This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h7015.CRM
DATE: 1/21/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 7015 PCB GOS 22-06 OGSR/Identity of a Witness to Murder
SPONSOR(S): Government Operations Subcommittee, Fetterhoff
TIED BILLS: IDEN./SIM. BILLS: SB 7032
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Government Operations
Subcommittee
Mwakyanjala Toliver
1) Criminal Justice & Public Safety Subcommittee Frost Hall
2) State Affairs Committee
SUMMARY ANALYSIS
The Open Government Sunset Review Act requires the Legislature to review each public record and each
public meeting exemption five years after enactment. If the Legislature does not reenact the exemption, it
automatically repeals on October 2nd of the fifth year after enactment.
First degree murder is a capital felony and is the unlawful killing of a human being: when committed with
premeditation to cause the death of the person killed or any human being; or by a person engaged in
perpetrating, or attempting to perpetrate a specified felony.
Second degree murder is the unlawful killing of a human being, when perpetrated by an imminently dangerous
act and demonstrating a depraved mind regardless of human life. Third degree murder is the unlawful killing of
a human being, without design to effect death, by a person engaged in the commission of, or the attempt to
commit, any felony other than a felony enumerated by statute.
In 2017, the Legislature created a public record exemption for criminal intelligence information or criminal
investigative information that reveals the personal identifying information of a witness to a murder, for two
years after the date on which the murder is observed by a witness. Such records are confidential and exempt
from public record requirements.
The bill saves from repeal the public record exemption for criminal intelligence information or criminal
investigative information that reveals the personal identifying information of a witness to a murder, which will
repeal on October 2, 2022, if the bill does not become law.
The bill does not appear to have a fiscal impact on state or local governments. STORAGE NAME: h7015.CRM PAGE: 2
DATE: 1/21/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Open Government Sunset Review Act
The Open Government Sunset Review Act (Act)
1
sets forth a legislative review process for newly
created or substantially amended public record or public meeting exemptions. It requires an automatic
repeal of the exemption on October 2nd of the fifth year after creation or substantial amendment,
unless the Legislature reenacts the exemption.
2
The Act provides that a public record or public meeting exemption may be created or maintained only if
it serves an identifiable public purpose. In addition, it may be no broader than is necessary to meet one
of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.
Protect trade or business secrets.
3
If, and only if, in reenacting an exemption that will repeal, the exemption is expanded (essentially
creating a new exemption), then a public necessity statement and a two-thirds vote for passage are
required.
4
If the exemption is reenacted with grammatical or stylistic changes that do not expand the
exemption, if the exemption is narrowed, or if an exception to the exemption is created
then a public
necessity statement and a two-thirds vote for passage are not required.
Murder
Chapter 782, F.S., defines homicide and assigns penalties for an offense. First degree murder is a
capital felony
5
and is the unlawful killing of a human being when committed:
With premeditation to cause the death of the person killed or any human being; or
By a person engaged in perpetrating, or attempting to perpetrate, any:
o Drug trafficking offense;
6
o Arson;
o Sexual battery;
o Robbery or home-invasion robbery;
o Burglary;
o Kidnapping;
o Escape;
o Aggravated child abuse;
o Aggravated abuse of an elderly person or disabled adult;
o Aircraft piracy;
o Unlawful throwing, placing, or discharging of a destructive device or bomb;
o Carjacking;
o Aggravated stalking;
1
S. 119.15, F.S.
2
S. 119.15(3), F.S.
3
S. 119.15(6)(b), F.S.
4
Art. I, s. 24(c), Fla. Const.
5
The offense is punishable by death or life imprisonment. S. 775.082, F.S.
6
Specified in s. 893.135(1), F.S. STORAGE NAME: h7015.CRM PAGE: 3
DATE: 1/21/2022
o Murder of another human being;
o Resisting an officer with violence;
o Aggravated fleeing or eluding with serious bodily injury or death;
o A felony act of terrorism;
7
o Human trafficking; or
o Unlawful distribution of a specified controlled substance,
8
which is the proximate cause
of a user's death.
9
The unlawful killing of a human being, when perpetrated by an imminently dangerous act and
demonstrating a depraved mind regardless of human life, is murder in the second degree;
10
a first
degree felony, punishable by a term of imprisonment not exceeding life.
11
If a person is killed during the
commission of, or during the attempt to commit an enumerated felony,
12
by a person other than the
person engaged in such felony, the person committing or attempting to commit such felony commits
second degree murder, a first degree felony.
13, 14
Third degree murder is the unlawful killing of a human being, without design to effect death, by a
person engaged in the commission of, or the attempt to commit, any felony other than a felony
15
enumerated by statute.
Public Record Exemption under Review
In 2017, the Legislature created a public records exemption for criminal intelligence information
16
or
criminal investigative information
17
that reveals the personal identifying information of a witness to a
murder, for two years after the date on which the murder is observed by the witness.
18
Such records
are confidential and exempt from public record requirements.
19
A criminal justice agency may disclose
such information:
In the furtherance of its official duties and responsibilities.
To assist in locating or identifying the witness if the agency believes the witness to be missing or
endangered.
7
Or an act in furtherance of terrorism, including a felony under ss. 775.30, 775.32, 775.33, 775.34, or 775.35, F.S.
8
A substance controlled under s. 893.03(1), F.S., cocaine; opium or any synthetic or natural salt, compound, derivative, or preparation
of opium; methadone; alfentanil; carfentanil; fentanyl; sufentanil; or specified controlled substance analogs.
