The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Children, Families, and Elder Affairs
BILL: SB 1550
INTRODUCER: Senator Perry
SUBJECT: Public Records/Autopsy Reports of Minors
DATE: January 24, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Moody Cox CF Favorable
2. GO
3. RC
I. Summary:
SB 1550 amends s. 406.135, F.S., creating a new exemption from public records disclosure
under s. 119.07(1), F.S., and s. 24(a), Art. I of the Florida Constitution for autopsy reports of
minors whose death were related to acts of domestic violence held by a medical examiner, except
that a surviving parent who did not commit the act of domestic violence which led to the minor’s
death may view and copy the autopsy report of the deceased minor.
Several provisions in s. 406.135, F.S., are also amended to incorporate that an autopsy report of a
minor applies to them. Specifically, provisions relating to:
Certain government entities’ authority to have access to such report;
The custodian of the records are prohibited from disclosing such report;
The court’s discretion to issue an order authorizing disclosure of such report;
The requirements to give certain surviving parents specified notice and a copy of a petition to
view or copy such report; and
The criminal provisions for failing to comply with the exemption.
The definition of “medical examiner” is amended and the term “minor” is defined under the
section.
The bill makes findings that the new exemption from public records disclosure is a public
necessity as required by the Florida Constitution. Two-thirds vote of both the House and the
Senate is required for final passage.
The bill is subject to the Open Government Sunset Review Act and will be repealed on October
2, 2027 in accordance with s. 119.15, F.S., unless the statute is reviewed and reenacted by the
Legislature before that date.
REVISED: BILL: SB 1550 Page 2
Section 406.135, F.S., also provides that the new exemption created under the bill must be given
retroactive application. Technical amendments are made to the section.
There is no anticipated fiscal impact on state or local governments. Agency costs incurred in
responding to public records requests for the specified information should be offset by
authorized fees. See Section V. Fiscal Impact Statement.
The bill is effective upon becoming law.
II. Present Situation:
Access to Public Records - Generally
The Florida Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.
1
The right to inspect or copy applies
to the official business of any public body, officer, or employee of the state, including all three
branches of state government, local governmental entities, and any person acting on behalf of the
government.
2
Additional requirements and exemptions related to public records are found in various statutes
and rules, depending on the branch of government involved. For instance, section 11.0431, F.S.,
provides public access requirements for legislative records. Relevant exemptions are codified in
s. 11.0431(2)-(3), F.S., and adopted in the rules of each house of the legislature.
3
Florida Rule of
Judicial Administration 2.420 governs public access to judicial branch records.
4
Lastly, chapter
119, F.S., known as the Public Records Act, provides requirements for public records held by
executive agencies.
Executive Agency Records – The Public Records Act
The Public Records Act provides that all state, county and municipal records are open for
personal inspection and copying by any person, and that providing access to public records is a
duty of each agency.
5
Section 119.011(12), F.S., defines “public records” to include:
All documents, papers, letters, maps, books, tapes, photographs, films,
sound recordings, data processing software, or other material, regardless of
the physical form, characteristics, or means of transmission, made or
1
FLA. CONST. art. I, s. 24(a).
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2018-2020) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 2, (2018-2020)
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4
th
DCA 2018).
5
Section 119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal
officer, department, division, board, bureau, commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf
of any public agency.” BILL: SB 1550 Page 3
received pursuant to law or ordinance or in connections with the transaction
of official business by any agency.
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business that are used to “perpetuate,
communicate, or formalize knowledge of some type.”
6
The Florida Statutes specify conditions under which public access to public records must be
provided. The Public Records Act guarantees every person’s right to inspect and copy any public
record at any reasonable time, under reasonable conditions, and under supervision by the
custodian of the public record.
7
A violation of the Public Records Act may result in civil or
criminal liability.
8
The Legislature may exempt public records from public access requirements by passing a
general law by a two-thirds vote of both the House and the Senate.
9
The exemption must state
with specificity the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.
