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Judge finds autopsy photos law does not violate state constitution

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    NMU         FLORIDA         Freedom of Information         Jul 9, 2002    

Judge finds autopsy photos law does not violate state constitution

  • A Florida law passed after the death of NASCAR racer Dale Earnhardt lawfully restricted the release of autopsy records to protect privacy, a Florida judge ruled.

A Broward County, Fla., circuit court judge ruled July 3 that autopsies are “presumptively private,” upholding a state law passed following the death of NASCAR racer Dale Earnhardt and rejecting claims that it violated the open government guarantees of the state constitution.

Judge Leroy H. Moe held that autopsy records should not be in public hands absent good cause. Moe adopted most of his decision from a decision made last year by Volusia County Circuit Judge Joseph Will on similar issues.

Will’s July 10, 2001, decision came after Teresa Earnhardt sued the medical examiner of Volusia County to prohibit the release of her husband’s autopsy records to the public.

Earnhardt died as a result of a race at Daytona International Speedway on Feb. 18, 2001. An autopsy was performed on him the following day and 33 autopsy photographs were taken. NASCAR sent a physician to view the autopsy records on Feb. 21 and report back to them. The autopsy records were considered public until Teresa Earnhardt filed for temporary injunction Feb. 22 to prohibit their release.

Several news organizations requested copies of the Earnhardt autopsy photographs, but because of the temporary injunction the Volusia County medical examiner denied the requests.

After the temporary injunction was in place but before the court held a hearing for a permanent injunction, the Florida legislature passed a law prohibiting release of autopsy records without a showing of good cause. Release could constitute a felony punishable by up to five years in prison and a $5,000 fine.

Will upheld the law as constitutional.

In one of the first challenges to the new law, both the Orlando Sentinel and the South Florida Sun-Sentinel sued the chief medical examiner of Broward County seeking autopsy photographs not of Earnhardt but of people who died in the last year. Several news organizations joined in the case, including the Reporters Committee for Freedom of the Press, which joined a friend-of-the-court brief. The plaintiffs argued that the law should be struck down as unconstitutional because it was overly broad. They also argued the law interfered with medical research, education and civil and criminal litigation.

Despite Moe’s concerns during the hearing that the state’s open records laws may be more important than preventing the pain families might feel when graphic autopsy photographs of loved ones are made public, his decision held differently.

“The right to privacy, the right to freedom of press and speech, the right of the people to have access to public records and the right to be left alone are important rights to all who live in this country,” Moe wrote. “They are not absolute rights, however, and they frequently clash, as they did in this case. The legislature has indeed applied a proper balancing of these rights in enacting this legislation.”

(Orlando Sentinel v. Perper; Media Counsel: David Bralow, Orlando) MM

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© 2002 The Reporters Committee for Freedom of the Press

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