Florida Senate - 2023 CS for SB 404 By the Committee on Rules; and Senator Perry 595-02898-23 2023404c1 1 A bill to be entitled 2 An act relating to public records; amending s. 3 119.071, F.S.; defining the term killing of a minor; 4 expanding an existing exemption from public records 5 requirements for certain photographs or video or audio 6 recordings held by an agency to include photographs 7 and video and audio recordings held by an agency which 8 depict or record the killing of a minor, with 9 exceptions; providing construction; conforming 10 provisions to changes made by the act; providing 11 criminal penalties; providing for retroactive 12 application; providing for future legislative review 13 and repeal of the exemption; providing for the 14 reversion of certain provisions if the exemption is 15 repealed; providing a short title; amending s. 16 406.135, F.S.; revising the definition of the term 17 medical examiner; defining the term minor; 18 creating an exemption from public records requirements 19 for autopsy reports of minors whose deaths were 20 related to acts of domestic violence; providing 21 exceptions; requiring that any viewing, copying, or 22 other handling of such autopsy reports be under the 23 direct supervision of the custodian of the record or 24 his or her designee; requiring that certain surviving 25 parents of a minor whose death was related to an act 26 of domestic violence be given notice of petitions to 27 view or copy the minors autopsy report and the 28 opportunity to be present and heard at related 29 hearings under certain circumstances; providing 30 criminal penalties; providing construction; providing 31 for retroactive application; providing for future 32 legislative review and repeal of the exemption; 33 providing statements of public necessity; providing an 34 effective date. 35 36 Be It Enacted by the Legislature of the State of Florida: 37 38 Section 1.Paragraph (p) of subsection (2) of section 39 119.071, Florida Statutes, is amended to read: 40 119.071General exemptions from inspection or copying of 41 public records. 42 (2)AGENCY INVESTIGATIONS. 43 (p)1.As used in this paragraph, the term: 44 a.Killing of a law enforcement officer who was acting in 45 accordance with his or her official duties means all acts or 46 events that cause or otherwise relate to the death of a law 47 enforcement officer who was acting in accordance with his or her 48 official duties, including any related acts or events 49 immediately preceding or subsequent to the acts or events that 50 were the proximate cause of death. 51 b.Killing of a minor means all acts or events that cause 52 or otherwise relate to the death of a victim who has not yet 53 reached 18 years of age at the time of death, including any 54 related acts or events immediately preceding or subsequent to 55 the acts or events that were the proximate cause of the death of 56 a victim younger than 18 years of age; events that depict a 57 victim younger than 18 years of age being killed; or events that 58 depict the body of a victim younger than 18 years of age who has 59 been killed. 60 c.Killing of a victim of mass violence means events that 61 depict either a victim being killed or the body of a victim 62 killed in an incident in which three or more persons, not 63 including the perpetrator, are killed by the perpetrator of an 64 intentional act of violence. 65 2.A photograph or video or audio recording that depicts or 66 records the killing of a law enforcement officer who was acting 67 in accordance with his or her official duties, the killing of a 68 minor, or the killing of a victim of mass violence is 69 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I 70 of the State Constitution, except that a surviving spouse of the 71 decedent may view and copy any such photograph or video 72 recording or listen to or copy any such audio recording. If 73 there is no surviving spouse, the surviving parents shall have 74 access to such records. If there is no surviving spouse or 75 parent, the adult children shall have access to such records. 76 Nothing in this paragraph precludes a surviving spouse, parent, 77 or adult child of the victim from sharing or publicly releasing 78 such photograph or video or audio recording. 79 3.a.The deceaseds surviving relative, with whom authority 80 rests to obtain such records, may designate in writing an agent 81 to obtain such records. 82 b.A local governmental entity, or a state or federal 83 agency, in furtherance of its official duties, pursuant to a 84 written request, may view or copy a photograph or video 85 recording or may listen to or copy an audio recording of the 86 killing of a law enforcement officer who was acting in 87 accordance with his or her official duties, the killing of a 88 minor, or the killing of a victim of mass violence, and, unless 89 otherwise required in the performance of its duties, the 90 identity of the deceased shall remain confidential and exempt. 91 c.The custodian of the record, or his or her designee, may 92 not permit any other person to view or copy such photograph or 93 video recording or listen to or copy such audio recording 94 without a court order. 