10
General exemptions from the public records requirements are contained in the Public Records
Act.
11
Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.
12
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” There is a difference between records the Legislature has
determined to be exempt from the Public Records Act and those which the Legislature has
determined to be exempt from the Public Records Act and confidential.
13
Records designated as
“confidential and exempt” are not subject to inspection by the public and may only be released
under the circumstances defined by statute.
14
Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.
15
6
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
7
Section 119.07(1)(a), F.S.
8
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
9
FLA. CONST. art. I, s. 24(c).
10
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public
meetings exemption was unconstitutional because the statement of public necessity did not define important terms and did
not justify the breadth of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189
(Fla. 1st DCA 2004) (holding that a statutory provision written to bring another party within an existing public records
exemption is unconstitutional without a public necessity statement).
11
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of
examinations administered by a governmental agency for the purpose of licensure).
12
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the
Department of Revenue).
13
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So. 2d 48, 53 (Fla. 5
th
DCA 2004).
14
Id.
15
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991). BILL: SB 1550 Page 4
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
16
(the
Act), prescribe a legislative review process for newly created or substantially amended
17
public
records or open meetings exemptions, with specified exceptions.
18
The Act requires the repeal of
such exemption on October 2nd of the fifth year after creation or substantial amendment, unless
the Legislature reenacts the exemption.
19
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.
20
An exemption serves an identifiable purpose if it meets one of the following purposes and the
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
It allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;
21
It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;
22
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
23
The Act also requires specified questions to be considered during the review process.
24
In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.
25
If the exemption is continued without substantive changes or if
the exemption is continued and narrowed, then a public necessity statement and a two-thirds vote
16
Section 119.15, F.S.
17
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
18
Section 119.15(2)(a) and (b), F.S., provides that exemptions required by federal law or applicable solely to the Legislature
or the State Court System are not subject to the Open Government Sunset Review Act.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S.
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
Section 119.15(6)(a), F.S. The specified questions are:
What specific records or meetings are affected by the exemption?
Whom does the exemption uniquely affect, as opposed to the general public?
What is the identifiable public purpose or goal of the exemption?
Can the information contained in the records or discussed in the meeting be readily obtained by alternative means?
If so, how?
Is the record or meeting protected by another exemption?
Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
25
See generally s. 119.15, F.S. BILL: SB 1550 Page 5
for passage are not required. If the Legislature allows an exemption to expire, the previously
exempt records will remain exempt unless otherwise provided by law.
26
Public Records Exemptions
Section 119.071, F.S., sets out general exemptions from inspection or copying of public records.
These exemptions relate to agency administration,
27
agency investigations,
28
and security and
firesafety,
29
Agency Personnel Information,
30
and other personal information.
31
There are several
other provisions public records exemptions found throughout the Florida Statutes.
32
Exemptions related to Sensitive Photo, or Videos of Deaths
Autopsy Photographs, Videos, or Audio Depictions
Section 406.135, F.S., is a provision that makes confidential and exempt a photograph, video, or
audio recording of an autopsy held by a medical examiner. There is an exception which allows
for a surviving spouse to view and copy a photograph or video recording or listen to or copy an
audio recording of the deceased spouse’s autopsy.
33
If there is no surviving spouse, current law
provides that the surviving parent must have access to such records.
34
If there is no surviving
spouse and no surviving parent, then an adult child is required to have access to such records.
35
Unless the identity of the deceased must otherwise remain confidential and exempt, a local, state,
or federal agency may also view or copy such records if:
It is in furtherance of its official duties; and
The request to view or copy the photograph or video, or listen to or copy an audio recording
is in writing.
36
The custodian of the record, or his or her designee, may not allow any other person to view or
copy such records except an agent designated in writing by the deceased’s surviving relative who
has authority to request such records.
37
Upon a showing of good cause, the court may issue an order authorizing any person to view or
copy a photograph or video recording, or listen to or copy any audio recording of an autopsy.
38
The court may impose any restrictions or stipulations that it deems appropriate.
