H. Florida Law Limits Autopsy Photo Access Following NASCAR Death

     Distraught family, friends, and fans of NASCAR driver Dale Earnhardt waged a ferocious public relations campaign in 2001 resulting in a law that limits access to public information in Florida.  The legislation restricting access to autopsy information was quickly duplicated by several states.

     Mr. Earnhardt died at Daytona International Speedway in February 2001 while competing in the Daytona 500.  His death occurred only one week after the publication of Orlando Sentinel columnist Ed Hinton’s three-day investigative piece on NASCAR safety.  Mr. Hinton described how safety devices, such as the head and neck support (HANS) restraint system, and soft-wall technology, could have prevented at least 12 of the 15 racing deaths worldwide since 1991.

     Robert Hubbard, a Michigan State University engineering professor, developed HANS more than a decade ago to protect drivers from the severe “head whip” that occurs during an accident.  This violent head whipping often results in a basilar skull fracture.  The device, which stabilizes the head and shoulders, has been on the market since 1991 but was not required by NASCAR.  Many drivers, including Mr. Earnhardt, refused to use it.

     After Mr. Earnhardt's black No. 3 Chevrolet rammed into the concrete wall at Daytona, Mr. Hinton’s article became eerily foreshadowing -- particularly when a Feb. 19 autopsy indicated that Mr. Earnhardt died of a basilar skull fracture.  NASCAR immediately investigated the crash.

     At the time, autopsy photographs from investigated deaths were public records in Florida.  The Sentinel wanted to hire an expert in racing injuries to view the autopsy photographs in case the county coroner, who was not an expert in basilar skull fractures, failed to determine the true cause of death.

     A few days after the autopsy, NASCAR sent Dr. Steve Bohannon, a NASCAR-paid physician who attended to Mr. Earnhardt after the crash, to view the Volusia County medical examiner’s autopsy photographs and report back.  Widow Teresa Earnhardt filed a motion the next day in a Volusia County court to prevent the medical examiner from allowing anyone else to view the autopsy pictures.

     Four days after the crash, Dr. Bohannon implied at a NASCAR press conference that the basilar skull fracture occurred because Mr. Earnhardt’s seat belt broke and his chin hit the steering wheel.  As proof, Dr. Bohannon cited the abrasion on the driver’s chin detailed in the medical examiner’s report.  However, he did not indicate if Mr. Earnhardt’s body had bruising in places that might indicate that the seat belt held during the impact.

     If these bruises were visible on the body, they could indicate that the basilar skull fracture was not due to a failed seat belt but instead was due to head whip.  To be able to make this determination, the Sentinel made a public records request to inspect the autopsy photographs the same day as Dr. Bohannon’s press conference.  With the pending Earnhardt motion before the court, however, the newspaper had to intervene in the lawsuit to assert its rights under the public records law.

     The Sentinel remained steadfast in its belief that an expert review of the photographs was necessary to inform the public of the true cause of Mr. Earnhardt’s death -- a belief that, in the end, turned out to be correct.  Mr. Earnhardt had, in fact, suffered a head whip injury.

     The Florida Constitution uniquely guarantees citizens access to records of all three branches of government, according to Barbara Petersen, executive director of the First Amendment Foundation in Tallahassee, Fla.  Ms. Petersen also noted that the state constitution gives citizens “a right to be free from governmental intrusion into our private lives, but it specifically says that the privacy right is secondary to the right of access to public records.”

     While the Sentinel litigated for access, state Sen. Jim King, whose district includes the speedway, sponsored a bill to prohibit public inspection of autopsy photographs (H.B. 1083).  Numerous news organizations opposed the bill, arguing that it would cripple the news media’s ability to determine a true cause of death in cases of public importance and because it violated the mandates of the Florida Constitution.

      According to Ms. Petersen, even Sen. King acknowledged that the bill conflicted with the state constitution.  A compromise amendment, which would have allowed inspection but no copying without a judge’s permission, was proposed by the Florida First Amendment Foundation and Sen. Locke Burt but never reached the floor.

     Teresa Earnhardt made an impassioned televised plea of support to close access to the photos.  A flood of phone calls from fans to legislators followed, possibly contributing to the quick passage of the bill.  All 40 state senators voted in favor of the bill, just 21 days after its introduction in the House.  Gov. Jeb Bush signed the bill less than six hours later with Mrs. Earnhardt in attendance.

     In the meantime, the Sentinel struck a deal with the Earnhardt family that the photographs would be sealed after a court-appointed medical expert viewed them.  The Sentinel would then be allowed to ask the expert questions about “the cause of death and whether the cause of death was the result of head-whipped or impact-oriented basilar skull fracture.”

     In a separate legal action, the Orlando Sentinel and its sister paper, the South Florida Sun-Sentinel, have challenged the constitutionality of the law in a circuit court in Broward County.  Orlando Sentinel Communications v. Perper, No. CACE 01-5825-08 (Fla. Cir. Ct. 2001).

     Prior to the Earnhardt controversy, six states -- Ohio, New Hampshire, Alaska, Connecticut, New York, and Massachusetts -- had determined either through statutory law or case law that autopsy records in general are closed.  Fifteen states have closed these records or parts of these records in some circumstances, such as when the autopsy was requested by the family and not the state.  Additionally, in California the code of civil procedure denies public access to autopsy reports.  Autopsy records in the remaining states are generally open.  See “Tapping officials’ secrets,” www.rcfp.org.

     Although no state statutes specifically mention access to autopsy photos, two states in addition to Florida had addressed the openness of photos in case law.  In Shuttleworth v. Custodian of Records for the Police Department of the City of Camden, 610 A.2d 202 (N.J. Super. Ct. App. Div. 1992), a New Jersey judge found that autopsy photos were not public records under the state’s open records law.  In Smith v. State, 1996 WL 112153 (Tex. Ct. App. 1996), a Texas court determined that autopsy photos were public records.

     In the months since the Earnhardt crash, at least five other states have mounted efforts to pass legislation that specifically restricts access to autopsy photographs.  Indiana, North Carolina, South Carolina, Georgia, and Louisiana introduced bills.  None of the bills passed in 2001 and none of these states has a constitutional guarantee similar to Florida’s, making a challenge by the media more difficult.

-- Lucy Dalglish and Catherine Cameron