95 4.a.The court, upon a showing of good cause, may issue an 96 order authorizing any person to view or copy a photograph or 97 video recording that depicts or records the killing of a law 98 enforcement officer who was acting in accordance with his or her 99 official duties, the killing of a minor, or the killing of a 100 victim of mass violence, or to listen to or copy an audio 101 recording that depicts or records the killing of a law 102 enforcement officer who was acting in accordance with his or her 103 official duties, the killing of a minor, or the killing of a 104 victim of mass violence, and may prescribe any restrictions or 105 stipulations that the court deems appropriate. 106 b.In determining good cause, the court shall consider: 107 (I)Whether such disclosure is necessary for the public 108 evaluation of governmental performance; 109 (II)The seriousness of the intrusion into the familys 110 right to privacy and whether such disclosure is the least 111 intrusive means available; and 112 (III)The availability of similar information in other 113 public records, regardless of form. 114 c.In all cases, the viewing, copying, listening to, or 115 other handling of a photograph or video or audio recording that 116 depicts or records the killing of a law enforcement officer who 117 was acting in accordance with his or her official duties, the 118 killing of a minor, or the killing of a victim of mass violence 119 must be under the direct supervision of the custodian of the 120 record or his or her designee. 121 5.A surviving spouse shall be given reasonable notice of a 122 petition filed with the court to view or copy a photograph or 123 video recording that depicts or records the killing of a law 124 enforcement officer who was acting in accordance with his or her 125 official duties, the killing of a minor, or the killing of a 126 victim of mass violence, or to listen to or copy any such audio 127 recording, a copy of such petition, and reasonable notice of the 128 opportunity to be present and heard at any hearing on the 129 matter. If there is no surviving spouse, such notice must be 130 given to the parents of the deceased and, if the deceased has no 131 surviving parent, to the adult children of the deceased. 132 6.a.Any custodian of a photograph or video or audio 133 recording that depicts or records the killing of a law 134 enforcement officer who was acting in accordance with his or her 135 official duties, the killing of a minor, or the killing of a 136 victim of mass violence who willfully and knowingly violates 137 this paragraph commits a felony of the third degree, punishable 138 as provided in s. 775.082, s. 775.083, or s. 775.084. 139 b.Any person who willfully and knowingly violates a court 140 order issued pursuant to this paragraph commits a felony of the 141 third degree, punishable as provided in s. 775.082, s. 775.083, 142 or s. 775.084. 143 c.A criminal or administrative proceeding is exempt from 144 this paragraph but, unless otherwise exempted, is subject to all 145 other provisions of chapter 119; however, this paragraph does 146 not prohibit a court in a criminal or administrative proceeding 147 upon good cause shown from restricting or otherwise controlling 148 the disclosure of a killing, crime scene, or similar photograph 149 or video or audio recording in the manner prescribed in this 150 paragraph. 151 7.The exemption in this paragraph shall be given 152 retroactive application and shall apply to all photographs or 153 video or audio recordings that depict or record the killing of a 154 law enforcement officer who was acting in accordance with his or 155 her official duties, the killing of a minor, or the killing of a 156 victim of mass violence, regardless of whether the killing of 157 the person occurred before, on, or after May 23, 2019. However, 158 nothing in this paragraph is intended to, nor may be construed 159 to, overturn or abrogate or alter any existing orders duly 160 entered into by any court of this state, as of the effective 161 date of this act, which restrict or limit access to any 162 photographs or video or audio recordings that depict or record 163 the killing of a law enforcement officer who was acting in 164 accordance with his or her official duties, the killing of a 165 minor, or the killing of a victim of mass violence. 166 8.This paragraph applies only to such photographs and 167 video and audio recordings held by an agency. 168 9.a.This paragraph is subject to the Open Government 169 Sunset Review Act in accordance with s. 119.15 and shall stand 170 repealed on October 2, 2024, unless reviewed and saved from 171 repeal through reenactment by the Legislature. 172 b.The expansion of the public records exemption in this 173 paragraph to prevent the public disclosure of a photograph or 174 video or audio recording that depicts or records the killing of 175 a minor is subject to the Open Government Sunset Review Act in 176 accordance with s. 119.15 and shall stand repealed on October 2, 177 2028, unless reviewed and saved from repeal through reenactment 178 by the Legislature. If the expansion of the exemption is not 179 saved from repeal, this paragraph shall revert to that in effect 180 1 day before the effective date of this act, except that any 181 amendments to this subsection other than by this act shall be 182 preserved and continue to operate to the extent that such 183 amendments are not dependent upon the portions of this 184 subsection which expire pursuant to this paragraph. 