Florida Supreme Court allows Earnhardt’s autopsy photos to remain sealed

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FLORIDA— The autopsy photos of racecar driver Dale Earnhardt will remainsealed as a result of the Florida Supreme Court’s decision to not test the constitutionality ofhis namesake statute, which exempted those and similar autopsy records frompublic disclosure.On July 1, a 4-3 majority of the state’s highest courtdeclined to hear the appeal filed by the University of Florida’s studentnewspaper. The Independent Florida Alligator was asking the court tothrow out the “Earnhardt Family Protection Act” on the grounds that itrestricted all videos, photos and audio recordings taken during autopsies priorto the law’s passage. Those autopsy records had been available to the publicunder the Florida Public Records Act. At issue in the case were 33photos taken by an assistant medical examiner during Earnhardt’s autopsy, whichwere used as back-up to his tape-recorded notes. On Feb. 18, 2001, theseven-time NASCAR Winston Cup champion died instantly of head injuries when hiscar, traveling at speeds in excess of 150 mph, hit the wall on the final turn atthe Daytona 500. The autopsy was performed the following day in accordance withstate law regarding accidental deaths.The newspaper requested the photosbefore the exemption to the sunshine law was signed by Gov. Jeb Bush just over amonth after the crash, but the law was applied retroactively. Without aruling by the high court, a decision in the Fifth District Court of Appeals lastsummer will stand in the case. In that decision, the appellate court rejectedthe newspaper’s argument that the law was overly broad because it denied accessto these records in all previous and future autopsies, irrespective if there areany living family members who might be distressed by their release.Specifically, the appeals court ruled that the right to privacy ofEarnhardt’s widow, Teresa, outweighed any public interest into the autopsyphotos. Under the “Earnhardt Family Protection Act,” courts can orderthe release of autopsy materials if the requesting party has good cause to trumpa family’s privacy. The Orlando Sentinel, which was the firstpaper to request Earnhardt’s photos, planned to review them to determine whetherbetter safety equipment could have saved his life.The paper mediatedwith Teresa Earnhardt, who agreed to allow an expert to examine the photographsand issue an independent report, after which the photographs would be sealed.After the settlement, the Alligator requested the photos in accordancewith the sunshine law. Teresa Earnhardt then successfully lobbied the stateLegislature to pass the bill to exempt the photos fromdisclosure.Medical examiners who release these records under violationof the law can be sentenced up to five years in prison and fined $5,000.Newspaper reporters who illegally publish the information also could face thefelony charge.The balance between public interest and family privacy hasbecome the central debate surrounding the Earnhardt case and other cases that have beenbrought to court since the law’s passage. A case currently in front of the state court ofappeals involves access to autopsy photos when there are no known livingrelatives. Tom Julin, who represented Campus Communications, Inc., thepublisher of the Independent Florida Alligator, said it is easier to seein the context of that case that the law is overly broad and unconstitutionalbecause it cannot be justified that someone will be hurt and disturbed by itsrelease.In rejecting the Earnhardt case without issuing any comment,Julin said the supreme court ducked the issue. “This is an instancewhere the politics overtook the Florida Constitution and law here,” Julin said.”In the Earnhardt case, neither the state Legislature nor the governor nor thesupreme court could stomach the result that was clearly required, so they turnedtheir back on the law. It is a sad commentary on people’s willingness to standup for principles.”Julin said many people are finding the lawrestrictive.”The law as it currently exists makes it so expensive anddifficult to get at the records that only in rare circumstances that someone hasthe resources and initiative to put on a case in front of the judge to show thatit is required under the law,” he said. “Whereas before, you could just go downto the medical examiners office and get those records, and it wouldn’t costanything.”Jon Mills, who is Teresa Earnhardt’s attorney, said the waythe system worked before had a greater risk in harming individuals.”Photos I truly think are grotesque and gruesome are not going to berevealed,” he said. “The written autopsy is available and is still available,which is considered by expert witnesses to be more valuable because photos,although gruesome, are superficial medically.”He referred to the deathof racecar driver Neil Bonnet as an example of when the release of autopsyphotos caused harm to the family. After his death in 1994 during a practice runfor the Daytona 500, his children saw his autopsy photos online, Mills said.”It was very disturbing,” he said.”The public records issue isabout obtaining information, and greater information is available in the writtentranscript of the autopsy. [The law] seems to be fair and balanced because ofthe really, very severe impact of disclosing of those photos,” hesaid.If there is cause to disclose those pictures, then the person justneeds to go to the court to do so, he said. But Julin doubts that the public, much lessjournalists, will spend the time or resources to request the records.”A journalist forthe most part will not be able to persuade their editor that they need to hire alawyer to draft a document filed with the court and have a hearing two weeks ortwo months down the road to see something,” he said.

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