Expanding personal privacy

From the Summer 2011 issue of The News Media & The Law, page 23.

Florida’s reputation for having one of the best open records laws in the country has been seriously threatened by the recent passage of an expansive exemption that mandates the withholding of video, audio and photographs depicting the “killing of a person” — and the surrounding moments — to anyone but family without a court order.

The Florida law did not come out of the blue. For the past decade, significant shifts toward closure of these types of records have evolved in state and federal laws.

There have always been exemptions to open record laws to protect the privacy of those named or depicted in public records. The federal Freedom of Information Act contains two such exemptions; Exemption 6 and Exemption 7 allow for the withholding of documents that could lead to an “unwarranted invasion of personal privacy.”

Most state open records laws also contain provisions for privacy and most situations where these exemptions are applied are relatively obvious. Information that is commonly redacted from public records includes social security numbers, and the names and addresses of private citizens, though the latter information raises issues about whether or not its release invades one’s privacy.

However, in the last 10 years, exemptions created in the name of protecting privacy have expanded to include another type of privacy right: the right of family members to keep private autopsy and death scene video and photographs of their deceased loved one. Death scene photographs, first withheld by the U.S. Supreme Court in 2004 in National Archives and Records Administration v. Favish, were not withheld because of the privacy rights of the decedent — his death extinguished those rights — but under the privacy rights of his family.

Florida, in particular, has used the right of personal privacy invested in family members to pass laws removing potentially gruesome or disturbing images from the public records law. In 2001, while Favish was still being litigated, the state passed a law to exempt autopsy photographs and video from open records laws. Passed in the wake of the death of NASCAR driver Dale Earnhardt, autopsy photographs, video and audio recordings are made available only to family members unless under court order. The state is again making waves after the recent passage of a potentially even more expansive exemption, one that mandates the withholding of video, audio and photographs depicting the “killing of a person” — and the surrounding moments — to anyone but family without a court order.

The death of Vincent Foster Jr. and the Favish case

Vincent Foster Jr. was a close friend and confidant of President Bill Clinton and First Lady Hillary Clinton and worked as the White House deputy counsel. In July 1993, amid scandals regarding the firing of a number of members of the White House travel office and the Whitewater real estate investigation, Foster committed suicide.

Foster shot himself in Fort Marcy Park in Virginia, just outside Washington, D.C. His death, ruled a suicide, sparked a number of conspiracy theories, including the rumor that Foster was murdered to keep quiet his and President Clinton’s involvement in the scandals.

Skeptical about the government’s classification of Foster’s death as a suicide, Allan Favish, initially acting in his capacity as associate counsel for Accuracy in Media, filed a federal Freedom of Information Act request for, among other things, 10 photographs that depicted Foster taken by U.S. Park Police officers at the scene of his death.

After losing twice at the U.S. District Court level — the first case was brought on behalf of Accuracy in Media, the second case brought by Favish himself — Favish won on appeal in the U.S. Court of Appeals in San Francisco (9th Cir.).

The Ninth Circuit held that Favish’s claims that the federal investigation was “grossly incomplete and untrustworthy” was, if true, in line with the “statutory purpose [of FOIA] that the public know what its government is up to.” As a result, the court found that the public interest in the disclosure of the photographs outweighed the family’s privacy interests in withholding the documents.

Importantly, the Circuit Court agreed with the District Court that the Foster family had a personal privacy right in the death scene photographs, even though the photographs contained no information about anyone other than the decedent. The reversal was based on the court finding that the family’s privacy rights did not outweigh the public interest in disclosure.

On remand to the District Court, five photographs were ordered to be released. On appeal, the Circuit Court upheld the District Court in regards to all but one photograph. The decision was then appealed to the U.S. Supreme Court, which heard the case in December 2003, more than 10 years after Foster’s suicide.

Before the Supreme Court, Favish argued that the family had no personal privacy interests in the photographs because they depict only the decedent, not his family. Favish argued that personal privacy is held by but one person and can be claimed by only the person about whom information is to be released.

Families do have privacy interests in intrusions against their family members, the Court found. Certainly, “[t]his does not mean that the family is in the same position as the individual who is subject of the disclosure,” but there are clear and distinct rights that family members have “to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member’s remains for public purposes,” the court held.

The court limited its decision to “death-scene images,” and then weighed those privacy rights against the public interest in the disclosure of the photographs. In finding that the photographs should not be released, the court dismissed Favish’s claims of investigatory incompetence, finding that “the requester must establish more than a bare suspicion in order to obtain disclosure.”

2001: The Earnhardt exemption to Florida’s public records law

In February 2001, while the Favish case was in the federal appellate courts, Dale Earnhardt, a popular NASCAR driver, died as a result of a crash during the nationally televised Daytona 500. Controversy arose soon thereafter surrounding Earnhardt’s cause of death after reports surfaced that Earnhardt’s car had a faulty lap belt.

