The Florida flip-flop

From the Spring 2001 issue of The News Media & The Law, page 3.

In the last issue of The News Media & The Law, I used this space to extol the virtues of Florida’s open records laws. I lauded the access the public had to ballots, camera access to court hearings and the rapid access to court decisions that was demonstrated during the presidential election recount.

Florida leads the way in open government, I claimed.

Florida’s legislators have spent the last three months making me look Pollyannaish. Florida politicians are leading the way, all right. They’re leading state lawmakers all over the country in an effort to close access to a category of records that many states had always kept open — autopsy records.

Like most states, Florida has built a body of sunshine laws over a long period of time. The legislative process for each of the laws was measured and deliberate. One presumes careful thought went into crafting Florida’s constitutional provision that guarantees citizens access to records of all three branches of government.

What’s most disturbing about Florida’s new Earnhardt Family Relief Act is not the fact that it bans the release of autopsy photos. Rather, it is that the death of one celebrity can cause a legislature to blind itself to reason and in 21 days (near-lightning speed for a legislature) ramrod through legislation that dramatically changes the way open government works in that state.

Prior to February 18, 2001 — the day Earnhardt died after hitting the concrete wall at the Daytona 500 — about half of the states allowed access to records of autopsies performed by medical examiners. Some, including Florida, considered those records to include autopsy photographs. There were few, if any, complaints about access to autopsy photographs.

The St. Petersburg Times, in fact, had published several photos on its web site last summer showing suspicious injuries on the limbs of Lisa McPherson, a woman who died while in the care of her church. The public had a strong interest in the case because there were questions about the care given to McPherson by the church and the medical examiner’s office had released conflicting reports about the cause of her death. Editor Paul Tash said there was little or no reaction to the newspaper’s use of the photographs. But, then again, she wasn’t famous.

Just days before Earnhardt’s crash, the Orlando Sentinel published a series of stories about the NASCAR’s use of Head and Neck Support (HANS) devices. The Sentinel made a routine request for autopsy photos to follow up on stories about Earnhardt’s accident and to find out if he had been killed in the same way as three other drivers in the past year. It was logical and responsible for the Sentinel to try to gather as much information about the crash as possible, including autopsy photos, as part of its continuing coverage of NASCAR safety.

It was predictable that in the days following Earnhardt’s exceptionally public death, the calls would begin to protect his family’s privacy. But Florida’s open government advocates were overwhelmed in their efforts to conduct a rational debate about the merits of maintaining full access to all autopsy records.

Florida’s lawmakers have forgotten the provision in the state constitution that specifically says the right to privacy does not trump all other rights. It is the duty of lawmakers and courts to balance the competing right of privacy with the benefit the public may gain from an open medical examiner’s process.

Autopsy photos are unpleasant to look at. But there are few things more unpleasant to look at than the videotape of a charismatic, vital man fatally ramming his car into a wall while knowing there was a safety device available that may have saved his life.

Ironically, the ultimate violation of Dale Earnhardt’s privacy may have been the live television coverage of his death. But we don’t hear privacy advocates pushing for the destruction of the Daytona 500 video archives. Rather, we hope continued coverage of this accident and the photograph of Earnhardt’s car on the cover of this magazine draw attention to the life-saving potential of the HANS device written about so presciently by the Orlando Sentinel. — Lucy Dalglish