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Newspapers drop challenge to Earnhardt autopsy law

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    News Media Update         FLORIDA         Freedom of Information    

Newspapers drop challenge to Earnhardt autopsy law

  • Two Florida newspapers have dropped their challenge to a state law restricting access to autopsy photographs, which was passed after requests were made for access to the autopsy photos of the late NASCAR driver Dale Earnhardt Sr.

April 14, 2004 — The Orlando Sentinel and the (Fort Lauderdale) Sun-Sentinel Monday dropped their lawsuit challenging the constitutionality of a Florida law that restricts access to autopsy photographs.

“We feel it would be difficult to prevail following the United States Supreme Court’s decision in the Vince Foster case,” Charlotte M. Hall, editor of the Sentinel , said in a prepared statement.

The U.S. Supreme Court decided National Archives and Records Administration v. Favish March 30. It ruled that access to certain autopsy photos of Clinton White House counsel Vince Foster could be withheld under the privacy arm of the law enforcement exemption to the federal Freedom of Information Act. The court unanimously held that the “privacy” of Foster’s surviving family members outweighed the public interest in release of the photos.

The attorney for The Orlando Sentinel , David Bralow, explained that a challenge to the Florida law is still possible after the Favish decision. If a case arises in which it can be argued that the public’s right to know outweighs the privacy interests of the deceased’s family, another challenge may be brought, Bralow said.

The dispute over access to autopsy photos was precipitated by the death of NASCAR driver Dale Earnhardt Sr. during the Daytona 500 on Feb. 18, 2001. According to the autopsy report, Earnhardt died of a massive blow to the head, which was attributed by NASCAR physician Dr. Steve Bohannon to seatbelt failure.

The Sentinel had published a series of articles on NASCAR safety in the weeks before Earnhardt’s death, and requested the autopsy photos to follow up on that story. Such photos were open records under Florida law.

Earnhardt’s widow Teresa protested their release and obtained an injunction prohibiting it. The Sentinel sued, and the case was eventually settled under an agreement in which a court-appointed expert could view the photos for the newspaper, but could not publicly release them.

The court-appointed expert, Dr. Barry Meyers, a physician at Duke University, said the photos showed that Earnhardt had not been killed by seatbelt failure, but instead from a violent head-whipping action during the accident. A safety device that had not been required by NASCAR, and was refused by Earnhardt, is designed to prevent such head-whipping.

On March 30, 2001, Florida Gov. Jeb Bush signed a law requiring a judge to find “good cause” before autopsy photos can be released to the public.

The Sentinel and the Sun-Sentinel responded by filing a lawsuit in Broward County Circuit Court for access to a broad range of autopsy photos in which there was a great public interest. They requested photos of unknown decedents, prisoners who died in custody, and victims of auto accidents on the public highways. These categories would not include the Earnhardt photos. They argued that the law violates the right of access to public records under the Florida Constitution.

Several media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in the case.

On July 3, 2002, Judge Leroy Moe ruled against the newspapers, holding, “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.

“They are not absolute rights, however, and they frequently clash, as they did in this case,” Moe continued. “The legislature has indeed applied a proper balancing of these rights in enacting this legislation.”

The newspapers appealed to the Fourth District Court of Appeal in West Palm Beach, but withdrew the appeal earlier this week.

A challenge to the law on different grounds was brought by The Independent Florida Alligator , a student newspaper at the University of Florida. The Florida Supreme Court declined to hear that case in July 2003, and the U.S. Supreme Court declined to hear it in December.

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

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© 2004 The Reporters Committee for Freedom of the Press

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