TRANSPARENCY TUESDAY: Dead men tell no tales, as states shut down access to autopsy reports

In a setback for public access, a South Carolina judge has refused to allow journalists to review a medical examiner's autopsy report in connection with the death of a 25-year-old man shot by police.

In a July 9 order, a Sumter County trial judge decided that autopsy records fall within the exemption in South Carolina's Freedom of Information Act covering "medical" records.

Although autopsy reports traditionally are public record, privacy advocates are gaining traction across the country in seeking confidentiality, in part because of concerns that gruesome photos upsetting to the survivors may be widely distributed online.

Reporter Joe Perry and his Sumter, S.C., newspaper, The Item, sued the Sumter County coroner in May 2011 seeking access to the autopsy records for Aaron Lee Jacobs, who was shot to death after officers investigating a carjacking said he drew a gun.

Although the ruling went against disclosure, the outcome could have been far worse for journalists.

The coroner's primary argument was that the records were confidential under the federal Health Insurance Portability and Accountability Act ("HIPAA"), which often is used frivolously by government agencies to withhold records that, as in this case, have nothing to do with a doctor's delivery of medical treatment. The judge did not decide the case on the basis of HIPAA because he found that the records were exempt under state law. A ruling on HIPAA grounds would only have encouraged the continued misuse of what is supposed to be a narrowly limited privacy law.

The ruling runs counter to the normal presumption that concerns about personal privacy die with the individual. However, exemptions to the South Carolina FOI law are not based on whether release of the documents would compromise a legally protected privacy right.

Setting a modern-day grammatical record for most uses of the word "medical" in a single sentence so as to make the decision seem more obvious, Presiding Circuit Court Judge Clifton Newman wrote:

The autopsy record is a medical record by the plain and ordinary meaning of the term. The autopsy report is prepared by a medical doctor and sets forth medical information on the deceased including the medical history and the medical findings of a medical doctor.
Exempting autopsy reports from public records laws has been something of a mini-trend since the highly publicized dispute over the February 2001 death of auto racing legend Dale Earnhardt Sr.

Under the Florida open-records act, news organizations requested copies of the coroner's examination of Earnhardt, hoping to have the records independently reviewed by accident-safety experts. The death was puzzling, because the crash at Daytona Motor Speedway did not appear especially violent, and it led to speculation that safety systems in Earnhardt's car might have failed.

While the Earnhardt family was in court attempting to block release of the records, the Florida legislature acted, passing a statute that took photos and videos of autopsies out of the public record -- retroactively, so as to apply to Earnhardt -- without the express consent of the next-of-kin.

Elsewhere, the law is mixed. North Carolina allows access both to autopsy reports and photos (though photographs cannot be copied without a court order, which seems like a sensible alternative to zero access). But a Massachusetts court, in reasoning echoed in Judge Newman's recent ruling, decided in 1989 that autopsy reports are exempt from disclosure.

Other states, including Oregon, take no chances on judicial interpretations and expressly carve out autopsy records as nonpublic in their FOI statutes.

Because many states take a split-the-difference approach, reporters should never start by assuming they have no access to autopsy records. For example, Illinois law generally allows access, except that officials may withhold autopsy photos that are deemed excessively "graphic." Pennsylvania law allows for limited access to the "cause and manner" of the individual's death -- which is better than nothing -- and the reports belatedly become publicly viewable when filed with the state at the end of each year.

In some states, including California, autopsy reports are deemed to be confidential under public-records exemptions that protect confidential law enforcement records being used in pending criminal cases. In such states, it's possible to go back and argue for access once the prosecution is concluded and the "pending criminal case" rationale no longer applies.

Reporters who need information about newsworthy deaths have other options. Death certificates still are a matter of public record, and while they will lack the level of detail of an autopsy report, they should at least disclose the cause and circumstances of the death. In most states, the certificates are kept in the "vital records" office of the state health department, so that is where journalists should start.

Also, documents and photos from autopsies can come into the public record in a variety of ways, including being used as exhibits in court proceedings or (after a case is concluded) being part of a prosecutor's closed case file, so those needing access should check secondary sources if the records aren't directly accessible through a coroner or medical examiner.



Tagged: public records, Transparency Tuesday