39
There are three
factors which the court must consider when determining whether good cause exists, including:
Whether such disclosure is necessary for the public evaluation of governmental performance;
26
Section 119.15(7), F.S.
27
Section 119.071(1), F.S.
28
Section 119.071(2), F.S.
29
Section 119.071(3), F.S.
30
Section 119.071(4), F.S.
31
Section 119.071(5), F.S.
32
See e.g., ss 39.0132(4)(a)1. and 63.022(4)(i), F.S.
33
Section 406.135(2), F.S.
34
Id.
35
Id.
36
Section 406.135(3)(b), F.S.
37
Section 406.135(3)(c), F.S.
38
Section 406.135(4)(a), F.S.
39
Id. BILL: SB 1550 Page 6
The seriousness of the intrusion into the family’s right to privacy and whether such
disclosure is the least intrusive means available; and
The availability of similar information in other public records.
40
Any handling of photographs, videos, or audio recordings of an autopsy must be under the direct
supervision of the custodian of record or his or her designee.
41
The surviving spouse, surviving parent, or adult children of the deceased, as appropriate, must be
given:
Reasonable notice of a petition filed with the court to view or copy a photograph or video
recording, or listen to or copy an audio recording of an autopsy;
A copy of such petition; and
Reasonable notice of the opportunity to be present and heard at any hearing.
42
A custodian of a photograph, video, or audio recording of an autopsy who willfully and
knowingly violates these provisions commits a felony of the third degree.
43
Any person who
willfully and knowingly violates a court order issued after showing good cause to view or copy a
photograph or video, or listen to or copy an audio recording of an autopsy commits a felony of
the third degree.
44
A criminal or administrative proceeding is exempt from s. 406.135, F.S., and is subject to all the
provisions of ch. 119, F.S., unless otherwise exempted.
45
A court in a criminal or administrative
proceeding, however, may, upon a showing of good cause, restrict or otherwise control the
disclosure of an autopsy, crime scene, or similar photograph, video, or audio recording.
46
The exemption under s. 406.135, F.S. is given retroactive application.
47
There is no provision
under current law which makes confidential and exempt autopsy reports of any person that are
held by a medical examiner, including autopsy reports of a minor whose death was related to an
act of domestic violence.
48
40
Section 406.135(4)(b), F.S.
41
Section 406.135(5)(c), F.S.
42
Section 406.135(5), F.S.
43
Section 406.135(6)(a), F.S. A third degree felony is punishable by up to five years imprisonment and a $5,000 fine.
Sections 775.082(3)(e) and 775.083(1)(c), F.S.
44
Section 406.135(6)(b), F.S.
45
Section 406.135(7), F.S.
46
Id.
47
Section 406.135(8), F.S.
48
Section 741.28(2), F.S. defines “domestic violence” as any assault, aggravated assault, battery, aggravated battery, sexual
assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in
physical injury or death of one family or household member by another family member or household member.
A family or
household member includes spouses, former spouses, persons related by blood or marriage, persons who are presently
residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child
in common regardless of whether they have been married. With the exception of persons who have a child in common, the
family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
Section 784.011(1), F.S., defines “assault” as intentional, unlawful threat by word or act to do violence to the person of
another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person
that such violence is imminent. Section 784.021(1), F.S., defines “aggravated assault” as an assault: (a) with a deadly weapon
without the intent to kill; or (b) with an intent to commit a felony. Section 784.03(1)(a), F.S., states that the offense of battery BILL: SB 1550 Page 7
Mass Killings
Section 119.071(2)(p), F.S., makes a photograph or video or audio recording that depicts or
records the killing of a law enforcement officer who was acting in accordance with his or her
official duties or the killing of a victim of mass violence confidential and exempt public records
requirements.
49
Similar to the above described public records exemption related to autopsies, a
surviving spouse of the decedent may view and copy any such photograph or video recording or
listen to or copy any such audio recording. If there is no surviving spouse, the surviving parents
must have access to such records and if there is no surviving spouse or parent then the adult
children must have access to such records.
