If
   40  there is no surviving spouse, the surviving parents shall have
   41  access to such records. If there is no surviving spouse or
   42  parent, the adult children shall have access to such records.
   43  Nothing in this paragraph precludes a surviving spouse, parent,
   44  or adult child of the victim from sharing or publicly releasing
   45  such photograph or video or audio recording.
   46         3.a. The deceased’s surviving relative, with whom authority
   47  rests to obtain such records, may designate in writing an agent
   48  to obtain such records.
   49         b. A local governmental entity, or a state or federal
   50  agency, in furtherance of its official duties, pursuant to a
   51  written request, may view or copy a photograph or video
   52  recording or may listen to or copy an audio recording of the
   53  killing of a law enforcement officer who was acting in
   54  accordance with his or her official duties, or the killing of a
   55  victim of mass violence, or the killing of a minor, and, unless
   56  otherwise required in the performance of its duties, the
   57  identity of the deceased shall remain confidential and exempt.
   58         c. The custodian of the record, or his or her designee, may
   59  not permit any other person to view or copy such photograph or
   60  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 an
   63  order authorizing any person to view or copy a photograph or
   64  video recording that depicts or records the killing of a law
   65  enforcement officer who was acting in accordance with his or her
   66  official duties, or the killing of a victim of mass violence, or
   67  the killing of a minor, or to listen to or copy an audio
   68  recording that depicts or records the killing of a law
   69  enforcement officer who was acting in accordance with his or her
   70  official duties, or the killing of a victim of mass violence, or
   71  the killing of a minor, and may prescribe any restrictions or
   72  stipulations that the court deems appropriate.
   73         b. In determining good cause, the court shall consider:
   74         (I) Whether such disclosure is necessary for the public
   75  evaluation of governmental performance;
   76         (II) The seriousness of the intrusion into the family’s
   77  right to privacy and whether such disclosure is the least
   78  intrusive means available; and
   79         (III) The availability of similar information in other
   80  public records, regardless of form.
   81         c. In all cases, the viewing, copying, listening to, or
   82  other handling of a photograph or video or audio recording that
   83  depicts or records the killing of a law enforcement officer who
   84  was acting in accordance with his or her official duties, or the
   85  killing of a victim of mass violence, or the killing of a minor
   86  must be under the direct supervision of the custodian of the
   87  record or his or her designee.
   88         5. A surviving spouse shall be given reasonable notice of a
   89  petition filed with the court to view or copy a photograph or
   90  video recording that depicts or records the killing of a law
   91  enforcement officer who was acting in accordance with his or her
   92  official duties, or the killing of a victim of mass violence, or
   93  the killing of a minor, or to listen to or copy any such audio
   94  recording, a copy of such petition, and reasonable notice of the
   95  opportunity to be present and heard at any hearing on the
   96  matter. If there is no surviving spouse, such notice must be
   97  given to the parents of the deceased and, if the deceased has no
   98  surviving parent, to the adult children of the deceased.
   99         6.a. Any custodian of a photograph or video or audio
  100  recording that depicts or records the killing of a law
  101  enforcement officer who was acting in accordance with his or her
  102  official duties, or the killing of a victim of mass violence, or
  103  the killing of a minor who willfully and knowingly violates this
  104  paragraph commits a felony of the third degree, punishable as
  105  provided in s. 775.082, s. 775.083, or s. 775.084.
  106         b. Any person who willfully and knowingly violates a court
  107  order issued pursuant to this paragraph commits a felony of the
  108  third degree, punishable as provided in s. 775.082, s. 775.083,
  109  or s. 775.084.
  110         c. A criminal or administrative proceeding is exempt from
  111  this paragraph but, unless otherwise exempted, is subject to all
  112  other provisions of chapter 119; however, this paragraph does
  113  not prohibit a court in a criminal or administrative proceeding
  114  upon good cause shown from restricting or otherwise controlling
  115  the disclosure of a killing, crime scene, or similar photograph
  116  or video or audio recording in the manner prescribed in this
  117  paragraph.
  118         7. The exemption in this paragraph shall be given
  119  retroactive application and shall apply to all photographs or
  120  video or audio recordings that depict or record the killing of a
  121  law enforcement officer who was acting in accordance with his or
  122  her official duties, or the killing of a victim of mass
  123  violence, or the killing of a minor, regardless of whether the
  124  killing of the person occurred before, on, or after May 23,
  125  2019. However, nothing in this paragraph is intended to, nor may
  126  be construed to, overturn or abrogate or alter any existing
  127  orders duly entered into by any court of this state, as of the
  128  effective date of this act, which restrict or limit access to
  129  any photographs or video or audio recordings that depict or
  130  record the killing of a law enforcement officer who was acting
  131  in accordance with his or her official duties, or the killing of
  132  a victim of mass violence, or the killing of a minor.