185 Section 2.Section 3 of this act may be cited as the Rex 186 and Brody Act. 187 Section 3.Section 406.135, Florida Statutes, is amended to 188 read: 189 406.135Autopsies; confidentiality of photographs and video 190 and audio recordings; confidentiality of reports of minor 191 victims of domestic violence; exemption. 192 (1)As used in For the purpose of this section, the term: 193 (a)Medical examiner means any district medical examiner, 194 associate medical examiner, or substitute medical examiner 195 acting pursuant to this chapter, as well as any employee, 196 deputy, or agent of a medical examiner or any other person who 197 may obtain possession of a report, photograph, or audio or video 198 recording of an autopsy in the course of assisting a medical 199 examiner in the performance of his or her official duties. 200 (b)Minor means a person younger than 18 years of age who 201 has not had the disability of nonage removed pursuant to s. 202 743.01 or s. 743.015. 203 (2)(a)A photograph or video or audio recording of an 204 autopsy held by a medical examiner is confidential and exempt 205 from s. 119.07(1) and s. 24(a), Art. I of the State 206 Constitution, except that a surviving spouse may view and copy a 207 photograph or video recording or listen to or copy an audio 208 recording of the deceased spouses autopsy. If there is no 209 surviving spouse, then the surviving parents shall have access 210 to such records. If there is no surviving spouse or parent, then 211 an adult child shall have access to such records. 212 (b)An autopsy report of a minor whose death was related to 213 an act of domestic violence as defined in s. 741.28 held by a 214 medical examiner is confidential and exempt from s. 119.07(1) 215 and s. 24(a), Art. I of the State Constitution, except that a 216 surviving parent of the deceased minor may view and copy the 217 report if the surviving parent did not commit the act of 218 domestic violence which led to the minors death. 219 (3)(a)The deceaseds surviving relative, with whom 220 authority rests to obtain such records, may designate in writing 221 an agent to obtain such records. 222 (b)A local governmental entity, or a state or federal 223 agency, in furtherance of its official duties, pursuant to a 224 written request, may view or copy a photograph or video 225 recording of an autopsy or a minors autopsy report or may 226 listen to or copy an audio recording of an autopsy, and unless 227 otherwise required in the performance of official their duties, 228 the identity of the deceased shall remain confidential and 229 exempt. 230 (c)The custodian of the record, or his or her designee, 231 may not permit any other person, except an agent designated in 232 writing by the deceaseds surviving relative with whom authority 233 rests to obtain such records, to view or copy such photograph, 234 or video recording, or minors autopsy report or listen to or 235 copy an audio recording without a court order. 236 (4)(a)The court, upon a showing of good cause, may issue 237 an order authorizing any person to view or copy a photograph or 238 video recording of an autopsy or a minors autopsy report or to 239 listen to or copy an audio recording of an autopsy and may 240 prescribe any restrictions or stipulations that the court deems 241 appropriate. 242 (b)In determining good cause, the court shall consider 243 whether such disclosure is necessary for the public evaluation 244 of governmental performance; the seriousness of the intrusion 245 into the familys right to privacy and whether such disclosure 246 is the least intrusive means available; and the availability of 247 similar information in other public records, regardless of form. 248 (c)In all cases, the viewing, copying, listening to, or 249 other handling of a photograph or video or audio recording of an 250 autopsy or a minors autopsy report must be under the direct 251 supervision of the custodian of the record or his or her 252 designee. 253 (5)(a)A surviving spouse must shall be given reasonable 254 notice of a petition filed with the court to view or copy a 255 photograph or video recording of an autopsy or a petition to 256 listen to or copy an audio recording, a copy of such petition, 257 and reasonable notice of the opportunity to be present and heard 258 at any hearing on the matter. If there is no surviving spouse, 259 then such notice must be given to the parents of the deceased, 260 and if there is the deceased has no living parent, then to the 261 adult children of the deceased. 262 (b)For an autopsy report of a minor whose death was 263 related to an act of domestic violence as defined in s. 741.28, 264 any surviving parent who did not commit the act of domestic 265 violence which led to the minors death must be given reasonable 266 notice of a petition filed with the court to view or copy the 267 report, a copy of such petition, and reasonable notice of the 268 opportunity to be present and heard at any hearing on the 269 matter. 270 (6)(a)Any custodian of a photograph or video or audio 271 recording of an autopsy or a minors autopsy report who 272 willfully and knowingly violates this section commits a felony 273 of the third degree, punishable as provided in s. 775.082, s. 274 775.083, or s. 775.084. 