Autopsy photos remain sealed

FLORIDA ‘ A state appeals court ruled July 12 that Florida’s Earnhardt Protection Act, which restricts public access to autopsy photos, is constitutional.

The law was passed after racecar driver Dale Earnhardt’s death during the Daytona 500 in February 2001.Several news organizations, including the University of Florida’s Independent Florida Alligator, challenged the law on grounds that it was in conflict with public information rights in the Florida Constitution.

The Florida Court of Appeals ruled the right to privacy outweighed any public interest in the 33 photos, taken as backups to the assistant medical examiner’s tape-recorded notes of the autopsy. The court also rejected the argument that the act was overly broad, noting that it only applies to videos, photos and audio recordings of autopsies.

‘We respectfully hold that the panel of three justices were incorrect in their decision, but we do appreciate the fact that they found that part of our argument involved two serious constitutional questions,’ said Alligator general manager Ed Barber.

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

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

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

The Orlando Sentinel originally sought to review the pictures in accordance with the state law then in effect that classified them as public records. The paper said that reviewing the photos would help determine whether better safety equipment could have saved Earnhardt’s life.

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

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

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

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

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

The trial court found in favor of the Earnhardts, holding that the new statute was constitutional and could be retroactively applied.

case: Campus Communications Inc. v. Earnhardt, 2002 WL 1483806 (Fla. App. 5th Dist. July 12, 2002)