Court declines to hear student newspaper's appeal over the constitutionality of law, leaving debate open between privacy rights and public interest
July 7, 2003
FLORIDA
— The autopsy photos of racecar driver Dale Earnhardt will remain
sealed as a result of the Florida Supreme Court's decision to not test the constitutionality of
his namesake statute, which exempted those and similar autopsy records from
public disclosure.On July 1, a 4-3 majority of the state's highest court
declined to hear the appeal filed by the University of Florida's student
newspaper. The Independent Florida Alligator was asking the court to
throw out the "Earnhardt Family Protection Act" on the grounds that it
restricted all videos, photos and audio recordings taken during autopsies prior
to the law's passage. Those autopsy records had been available to the public
under the Florida Public Records Act. At issue in the case were 33
photos taken by an assistant medical examiner during Earnhardt's autopsy, which
were used as back-up to his tape-recorded notes. On Feb. 18, 2001, the
seven-time NASCAR Winston Cup champion died instantly of head injuries when his
car, traveling at speeds in excess of 150 mph, hit the wall on the final turn at
the Daytona 500. The autopsy was performed the following day in accordance with
state law regarding accidental deaths.The newspaper requested the photos
before the exemption to the sunshine law was signed by Gov. Jeb Bush just over a
month after the crash, but the law was applied retroactively. Without a
ruling by the high court, a decision in the Fifth District Court of Appeals last
summer will stand in the case. In that decision, the appellate court rejected
the newspaper's argument that the law was overly broad because it denied access
to these records in all previous and future autopsies, irrespective if there are
any living family members who might be distressed by their release.
Specifically, the appeals court ruled that the right to privacy of
Earnhardt's widow, Teresa, outweighed any public interest into the autopsy
photos. Under the "Earnhardt Family Protection Act," courts can order
the release of autopsy materials if the requesting party has good cause to trump
a family's privacy. The Orlando Sentinel, which was the first
paper to request Earnhardt's photos, planned to review them to determine whether
better safety equipment could have saved his life.The paper mediated
with Teresa Earnhardt, who agreed to allow an expert to examine the photographs
and issue an independent report, after which the photographs would be sealed.
After the settlement, the Alligator requested the photos in accordance
with the sunshine law. Teresa Earnhardt then successfully lobbied the state
Legislature to pass the bill to exempt the photos from
disclosure.Medical examiners who release these records under violation
of the law can be sentenced up to five years in prison and fined $5,000.
Newspaper reporters who illegally publish the information also could face the
felony charge.The balance between public interest and family privacy has
become the central debate surrounding the Earnhardt case and other cases that have been
brought to court since the law's passage. A case currently in front of the state court of
appeals involves access to autopsy photos when there are no known living
relatives. Tom Julin, who represented Campus Communications, Inc., the
publisher of the Independent Florida Alligator, said it is easier to see
in the context of that case that the law is overly broad and unconstitutional
because it cannot be justified that someone will be hurt and disturbed by its
release.In rejecting the Earnhardt case without issuing any comment,
Julin said the supreme court ducked the issue. "This is an instance
where the politics overtook the Florida Constitution and law here," Julin said.
"In the Earnhardt case, neither the state Legislature nor the governor nor the
supreme court could stomach the result that was clearly required, so they turned
their back on the law. It is a sad commentary on people's willingness to stand
up for principles."Julin said many people are finding the law
restrictive."The law as it currently exists makes it so expensive and
difficult to get at the records that only in rare circumstances that someone has
the resources and initiative to put on a case in front of the judge to show that
it is required under the law," he said. "Whereas before, you could just go down
to the medical examiners office and get those records, and it wouldn't cost
anything."Jon Mills, who is Teresa Earnhardt's attorney, said the way
the system worked before had a greater risk in harming individuals.
"Photos I truly think are grotesque and gruesome are not going to be
revealed," he said. "The written autopsy is available and is still available,
which is considered by expert witnesses to be more valuable because photos,
although gruesome, are superficial medically."He referred to the death
of racecar driver Neil Bonnet as an example of when the release of autopsy
photos caused harm to the family. After his death in 1994 during a practice run
for the Daytona 500, his children saw his autopsy photos online, Mills said.
"It was very disturbing," he said."The public records issue is
about obtaining information, and greater information is available in the written
transcript of the autopsy. [The law] seems to be fair and balanced because of
the really, very severe impact of disclosing of those photos," he
said.If there is cause to disclose those pictures, then the person just
needs to go to the court to do so, he said. But Julin doubts that the public, much less
journalists, will spend the time or resources to request the records."A journalist for
the most part will not be able to persuade their editor that they need to hire a
lawyer to draft a document filed with the court and have a hearing two weeks or
two months down the road to see something," he said.
For More Information: Read previous coverage
- Fla. voters limit FOI exemptions in state The Report, Winter 2002-03
- Autopsy photos remain sealed The Report, Fall 2002
- Court rules Fla. law restricting access to autopsy photos is constitutional News Flash, 7/26/2002
- Journalism groups question Fla. autopsy photo law The Report, Winter 2001-02
- Journalism organizations challenge Florida law restricting autopsy photos News Flash, 11/21/2001
- Death threats, vandalism tail student newspaper’s drive for autopsy photos The Report, Fall 2001
- Student newspaper loses battle for access to autopsy photos News Flash, 6/18/2001
- Alligator crawls into autopsy photo swamp The Report, Spring 2001
© 2003 Student Press Law Center
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