CS/HB 411 2011
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A bill to be entitled 1
An act relating to public records; providing a definition; 2 providing an exemption from public records requirements 3 for photographs and video and audio recordings that depict 4 or record the killing of a person; authorizing access to 5 such photographs or video or audio recordings by specified 6 members of the immediate family of the deceased subject of 7 the photographs or video or audio recordings; providing 8 for access to such records by local governmental entities 9 or state or federal agencies in furtherance of official 10 duties; providing for access pursuant to court order; 11 providing guidelines of the court in issuing an order 12 authorizing such photographs or video or audio recordings 13 to be viewed, copied, or heard; requiring specified notice 14 of a court petition to view or copy such records; 15 providing penalties; exempting criminal or administrative 16 proceedings from the act; providing for retroactive 17 application; providing for future legislative review and 18 repeal of the exemption; providing a finding of public 19 necessity; providing an effective date. 20
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Be It Enacted by the Legislature of the State of Florida: 22
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Section 1. (1) As used in this section, the term "killing 24 of a person" means all acts or events that cause or otherwise 25 relate to the death of any human being, including any related 26 acts or events immediately preceding or subsequent to the acts 27 or events that were the proximate cause of death. 28
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(2) A photograph or video or audio recording that depicts 29 or records the killing of a person is confidential and exempt 30 from section 119.07(1), Florida Statutes, and Section 24(a), 31 Article I of the State Constitution, except that a surviving 32 spouse of the decedent may view and copy any such photograph or 33 video recording or listen to or copy any such audio recording. 34 If there is no surviving spouse, then the surviving parents 35 shall have access to such records. If there is no surviving 36 spouse or parent, then an adult child shall have access to such 37 records. 38
(3)(a) The deceased's surviving relative, with whom 39 authority rests to obtain such records, may designate in writing 40 an agent to obtain such records. 41
(b) A local governmental entity, or a state or federal 42 agency, in furtherance of its official duties, pursuant to a 43 written request, may view or copy a photograph or video 44 recording or may listen to or copy an audio recording of the 45 killing of a person and, unless otherwise required in the 46 performance of their duties, the identity of the deceased shall 47 remain confidential and exempt. 48
(c) The custodian of the record, or his or her designee, 49 may not permit any other person to view or copy such photograph 50 or video recording or listen to or copy such audio recording 51 without a court order. 52
(4)(a) The court, upon a showing of good cause, may issue 53 an order authorizing any person to view or copy a photograph or 54 video recording that depicts or records the killing of a person 55 or to listen to or copy an audio recording that depicts or 56
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records the killing of a person and may prescribe any 57 restrictions or stipulations that the court deems appropriate. 58
(b) In determining good cause, the court shall consider: 59
1. Whether such disclosure is necessary for the public 60 evaluation of governmental performance; 61
2. The seriousness of the intrusion into the family's 62 right to privacy and whether such disclosure is the least 63 intrusive means available; and 64
3. The availability of similar information in other public 65 records, regardless of form. 66
(c) In all cases, the viewing, copying, listening to, or 67 other handling of a photograph or video or audio recording that 68 depicts or records the killing of a person must be under the 69 direct supervision of the custodian of the record or his or her 70 designee. 71
(5) A surviving spouse shall be given reasonable notice of 72 a petition filed with the court to view or copy a photograph or 73 video recording that depicts or records the killing of a person 74 or to listen to or copy any such audio recording, a copy of such 75 petition, and reasonable notice of the opportunity to be present 76 and heard at any hearing on the matter. If there is no surviving 77 spouse, then such notice must be given to the parents of the 78 deceased and, if the deceased has no living parent, then to the 79 adult children of the deceased. 80
(6)(a) Any custodian of a photograph or video or audio 81 recording that depicts or records the killing of a person who 82 willfully and knowingly violates this section commits a felony 83
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of the third degree, punishable as provided in section 775.082, 84 section 775.083, or section 775.084, Florida Statutes. 85
(b) Any person who willfully and knowingly violates a 86 court order issued pursuant to this section commits a felony of 87 the third degree, punishable as provided in section 775.082, 88 section 775.083, or section 775.084, Florida Statutes. 89
(c) A criminal or administrative proceeding is exempt from 90 this section but, unless otherwise exempted, is subject to all 91 other provisions of chapter 119, Florida Statutes, provided 92 however that this section does not prohibit a court in a 93 criminal or administrative proceeding upon good cause shown from 94 restricting or otherwise controlling the disclosure of a 95 killing, crime scene, or similar photograph or video or audio 96 recordings in the manner prescribed herein. 97
(7) This exemption shall be given retroactive application 98 and shall apply to all photographs or video or audio recordings 99 that depict or record the killing of a person, regardless of 100 whether the killing of the person occurred before, on, or after 101 July 1, 2011. However, nothing herein is intended to, nor may be 102 construed to, overturn or abrogate or alter any existing orders 103 duly entered into by any court of this state, as of the 104 effective date of this act, which restrict or limit access to 105 any photographs or video or audio recordings that depict or 106 record the killing of a person. 107
(8) This section only applies to such photographs and 108 video and audio recordings held by an agency as defined in 109 section 119.011, Florida Statutes. 110
(9) This section is subject to the Open Government Sunset 111
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Review Act in accordance with section 119.15, Florida Statutes, 112 and shall stand repealed on October 2, 2016, unless reviewed and 113 saved from repeal through reenactment by the Legislature. 114
Section 2. The Legislature finds that is a public 115 necessity that photographs and video and audio recordings that 116 depict or record the killing of any person be made confidential 117 and exempt from the requirements of section 119.07(1), Florida 118 Statutes, and Section 24(a) of Article I of the State 119 Constitution. The Legislature finds that photographs or video or 120 audio recordings that depict or record the killing of any person 121 render a visual or aural representation of the deceased in 122 graphic and often disturbing fashion. Such photographs or video 123 or audio recordings provide a view of the deceased in the final 124 moments of life, often bruised, bloodied, broken, with bullet 125 wounds or other wounds, cut open, dismembered, or decapitated. 126 As such, photographs or video or audio recordings that depict or 127 record the killing of any person are highly sensitive 128 representations of the deceased which, if heard, viewed, copied 129 or publicized, could result in trauma, sorrow, humiliation, or 130 emotional injury to the immediate family of the deceased, as 131 well as injury to the memory of the deceased. The Legislature 132 recognizes that the existence of the World Wide Web and the 133 proliferation of personal computers throughout the world 134 encourages and promotes the wide dissemination of such 135 photographs and video and audio recordings 24 hours a day and 136 that widespread unauthorized dissemination of photographs and 137 video and audio recordings would subject the immediate family of 138 the deceased to continuous injury. The Legislature further 139
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recognizes that there continue to be other types of available 140 information, such as crime scene reports, which are less 141 intrusive and injurious to the immediate family members of the 142 deceased and which continue to provide for public oversight. The 143 Legislature further finds that the exemption provided in this 144 act should be given retroactive application, except as otherwise 145 provided, because it is remedial in nature. 146
Section 3. This act shall take effect July 1, 2011. 147
