FLORIDA — Photographs, videos and audio recordings taken during autopsies will remain out of the public eye as a result of the Florida Supreme Court’s decision to not test the constitutionality of a two-year-old law that sealed those records.
In July, a 4-3 majority of the court declined to rule whether autopsy photos of racecar driver Dale Earnhardt can be excluded from public records under the law that was passed following his death at the Daytona 500. Without a ruling by the high court, a decision in the Fifth District Court of Appeals last summer will stand in the case. The appeals court ruled that the right to privacy of Earnhardt’s widow outweighed any public interest into the photos.
The petition for review was filed by the University of Florida’s student newspaper. The Independent Florida Alligator was asking the high court to throw out the “Earnhardt Family Protection Act” on the grounds that it closed records for autopsies that were performed prior to the law’s passage. The Alligator requested Earnhardt’s autopsy records under the Florida Public Records Act before Gov. Jeb Bush signed the “Earnhardt Family Protection Act” just over a month after the February 2001 crash. The law, however, was applied retroactively to reject the paper’s open-records request.
At issue in the case were 33 photos taken by an assistant medical examiner during the autopsy, which was performed the day after the crash in accordance with state law regarding accidental deaths. Earnhardt died instantly of head injuries when his car hit the wall on the last lap of the race.
The Orlando Sentinel, which was the first paper to request Earnhardt’s photos, planned to review them to determine whether better safety equipment could have saved his life.
The Sentinel mediated with Teresa Earnhardt, who agreed to allow an expert to examine the photographs and issue an independent report, after which the photographs would be sealed. All other requests, including the Alligator’s, was denied until she successfully lobbied the Florida Legislature to pass the bill.
Medical examiners who release autopsy records under violation of 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 the felony charge.
Under the “Earnhardt Family Protection Act,” courts can order the release of autopsy materials if the requesting party has good cause to trump a family’s privacy. A case currently in front of the state court of appeals involves access to autopsy photos when there are no known living relatives.
Tom Julin, who represented Campus Communications, Inc., the publisher of the Alligator, said it is easier to see in the context of that case that the law is overly broad and unconstitutional because it cannot be justified that someone will be hurt and disturbed by its release.
In rejecting the Earnhardt case without issuing any comment, Julin said the Florida Supreme Court ducked the issue.
“The law as it currently exists makes it so expensive and difficult to get at the records that only in rare circumstances that someone has the resources and initiative to put on a case in front of the judge to show that it is required under the law,” he said. “Whereas before, you could just go down to the medical examiners office and get those records, and it wouldn’t cost anything.”
Jon Mills, who is Teresa Earnhardt’s attorney, said the way the system worked before had a greater risk of harm.
“Photos I truly think are grotesque and gruesome are not going to be revealed,” 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.”
If there is cause to disclose those pictures, then the person just needs to go to the court, he said. But Julin doubts that the public, much less journalists, will spend the time or resources to request the records.