50
Additionally, access may be provided to the photograph or video or audio recordings by a court
in the same circumstances as described above for autopsies.
51
As with the exemption related to autopsies, this exemption applies retroactively and to all
photographs or video or audio recordings that depict or record the killing of a law enforcement
officer who was acting in accordance with his or her official duties or the killing of a victim of
occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2.
Intentionally causes bodily harm to another person. Section 784.045(1)(a), F.S., states a person commits aggravated battery
who, in committing battery: 1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent
disfigurement; or 2. Uses a deadly weapon. Section 794.011(1)(h), F.S., defines “sexual battery” as oral, anal, or vaginal
penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object;
however, sexual battery does not include an act done for a bona fide medical purpose. Section 748.048(2), F.S., states a
person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of
stalking. Section 784.048(3), F.S., states that a person who willfully, maliciously, and repeatedly follows, harasses, or
cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking. Section
784.048(1)(a), F.S., states that “harass” means to engage in a course of conduct directed at a specific person which causes
substantial emotional distress to that person and serves no legitimate purpose. Section 784.048(1)(c), F.S., defines “credible
threat” as a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication
or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her
safety or the safety of his or her family members or individuals closely associated with the person, and which is made with
the apparent ability to carry out the threat to cause such harm. Section 784.048(1)(d), F.S., states “cyberstalk” means: 1. To
engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or
language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person;
or 2. To access, or attempt to access, the online accounts or Internet-connected home electronic systems of another person
without that person’s permission. Section 784.048(1)(b), F.S., defines “course of conduct” as a pattern of conduct composed
of a series of acts over a period of time, however short, which evidences a continuity of purpose. Section 787.01(1)(a), F.S.,
defines “kidnapping” as forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his
will and without lawful authority, with intent to: 1. Hold for ransom or reward or as a shield or hostage; 2. Commit or
facilitate commission of any felony; 3. Inflict bodily harm upon or to terrorize the victim or another person; or 4. Interfere
with the performance of any governmental or political function. Section 787.02(1)(a), F.S., defines “false imprisonment” as
forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and
against his or her will.
49
Section 119.071(2)(o), F.S., defines “killing of a victim of mass violence” as events that depict either a victim being killed
or the body of a victim killed in an incident in which three or more persons, not including the perpetrator, are killed by the
perpetrator of an intentional act of violence.
50
Section 119.071(2)(p)2., F.S.
51
See s. 119.071(2)(p)4.-6., F.S. BILL: SB 1550 Page 8
mass violence, regardless of whether the killing of the person occurred before, on, or after May
23, 2019.
52
III. Effect of Proposed Changes:
The bill establishes that an autopsy report of a minor whose death was related to an act of
domestic violence held by a medical examiner is confidential and exempt from s. 119.07(1), F.S.,
and s. 24(a), Art. I of the Florida Constitution. The bill provides for an exception that allows a
surviving parent who did not commit the act of domestic violence which led to the minor’s death
to view and copy the report.
Several provisions in s. 406.135, F.S., are amended to provide that an autopsy report of a minor
apply to them, including specifically:
Government entities may view or copy an autopsy report of a minor if provisions under
current law are met (e.g. a written request in furtherance of its official duties);
The custodian of the record, or his or her designee, may not permit any other person, except
an authorized designed agent, to view or copy an autopsy report of a minor;
The court may, upon a showing of good cause, issue an order authorizing any person to view
or copy an autopsy report of a minor;
Any viewing, copying, or other handling of an autopsy report of a minor must be under the
direct supervision of the custodian of record or his or her designee;
Any surviving parent who did not commit the act of domestic violence which led to the
minor’s death must be given reasonable notice of petition to view or copy the autopsy report,
a copy of the petition, and reasonable notice of the opportunity to be heard at any hearing;
and
Any custodian of an autopsy report of a minor who willfully and knowingly violates the
provisions in s. 406.135, F.S., commits a third degree felony.
