Florida restricts access to autopsy photos

By The Associated Press

03.30.01

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TALLAHASSEE, Fla. — With the widow of race car driver Dale Earnhardt at his side, Gov. Jeb Bush signed a bill yesterday to keep autopsy photos closed to the public unless a judge approves their release.

The law sprang from an outcry over the Orlando Sentinel's request to see Earnhardt's autopsy photos. Teresa Earnhardt led the protests, saying she wanted to protect her family's privacy.

The measure, passed unanimously in the Senate earlier yesterday, makes it a felony to release the records improperly, with a maximum sentence of five years in jail and a $5,000 fine.

Bush thanked the Legislature for handling the bill in what he called record speed.

"A tribute to the speed of Dale Earnhardt," the governor said.

The new law is certain to be tested in the courts because such photos had been open as part of Florida's Sunshine Law, the most liberal public-records rule in the country.

The law will not affect the Sentinel's effort to see the pictures, which was handled in mediation. A court-appointed expert has reviewed them and will issue a report that will go to the widow and the newspaper.

Earnhardt was killed in a crash on the last lap of the Daytona 500 in February. His widow won a court order to keep the autopsy photos private. A day later, the Sentinel went to court and, citing the open-records law, asked that the newspaper's medical expert be allowed to see the shots.

The newspaper said it had no intention of publishing the photos; it wanted to examine the pictures for its reporting on NASCAR safety.

Racing fans bombarded Bush, legislative leaders and the Sentinel with thousands of e-mails, letters and telephone calls, protesting media efforts to see the photos.

The Sentinel and other news organizations plan to challenge the law as unconstitutional.

"This is a sad day for Florida residents," said Ray Marcano, president of the Society of Professional Journalists and assistant managing editor for production at the Dayton (Ohio) Daily News. "Florida has taken a giant leap backward by weakening what had been the nation's best open-records law."

Marcano's group, along with the American Society of Newspaper Editors, supported the push to keep the public-records law from being changed.

"I'm just so disappointed that lawmakers would give this kind of bill special treatment when bills for education and social issues don't seem to get it," Sentinel attorney David Bralow said on the newspaper's Web site.

Thom Rumberger, attorney for the Earnhardt family, says the news media's fear is misguided.

"A reading of this bill clearly, clearly specifies that anybody who has a just cause and needs to see those records can get them," Rumberger said. "But now, you can't just walk in there and say, 'I want the records.' "

Similar legislation is awaiting the governor's signature in Georgia and is under consideration in North Carolina, South Carolina and Louisiana.

"We have said from the beginning that if one news organization is granted access to these private and painful images of my husband, others will request access, and sooner or later they would be published on the Internet and elsewhere," Mrs. Earnhardt said at the bill signing.

The president of a Web site and a student newspaper at the University of Florida are pursuing their own court cases for access to the autopsy photos.