275 (b)Any person who willfully and knowingly violates a court 276 order issued pursuant to this section commits a felony of the 277 third degree, punishable as provided in s. 775.082, s. 775.083, 278 or s. 775.084. 279 (7)A criminal or administrative proceeding is exempt from 280 this section, but unless otherwise exempted, is subject to all 281 other provisions of chapter 119 unless otherwise exempted., 282 provided however that This section does not prohibit a court in 283 a criminal or administrative proceeding upon good cause shown 284 from restricting or otherwise controlling the disclosure of an 285 autopsy, crime scene, or similar report, photograph, or video or 286 audio recording recordings in the manner prescribed herein. 287 (8)The exemptions in this section This exemption shall be 288 given retroactive application. 289 (9)This section is subject to the Open Government Sunset 290 Review Act in accordance with s. 119.15 and shall stand repealed 291 on October 2, 2028, unless reviewed and saved from repeal 292 through reenactment by the Legislature. 293 Section 4.(1)(a)The Legislature finds that it is a public 294 necessity that photographs and video and audio recordings that 295 depict or record the killing of a minor be made confidential and 296 exempt from s. 119.07(1), Florida Statutes, and s. 24(a), 297 Article I of the State Constitution. The Legislature finds that 298 photographs and video and audio recordings that depict or record 299 the killing of a minor render a graphic and often disturbing 300 visual or auditory representation of the deceased. Such 301 photographs and video and audio recordings provide a view of the 302 deceased in the final moments of life, in which they are often 303 bruised, bloodied, broken, with bullet wounds or other wounds, 304 lacerated, dismembered, or decapitated. As such, photographs and 305 video and audio recordings that depict or record the killing of 306 a minor are highly sensitive representations of the deceased 307 which, if heard, viewed, copied, or publicized, could result in 308 trauma, sorrow, humiliation, or emotional injury to the 309 immediate family of the deceased and detract from the memory of 310 the deceased. The Legislature recognizes that the existence of 311 the Internet and the proliferation of personal computers and 312 cellular telephones throughout the world encourages and promotes 313 the wide dissemination of such photographs and video and audio 314 recordings 24 hours a day and that widespread unauthorized 315 dissemination of such photographs and video and audio recordings 316 would subject the immediate family of the deceased to continuous 317 injury. 318 (b)In addition to the emotional and mental injury that 319 these photographs and video and audio recordings may cause 320 family members, the Legislature also finds that dissemination of 321 photographs and video and audio recordings that depict or record 322 the killing of a minor is harmful to the public. The Legislature 323 is concerned that the release of these photographs and video and 324 audio recordings may educe violent acts by persons who have a 325 mental illness or who are morally corrupt. 326 (c)The Legislature further finds that other types of 327 information, such as crime scene reports, continue to be 328 available which are less intrusive and injurious to the 329 immediate family of the deceased and continue to provide for 330 public oversight. The Legislature also finds that the exemption 331 provided in this act should be given retroactive application 332 because it is remedial in nature. 333 (2)The Legislature finds that it is a public necessity 334 that autopsy reports of minors whose deaths were related to acts 335 of domestic violence be made confidential and exempt from s. 336 119.07(1), Florida Statutes, and s. 24(a), Article I of the 337 State Constitution. The Legislature finds that autopsy reports 338 describe the deceased in a graphic and often disturbing fashion 339 and that autopsy reports of minors whose deaths were related to 340 acts of domestic violence may describe the deceased nude, 341 bruised, bloodied, broken, with bullet or other wounds, cut 342 open, dismembered, or decapitated. As such, these reports often 343 contain highly sensitive descriptions of the deceased which, if 344 heard, viewed, copied, or publicized, could result in trauma, 345 sorrow, humiliation, or emotional injury to the immediate family 346 and minor friends of the deceased, as well as injury to the 347 memory of the deceased. The Legislature recognizes that the 348 existence of the Internet and the proliferation of websites 349 throughout the world encourages and promotes the wide 350 dissemination of reports and publications 24 hours a day, and 351 that widespread unauthorized dissemination of autopsy reports of 352 minors whose deaths were related to acts of domestic violence 353 would subject the immediate family and minor friends of the 354 deceased to continuous injury. The Legislature further finds 355 that the exemption provided in this act should be given 356 retroactive application because it is remedial in nature. 357 Section 5.This act shall take effect upon becoming a law.