The bill amends the term “medical examiner” to include possession of a report of an autopsy in
the course of assisting a medical examiner in the performance of his or her official duties, in
addition to a photograph, or audio or video recording of an autopsy. The term “minor” is also
defined as a person younger than 18 years of age who has not had the disability of nonage
removed pursuant to s. 743.01, F.S., or s. 743.015, F.S.
The new exemption provided for under s. 406.135, F.S., must be given retroactive application.
Technical changes are made to the section.
The bill is subject to the Open Government Sunset Review Act and will be repealed on October
2, 2027, unless the Legislature reviews and reenacts the exemption before that date.
The bill also provides a statement of public necessity as required by the Florida Constitution,
which notes:
52
Section 119.071(2)(p)7., F.S. However, the provision further states that it is not intended to, nor may be construed to,
overturn or abrogate or alter any existing orders duly entered into by any Florida court, as of the effective date of the act,
which restrict or limit access to any photographs or video or audio recordings that depict or record the killing of a law
enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence. BILL: SB 1550 Page 9
[t]he Legislature finds that it is a public necessity that autopsy reports for
minor children whose deaths were related to acts of domestic violence be
made confidential and exempt from s. 119.07(1), Florida Statutes, and s.
24(a), Article I of the State Constitution. The Legislature finds that
autopsy reports describe the deceased in graphic and often disturbing
fashion and that autopsy reports for minor children who were victims of
domestic violence may describe the deceased nude, bruised, bloodied,
broken, with bullet or other wounds, cut open, dismembered, or
decapitated. As such, these reports often contain highly sensitive
descriptions of the deceased which, if heard, viewed, copied, or
publicized, could result in trauma, sorrow, humiliation, or emotional
injury to the immediate family of the deceased and the deceased’s minor
friends, as well as injury to the memory of the deceased. The Legislature
recognizes that the existence of the Internet and the proliferation of
websites throughout the world encourages and promotes the wide
dissemination of reports and publications 24 hours a day and that
widespread unauthorized dissemination of autopsy reports for minor
children whose deaths were related to acts of domestic violence would
subject the immediate family and the minor friends of the deceased to
continuous injury. The Legislature further finds that the exemption
provided in this act should be given retroactive application because it is
remedial in nature.
The bill is effective upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The mandate restrictions do not apply because the bill does not require
counties and municipalities to spend funds, reduce counties’ or municipalities’ ability to
raise revenue, or reduce the percentage of state tax shared with counties and
municipalities.
B. Public Records/Open Meetings Issues:
Vote Requirement
Article I, s. 24(c) of the State Constitution requires a two-thirds vote of the members
present and voting for final passage of a bill creating or expanding an exemption to the
public records requirements. This bill enacts a new exemption for autopsy reports of a
minor whose death was related to an act of domestic violence held by a medical
examiner, thus, the bill will require a two-thirds vote to be enacted.
BILL: SB 1550 Page 10
Public Necessity Statement
Article I, s. 24(c) of the State Constitution requires a bill creating or expanding an
exemption to the public records requirements to state with specificity the public necessity
justifying the exemption. Section 2 of the bill contains a statement of public necessity for
the exemption.
Scope of Exemption
Article I, s. 24(c) of the State Constitution requires an exemption to the public records
requirements to be no broader than necessary to accomplish the stated purpose of the law.
The purpose of the law is to protect a surviving parent of a deceased minor whose death
was related to an act of domestic violence. This bill exempts only those reports of minors
who death was caused by domestic violence and makes an exception for a surviving
parent of the deceased minor if he or she is not the parent who committed the act of
domestic violence with lead to the minor’s death. The exemption does not appear to be
broader than necessary to accomplish the purpose of the law.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The bill does not appear to have a fiscal impact on state or local governments. Costs
incurred by an agency in responding to public records requests regarding these
exemptions should be offset by authorized fees.
VI. Technical Deficiencies:
None. BILL: SB 1550 Page 11
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 406.135 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.