9
S. 782.04, F.S.
10
S. 782.04(2), F.S.
11
Ss. 775.082, 775.083, and 775.084, F.S.
12
Enumerated felonies include drug trafficking under s. 893.135(1), F.S.; arson; sexual battery; robbery or home-invasion robbery;
burglary; kidnapping; escape; aggravated child abuse or aggravated abuse of an elderly person or disabled adult; aircraft piracy;
unlawful throwing, placing, or discharging of a destructive device or bomb; carjacking; aggravated stalking; murder of another human
being; aggravated fleeing or eluding with serious bodily injury or death; resisting an officer with violence; and a felony act of terrorism or
act in furtherance of terrorism. S. 782.04(3), F.S.
13
A first degree felony is punishable by up to 30 years imprisonment and a $10,000 fine. Ss. 775.082, 775.083, and 775.084, F.S.
14
S. 782.04(3), F.S.
15
Enumerated felonies include drug trafficking under s. 893.135(1), F.S.; arson; sexual battery; robbery or home-invasion robbery;
burglary; kidnapping; escape; aggravated child abuse or aggravated abuse of an elderly person or disabled adult; aircraft piracy;
unlawful throwing, placing, or discharging of a destructive device or bomb; carjacking; aggravated stalking; murder of another human
being; aggravated fleeing or eluding with serious bodily injury or death; resisting an officer with violence; a felony act of terrorism or act
in furtherance of terrorism; and drug distribution of a specified controlled substance when such drug is the proximate cause of a user's
death. S. 782.04(4), F.S.
16
The term “criminal intelligence information” means information with respect to an identifiable person or group of persons collected by
a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity. S. 119.011(3)(a), F.S.
17
The term “criminal investigative information” means information with respect to an identifiable person or group of persons compiled by
a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to,
information derived from laboratory tests, reports of investigators or informants, or any type of surveillance. S. 119.011(3)(b), F.S.
18
Ch. 2017-11, Laws of Fla. codified in ss. 119.011(3)(c), 119.071(2)(m), and 119.0714(1)(h), F.S.
19
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstances.
(See WFTV, Inc. v. The School Board of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004);
City of Riviera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 687 (Fla. 5th DCA
1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may not be released, by
the custodian of public records, to anyone other than the persons or entities specifically designated in statute. (See Op. Att’y Gen. Fla.
85- 62 (1985). STORAGE NAME: h7015.CRM PAGE: 4
DATE: 1/21/2022
To another governmental agency for use in the performance of its official duties and
responsibilities.
To the parties in a pending criminal prosecution as required by law.
20
The 2017 public necessity statement
21
for the exemption provides that the Legislature finds that:
The judicial system cannot function without the participation of witnesses.
Complete cooperation and truthful testimony of witnesses is essential to the
determination of the facts of a case. The public disclosure of personal identifying
information of a witness to a murder could have an undesirable chilling effect on
witnesses stepping forward and providing their eyewitness accounts of murders.
A witness to a murder may be unwilling to cooperate fully with law enforcement
officers if the witness knows his or her personal identifying information can be
made publicly available. A witness may be less likely to call a law enforcement
officer and report a murder if his or her personal identifying information is made
available in connection with the murder that is being reported or under
investigation. The Legislature further finds that a witness could become the
subject of intimidation tactics or threats by the perpetrator of the murder if the
witness’s personal identifying information is publicly available.
Pursuant to the Open Government Sunset Review Act, the exemption will repeal on October 2, 2022,
unless reenacted by the Legislature.
22
During the 2021 interim, subcommittee staff sent questionnaires to county sheriffs, police departments,
and state attorney’s offices throughout the state as well as the Florida Department of Law
Enforcement.
23
The overwhelming majority of respondents that collected or possessed criminal
intelligence or criminal investigative information relating to witnesses of a murder recommended that
the exemption be reenacted: 29 recommended reenacting the public exemption law as is, five
recommended reenacting the public record exemption with changes,
24
and one recommended the
exemption be allowed to repealed.
25
Most respondents indicated that the exemption was functioning
well and all respondents were unaware of any litigation concerning the exemption.
26
Effect of the Bill
The bill removes the scheduled repeal of the exemption; thereby, maintaining the public record
exemption for criminal intelligence information or criminal investigative information that reveals the
personal identifying information of a witness to a murder, for two years after the date on which the
murder is observed by the witness.
B. SECTION DIRECTORY:
Section 1: Amends s. 119.071, F.S., to remove the scheduled repeal date of the public record
exemption.
Section 2: Provides an effective date of October 1, 2022.
20
S. 119.071(2)(m), F.S.
21
Article I, s. 24(c), Fla. Const., requires each public record exemption to “state with specificity the public necessity justifying the
exemption.”
22
S. 119.071(5)(k)4., F.S.
23
Open Government Sunset Review Questionnaire, Personal Identifying Information of a Murder Witness, responses on file with the
Government Operations Subcommittee.
24
Three respondents believed the two-year timeframe was insufficient and called for the period to be extended to four to five years or
until the conclusion of the criminal case. One respondent recommended the public record exemption to be adopted into Marsy’s Law to
cover witnesses as well as victims. Another respondent recommended to include changes made with the help of DCF and school
counselors/principles of any juvenile affected as a witness to a murder or who is family to a witness of a murder. Id.
25
One respondent recommended to repeal the exemption with no additional explanation given. Id.
26
Id. STORAGE NAME: h7015.CRM PAGE: 5
DATE: 1/21/2022
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES