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 Rules
BILL: CS/SB 404
INTRODUCER: Committee on Rules and Senator Perry
SUBJECT: Public Records/Deaths of Minors
DATE: March 24, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Tusznyski Cox CF Favorable
2. Limones-Borja McVaney GO Favorable
3. Tusznyski Twogood RC Fav/CS
I. Summary:
CS/SB 404 makes confidential and exempt from public disclosure the photographs or video or
audio recordings that depict the killing of a minor when held by an agency. The bill defines the
“killing of a minor” and specifies who may obtain such photographs and recordings and specifies
the process for obtaining these materials. The bill provides for retroactive application of the
exemption.
The bill amends s. 119.071(2)(p), F.S., to conform to the expanded exemption for photographs or
video or audio recordings that depict the killing of a minor. Specifically:
 Certain government entities’ may access such photographs or video or audio recordings in
furtherance of their official duties;
 The court, upon showing of good cause, may issue an order authorizing any person to view
or copy such photographs or video or audio recordings;
 The record custodian in control of photographs or video or audio recordings, or his or her
designee, must directly supervise anyone who views, copies, or handles such;
 Any surviving parent must be given reasonable notice of petition to view or copy the
photographs or video or audio recordings, a copy of the petition, and reasonable notice of the
opportunity to be heard at any hearing; and
 Any custodian of photographs or video or audio recordings that depict the killing of a minor
who willfully and knowingly violates the provisions in the section and any person who
violates a court order issued pursuant to the section, commits a third degree felony.
The exemption created for photographs or video or audio recordings that depict the killing of a
minor must be given retroactive application.
The bill also creates the “Rex and Brody Act” and makes confidential and exempt from public
inspection and copying requirements an autopsy report of a minor whose death was related to an
act of domestic violence held by a medical examiner. The bill allows for disclosure of the report
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to the surviving parent who did not commit the act of domestic violence. The bill provides for
retroactive application of the exemption.
The bill conforms several provisions in s. 406.135, F.S., to incorporate the expanded exemption
for autopsy reports of certain minors. Specifically:
 Certain government entities’ may access such reports in furtherance of their 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;
 A court may use its discretion to authorize the disclosure of such reports;
 Reasonable notice of a petition to view such reports must be given to certain surviving
parents; they must also receive a copy of the petition to view or copy such reports; and
 Any person who willfully and knowingly violates a court order regarding the disclosure of
these reports, and any custodian who willfully and knowingly discloses these reports in
violation of the law, are subject to a third degree felony.
The term “minor” is defined to mean a person younger than 18 years of age who has not had the
disability of nonage removed.
The bill makes findings that the new exemptions from public records disclosure for photographs
or video or audio recordings that depict the killing of a minor and for an autopsy report of a
minor whose death was related to an act of domestic violence are 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 exemptions are subject to the Open Government Sunset Review Act and will stand repealed
on October 2, 2028, unless reviewed and reenacted by the Legislature.
There is no anticipated fiscal impact on state or local governments.
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.,
1
FLA. CONST. art. I, s. 24(a).
2
Id.
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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
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
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. 4th 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.”
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).
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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
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act (the Act),
prescribe a legislative review process for newly created or substantially amended public records
or open meetings exemptions,16 with specified exceptions.17 The Act requires the repeal of such
exemption on October 2nd of the fifth year after creation or substantial amendment; in order to
save an exemption from repeal, the Legislature must reenact the exemption or repeal the sunset
date.18 In practice, many exemptions are continued by repealing the sunset date, rather than
reenacting the exemption.
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. An
exemption serves an identifiable purpose if the Legislature finds that the purpose of the
exemption outweighs open government policy and cannot be accomplished without the
exemption and it meets one of the following purposes:
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. 5th DCA 2004).
14
Id.
15
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991).
16
Section 119.15, F.S. Section 119.15(4)(b), F.S., provides that an exemption is considered to be substantially amended if it
is expanded to include more records or information or to include meetings.
17
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.
18
Section 119.15(3), F.S.
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 It allows the state or its political subdivision to effectively and efficiently administer a
program, and administration would be significantly impaired without the exemption;19
 The release of sensitive personal information would be defamatory or would jeopardize an
individual’s safety. If this public purpose is cited as the basis of an exemption, however, only
personal identifying information is exempt;20 or
 It protects trade or business secrets.21
The Act also requires specified questions to be considered during the review process.22 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.23 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
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.24
Exemptions related to Sensitive Photos, or Videos of Deaths
Autopsy Photographs, Videos, or Audio Depictions
Section 406.135, F.S., makes confidential and exempt a photograph, video, or audio recording of
an autopsy held by a medical examiner. It does not limit the disclosure of any written autopsy
report. 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.25 If
there is no surviving spouse, current law provides that the surviving parent must have access to
such records.26 If there is no surviving spouse and no surviving parent, then an adult child is
required to have access to such records.27 Current law also allows for the disclosure to a local,
state, or federal agency if it is in furtherance of its official duties.28
19
Section 119.15(6)(b)1., F.S.
20
Section 119.15(6)(b)2., F.S.
21
Section 119.15(6)(b)3., F.S.
22
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?
23
See generally s. 119.15, F.S.
24
Section 119.15(7), F.S.
25
Section 406.135(2), F.S.
26
Id.
27
Id.
28
Section 406.135(3)(b), F.S.
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The custodian of the record, or his or her designee, may not allow any other person to view or
copy such records unless the deceased’s surviving relative who has authority to request such
records designated, or his or her designated agent, grants permission to view or copy such
records.29
Upon a showing of good cause, a 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.30
The court may impose any restrictions or stipulations that it deems appropriate.31 The court must
consider three factors when determining whether good cause exists, including:
 Whether such disclosure is necessary for the public evaluation of governmental performance;
 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.32
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.33
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.34
A custodian of a photograph, video, or audio recording of an autopsy who willfully and