Court rules Fla. law restricting access to autopsy photos is constitutional

FLORIDA — A state appeals court ruled July 12 that Florida’sEarnhardt Protection Act, which restricts public access to autopsyphotos, is constitutional.

The law, passed after racecar driver Dale Earnhardt’s deathduring the Daytona 500 in February 2001, was challenged by severalnews organizations, including the University of Florida’s IndependentFlorida Alligator, on grounds that it was in conflict withpublic information rights in the Florida Constitution.

The Florida Court of Appeals for the Fifth District in DaytonaBeach ruled the right to privacy outweighed any public interestin the 33 photos, taken as backups to the assistant medical examiner’stape-recorded notes of the autopsy. The court also rejected theargument that the act was overly broad, noting that it only appliesto videos, photos and audio recordings of autopsies.

The court did, however, certify the case for review by theFlorida Supreme Court. According to Florida law, had the courtnot earmarked the case for review, the decision would have beenfinal.

"We respectfully hold that the panel of three justiceswere incorrect in their decision, but we do appreciate the factthat they found that part of our argument involved two seriousconstitutional questions," said Alligator GeneralManager Ed Barber.

The Alligator‘s board of directors has decided to moveforward with the case to appeal to the Florida Supreme Court,Barber said.

Earnhardt was killed Feb. 18, 2001, when his car, travelingat speeds in excess of 150 mph, hit the wall on the final turnat the Daytona 500. The driver, a seven-time NASCAR Winston Cupchampion, died instantly of head injuries.

The autopsy was performed the following day in accordance withstate law regarding accidental deaths.

The Orlando Sentinel originally sought to review thepictures under state law thatat the time classified autopsy photos as public records. The paper said that reviewingthe photos would help determine whether better safety equipmentcould have saved Earnhardt’s life.

The paper mediated with the Earnhardt’s widow, Teresa, andagreed to allow an expert to examine the photographs and issuean independent report, after which the photographs would be sealed.

The day the agreement was made, the Alligator requestedthe photographs. Under a temporary injunction granted to TeresaEarnhardt, the paper’s request was denied.

Earnhardt’s widow later asked the Florida legislature to passa bill sealing all autopsy photos.

The bill was signed into law by Gov. Jeb Bush in the springof 2001, allowing retroactive coverage of the permanent injunction,barring any further viewing of the photos. The law makes it afelony punishable by up to five years in prison and $5,000 infines, for release of the photos without a court order.

Campus Communications Inc., the independent student companythat publishes the Alligator, filed suit, arguing thatthe law was too broad and conflicted with the state constitution.

The trial court found in favor of the Earnhardts, holding thatthe new statute was constitutional and could be retroactivelyapplied.

The Student Press Law Center and the Reporters Committee forFreedom of the Press joined with other media groups to file afriend-of-the-court brief in the case, arguing that there is noright of privacy concerning public records. The court disagreed.

"The Florida Constitution gives every citizen the rightto inspect and copy public records so that all may have the opportunityto see and know how the government functions," Judge ThomasSawaya wrote in the opinion.

"It is also a declared constitutional principle that everyindividual has a right to privacy," he continued.

Alligator attorney Tom Julin said he was disappointedwith the ruling, which mirrored a decision handed down earlierthis month in Volusia County. He was optimistic, however, thatthe Florida Supreme Court could potentially hear the case.

Read our previous coverage.