There were conflicting reports about the importance of the faulty safety belt in Earnhardt’s death. One doctor claimed the belt’s failure caused Earnhardt’s head to hit the steering wheel, fracturing his skull and killing him. However, the autopsy showed that the seat belt failure was unrelated to Earnhardt’s cause of death.

The Orlando Sentinel requested the autopsy photographs in order to examine them and attempt to discover the “real” cause of death, but Earnhardt’s widow contested the release, despite autopsy photographs being public records under the Florida open records act.

Litigation over the autopsy photographs began after the Volusia County Medical Examiner, which performed the autopsy and held the records, notified Teresa Earnhardt and NASCAR that the records had been requested by several media outlets and members of the public, and that they would be released.

Earnhardt sued Volusia County to prevent the release of the photographs and video of the autopsy. Several media outlets, including the Sentinel, intervened in the case, arguing the photographs and video were public records and should be released.

The trial court ruled against the media companies, who had argued their information request denial was unconstitutional under Florida state and federal laws. The litigation then became focused on a new law passed by the Florida Legislature soon after the controversy erupted.

The Earnhardt Family Protection Act was passed by the Legislature in early 2001. The bill had widespread support from Teresa Earnhardt, the public, the Legislature and then-Gov. Jeb Bush. The bill exempts from disclosure photographs, video and audio recordings from autopsies to anyone but the surviving spouse, parent or child of the deceased without court order upon a showing of good cause.

Release of these images and recordings “could result in trauma, sorrow, humiliation, or emotional injury to the immediate family of the deceased, as well as injury to the memory of the deceased,” the bill says. Releasing materials in violation of the law is a felony that can result in up to five years in prison.

The release of documents to nonfamily members may only be done through a court order upon a showing of “good cause.” Good cause is found after the court conducts a balancing test, weighing the public’s interest in the information — generally considering how the information sheds light on the government’s performance of its duties — against the family’s right of privacy in the images and video.

In court, the media parties argued that the law was broader than necessary and that “good cause” was not properly defined by the Legislature. The Florida appellate court disagreed, holding that the law was specific and limited, in that it applied only to autopsy photographs and video and audio recordings. The court also held that the statute provided clear and specific criteria for a court to consider a good cause appeal.

The media parties also argued that the retroactive reach of the statute was unconstitutional. The court held that the law does not impair vested rights or create new obligations or impose new penalties, and therefore the statute is constitutional and the retrospective application of the statute can remain. An appeal to the U.S. Supreme Court was denied in December 2003, just two days before the court heard arguments in the Favish case.

The Earnhardt Family Protection Act remains law in the state of Florida.

2011: Florida adds a new exemption

Signed into law in June and effective on July 1, the new Florida legislation, much like the Earnhardt bill, exempts photographs, audio and video recordings. However, the new law goes beyond autopsies and exempts from disclosure images held by government agencies that depict the “killing of a person” from being mandatorily released under the state public records act.

Also included in the exemption are depictions of the events “immediately preceding or subsequent to the acts” that caused the killing. Only family members, specifically designated agents of family members or other government agencies are allowed to obtain such records without first obtaining a court order. Other citizens, such as the news media, can only get access to or make copies of the records by first going to court.

A court order may be granted upon a showing of “good cause.” Good cause, as in the Earnhardt bill, is determined based on whether disclosure is necessary for the public evaluation of governmental performance, the seriousness of intrusion into the privacy rights of the deceased’s family, and the availability of similar information in other public records.

The new law, which like the Earnhardt bill applies retroactively to records already in the state’s possession, could potentially insulate the government from scrutiny over deaths that occur as a result of government action, including those that take place in prisons or during a conflict with police caught by a dashboard camera in a police car, or any investigative material that comes into state possession.

The First Amendment Foundation, a Florida organization that advocates for greater public oversight of the government through the state’s open records and open meetings laws urged Florida Gov. Rick Scott to veto the bill because requiring “citizens and the media to pay court costs and legal fees in order to copy or even view the records . . . greatly restricts public oversight of the actions of government employees.”

Legislative findings contained within the law say releasing the recordings would be “injurious” to the family of the individual whose death is depicted in the recording. In statements during the bill process, the Legislature noted incidents where police officers had been killed as the impetus for drafting the bill, saying when the videos are posted online, it forces the families to relive the tragedy.

However, the law goes further to cover more than just those incidents caught by police or government cameras. It would cover circumstances where police confiscate video footage from private citizens and incidents where private citizens are killed by police action.

The videotape of the 2006 death of 14-year-old Martin Lee Anderson is an example of a video that falls under the new law. Without going to court and showed good cause, and incurring litigation costs, a video like this could potentially never be viewed by the public.

