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Second court says Florida can bar autopsy photo disclosure

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    NMU         FLORIDA         Freedom of Information         Jul 17, 2002    

Second court says Florida can bar autopsy photo disclosure

  • A Florida appeals court in Volusia County affirmed a lower court ruling that the autopsy law enacted following the death of race-car driver Dale Earnhardt is constitutional, but it asked the state high court to make the final decision on the matter.

A Florida appellate court ruled July 12 that a state statute prohibiting release of autopsy photographs is constitutional and may also be retroactively applied.

The court then certified those questions to the Florida Supreme Court for a final ruling.

The Volusia County appeals court was the second Florida court in two weeks to find the statute constitutionally sound. The other case was decided in Broward County on July 3.

Dale Earnhardt died Feb. 18, 2001, in a fatal car crash during the Daytona 500 race. An autopsy was performed the following day, during which 33 photographs were taken to back-up the dictation system used by the Volusia County medical examiner to gather information for his written autopsy report.

The report, including post-crash photographs of Earnhardt’s car, a toxicology report, and a sketch showing the markings of Earnhardt’s body, was made immediately available to the public. Three days later, Earnhardt’s wife Teresa asked the court to enjoin the medical examiner from releasing the photographs. The injunction was granted before anyone requested the report.

The following day, the Orlando Sentinel requested the autopsy report. The Earnhardts, the medical examiner and the Sentinel agreed after mediation to allow an expert to examine the photographs and issue an independent report, after which the photographs would be sealed. The expert’s report differed from that of the medical examiner raising questions about safety practices.

The day the agreement was made, the University of Florida student-run newspaper the Independent Florida Alligator, requested the photographs.

The Florida Legislature then passed and Gov. Jeb Bush signed a law prohibiting the release of autopsy records without good cause. The law made disclosure a felony, punishable by up to five years in prison and up to $5,000 in fines.

The Earnhardts amended their claim seeking to permanently prevent the medical examiner’s release of the autopsy photographs. The Alligator filed a cross claim against the medical examiner seeking to inspect and copy the photographs under the state’s open records law.

The state trial court found in favor of the Earnhardts. Judge Joseph G. Will held that the new statute was constitutional and could be retroactively applied.

The appellate court found that the Legislature sufficiently stated a need for the exemption. It also determined that, because of increased availability of records on the Internet, the release of autopsy photographs could caused greater injury to the families of deceased.

Several news organizations, including the Florida Society of Newspaper Editors, the First Amendment Foundation, The Reporters Committee for Freedom of the Press, and Student Press Law Center, intervened and submitted a friend-of-the-court brief in this case.

The court rejected the arguments made by Campus Communications that the statute was overly broad since the statute only applies to autopsy photographs and audio and video recordings of the autopsy. The court also rejected the argument that the provision which limits the release of autopsy photographs without good cause is not sufficiently defined and held that the statute was constitutional.

The court also found that the statute was remedial and so could be applied retroactively, saying a right to inspect the autopsy photographs is a public right that can be abrogated by any statutory exemptions the legislature chooses to enact.

The court asked the Florida Supreme Court to address the constitutionality of the statute and whether it may be applied retroactively.

(Campus Communications v. Earnhardt; Media counsel: Thomas R. Julin and D. Patricia Wallace; Hunton & Williams, Miami) MM

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© 2002 The Reporters Committee for Freedom of the Press

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