Expanding the public records exemption for autopsy photos

By JAMES MILLER, Staff Writer

TALLAHASEE – Asked in court why she wanted to block public access to her husband’s autopsy photos after his death at the Daytona 500, Teresa Earnhardt said she wanted to protect herself and her family from harm and stress.

Five years later, when a judge sided with State Attorney John Tanner in saying the public couldn’t see crime scene and autopsy photos of victims in the 2004 Deltona multiple homicide, family members who spoke out endorsed the move.

Next time Tanner or others want to keep such photos from the public eye they might not have to ask.

Despite criticism from open-records advocates, the Legislature is set during this year’s session to renew the autopsy exemption – and possibly extend it to include crime scene photos or video recordings of the remains of victims.

It’s an idea that Tanner supports in principle – though it wasn’t prompted by the Deltona case – and that makes sense to Steve Nathan, father of Michelle Nathan, who died in the slayings.

“I think that showing pictures to the public is a waste of time,” he said this week. “It has no meaning. They’re not going to be sitting on the jury.

“I really think the families need to have some closure, and I don’t know how I’m going to get mine.”

State open-records advocates see it differently.

The first exemption – rocketed through the Legislature after the death of Dale Earnhardt Sr. in the 2001 Daytona 500 and a media push to review autopsy photos – is bad enough, said Barbara Petersen, president of the Tallahassee-based First Amendment Foundation.

A bill introduced by Sen. Jim King, R-Jacksonville and Sen. Rod Smith, D-Gainesville, to exclude crime scene photographs of victim’s remains unless a judge gives the go-ahead adds insult to injury.

“I can’t think of a reason why we would allow an exemption for crime scene photos,” Petersen said.

Both are bad public policies that could unnecessarily delay – or stop – independent examination of evidence in cases where mistakes are made or someone tries to bury the truth, she said.

Under the proposals, anyone who wants to see autopsy photographs or crime scene photographs that show victims’ remains would have to convince a court that need outweighs a presumption of family privacy.

The court would be responsible for notifying the victim’s spouse, parents or adult children of the request.

Bill sponsor King – who also sponsored the original Earnhardt legislation – said the Internet helped make the law necessary.

Among the litigants in the 2001 fray was a Web site operator who posted autopsy photos of the bodies of Rodney Orr and Neil Bonnett, killed in separate practice crashes leading up to the 1994 Daytona 500.

“Right now if you go to the Internet you can pull up the autopsy photos of John F. Kennedy, Marilyn Monroe and whatever,” King said. “There’s a definite loss of dignity when that happens.”

Both he and Smith pointed out that the bill didn’t prohibit access but only made it dependent on the courts, which King posited would be inclined to grant that access in cases where there was suspicion of error or coverup.

It’s unfortunate the Internet is being used in an argument against freedom of information, countered Miami-based attorney Tom Julin, who represented the Independent Florida Alligator newspaper in a challenge to the Earnhardt exemption.

While some photos would end up online, most media outlets don’t want to publish the pictures, he said, adding that what’s lost with the exemptions is greater than what’s gained.

Julin cited the January death of a 14-year old who had been in a state-run boot camp near Panama City.

A medical examiner ruled the death was caused by internal bleeding connected to complications from a blood disorder. Law enforcement authorities had said the boy had to be restrained, but a security videotape later released appeared to show the teenager being beaten by guards.

“The families should be championing opening these up rather than closing them,” Julin said.

Reproduced courtesy of the Daytona Beach News-Journal
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