Anderson died after only one day at the Bay County Boot Camp, a youth detention center in Florida, operated by the Bay County Sheriff’s Office. After his death, the camp guards claimed Anderson simply collapsed and the medical examiner ruled the death the result of natural causes due to “complications from sickle cell trait.”

However, a video capturing Anderson’s death told a different story. It showed Anderson collapse during workouts and guards using ammonia to revive him. Public outcry over the video led to another autopsy, which concluded that Anderson died of suffocation as the result of the actions of the guards. As a result of the controversy, the state system of juvenile boot camps was closed, and seven guards and a nurse at the Bay County Boot Camp were charged with manslaughter, though all were ultimately acquitted.

Without the video, Anderson’s true cause of death might not have been discovered. It is unclear if anyone would have gone to court and incurred the costs to get the video when everyone involved in the incident and its investigation — guards and the medical examiner — all claimed Anderson died of natural causes.

While the bill was being considered, the First Amendment Foundation also argued that the law was far too broad. It not only withholds depictions of someone’s actual death, but also the parts of the video or audio recordings and photographs from the moments “immediately preceding or subsequent to” the death. After inquiring, The First Amendment Foundation was never given clarification as to a definition for that time frame.

Jim Rhea, director of the First Amendment Foundation, said he is concerned that more than just the minutes preceding and subsequent to the death will be withheld. Rhea believes the exemption could be used to potentially redact hours of footage.

The First Amendment Foundation called the bill “bad public policy” in an opposition letter and, while calling the images contained in these records admittedly “gruesome,” the Foundation argued that access to these records “is vital to ensure oversight of governmental action and to ensure governmental officials and employees are held accountable.”

Just weeks after the law went into effect on July 1, it faced its first challenge from the media. On July 10, 18-year-old Eric Perez died while in police custody at the West Palm Beach juvenile detention center. Newspaper reports said Perez appeared to be suffering from severe hallucinations and died hours after guards were first made aware that he had become ill.

Perez’s mother, Maritza Perez, told The Miami Herald that she has been told conflicting stories about the circumstances surrounding her son’s death. She said she has been told that her son died of breathing problems, that he died of an enlarged heart and that he had a stroke. Several hours passed between when her son first showed symptoms and when an ambulance was finally called. It arrived after Eric Perez died.

The Miami Herald requested the video from the juvenile detention center, which said it is reviewing the tapes and redacting as required by the new law. Releasing the video in violation of the law is a felony.

Perez told the Herald she favors “the release of any recordings that shed light on how her son died.” Perez, who initially had requested access to the video, dropped the request in early August, citing a desire to await the results of any prosecutions resulting from her son’s death. The court pleading reserved the right to renew the request for the video at a later date.

With the conflicting reports of how Eric Perez died and why the guards did not call for an ambulance sooner, Perez’s decision to withdraw her request for the tapes is an example of what can happen when the public and the news media must rely on families to request footage and subsequently to release it to the press. Over the course of just a couple weeks, Perez went from publicly avowing to make the video public to withdrawing her request, all because criminal charges were brought in her son’s case.

If Perez is satisfied with the prosecution and never renews her request, it may be impossible for the public to know what actually happened and if the government prosecuted the right people. Without Perez actively obtaining the video herself, anyone who wants to see the video to verify the government’s story — remember, in Anderson’s case, the guards and the video told very different stories — will have to go to court and argue for the right to see the tape.

Rhea said relying on a judge to find good cause to release the tapes is a bad system that leaves the media and the public to incur expensive litigations costs without a guarantee of a positive outcome, no matter how compelling the public interest appears to be.

Recognizing that families have a privacy interest in keeping potentially gruesome images of their deceased loved ones from the public is not necessarily a controversial idea, Rhea said. Such laws enjoy widespread support from the public when they are passed, he acknowledged. The problem arises when legislatures like Florida’s continuously expand the reach of these rights.

“This is [an] Internet-based problem,” Rhea said. “In the past, first of all, a newspaper couldn’t publish [videos of deaths] and a broadcast company is likely not to have done that . . . This pretty much boils down to, what is a journalist and . . . the Internet and the fact that there are sites dedicated to nasty things like this . . . And I think if you didn’t have that, you wouldn’t have responses like this.”

Rhea said the Earnhardt law and the newest exemption pose a real risk to the ability of the media and government oversight groups to hold the government accountable for their actions. Rhea noted that while the new law was supposedly passed to protect the families of police officers killed within view of their cars’ dashboard cameras, there are also police officers whose misconduct will be shielded from review.

“It is of concern,” Rhea said, “because anything that reduces government oversight of some of these events . . . when you have to rely on a judge to go exercise any sort of oversight, . . . it’s worrisome, especially as each of these exemptions add up.”