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Florida Supreme Court allows Earnhardt's autopsy photos to remain sealed
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.

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