  133         8. This paragraph applies only to such photographs and
  134  video and audio recordings held by an agency.
  135         9.a. This paragraph is subject to the Open Government
  136  Sunset Review Act in accordance with s. 119.15 and shall stand
  137  repealed on October 2, 2024, unless reviewed and saved from
  138  repeal through reenactment by the Legislature.
  139         b.The expansion of the public records exemption in
  140  subparagraph (p)2. to allow for the expunction of a photograph
  141  or video or audio recording that depicts or records the killing
  142  of a minor is subject to the Open Government Sunset Review Act
  143  in accordance with s. 119.15 and shall stand repealed on October
  144  2, 2028, unless reviewed and saved from repeal through
  145  reenactment by the Legislature. If the expansion of the
  146  exemption is not saved from repeal, this paragraph shall revert
  147  to that in existence on June 30, 2023, except that any
  148  amendments to this subsection other than by this act shall be
  149  preserved and continue to operate to the extent that such
  150  amendments are not dependent upon the portions of this
  151  subsection which expire pursuant to this paragraph.
  152         Section 2. (1)(a)The Legislature finds that it is a public
  153  necessity that photographs and video and audio recordings that
  154  depict or record the killing of a minor be made confidential and
  155  exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  156  Article I of the State Constitution. The Legislature finds that
  157  photographs and video and audio recordings that depict or record
  158  the killing of a minor render a graphic and often disturbing
  159  visual or aural representation of the deceased. Such photographs
  160  and video and audio recordings provide a view of the deceased in
  161  the final moments of life, in which they are often bruised,
  162  bloodied, broken, baring bullet wounds or other wounds,
  163  lacerated, dismembered, or decapitated. As such, photographs and
  164  video and audio recordings that depict or record the killing of
  165  a minor are highly sensitive representations of the deceased
  166  which, if heard, viewed, copied, or publicized, could result in
  167  trauma, sorrow, humiliation, or emotional injury to the
  168  immediate family of the deceased and detract from the memory of
  169  the deceased. The Legislature recognizes that the existence of
  170  the Internet and the proliferation of personal computers and
  171  cellular telephones throughout the world encourages and promotes
  172  the wide dissemination of such photographs and video and audio
  173  recordings 24 hours a day and that widespread unauthorized
  174  dissemination of such photographs and video and audio recordings
  175  would subject the immediate family of the deceased to continuous
  176  injury.
  177         (b)In addition to the emotional and mental injury that
  178  these photographs and video and audio recordings may cause
  179  family members, the Legislature is also concerned that
  180  dissemination of photographs and video and audio recordings that
  181  depict or record the killing of a minor is harmful to the
  182  public. The Legislature is concerned that the release of these
  183  photographs and video and audio recordings may educe violent
  184  acts by persons who have a mental illness or who are morally
  185  corrupt.
  186         (c)The Legislature further recognizes that other types of
  187  information, such as crime scene reports, continue to be
  188  available which are less intrusive and injurious to the
  189  immediate family of the deceased and continue to provide for
  190  public oversight. The Legislature further finds that the
  191  exemption provided in this act should be given retroactive
  192  application because it is remedial in nature.
  193  ================= T I T L E  A M E N D M E N T ================
  194  And the title is amended as follows:
  195         Delete line 2
  196  and insert:
  197         An act relating to public records; amending s.
  198         119.071, F.S.; defining the term “killing of a minor”;
  199         expanding an existing exemption from public records
  200         requirements for a photograph or a video or audio
  201         recording held by an agency which depicts or records
  202         the killing of a law enforcement officer or killing of
  203         a victim of mass violence to include a photograph or a
  204         video or audio recording held by an agency which
  205         depicts or records the killing of a minor; clarifying
  206         that a surviving spouse, parent, or adult child of the
  207         victim is not precluded from publicly releasing such
  208         photograph or video or audio recording; providing
  209         criminal penalties; providing retroactive
  210         applicability; providing for future legislative review
  211         and repeal of the exemption; conforming provisions to
  212         changes made by the act; providing a statement of
  213         public necessity; providing a short