By Elaine Hargrove-Simon
A year after his death in the Daytona 500, the battle over the access to Dale Earnhardt's autopsy photos continues. (See Summer 2001 Silha Bulletin, "New Florida Law Closes Door on Autopsy Photos.") In a story dated January 10, the Associated Press reported that the newly enacted Florida law is hurting medical examiners and could hinder criminal investigations. As currently written, the law makes it a felony punishable by five years in prison and a $5,000 fine to view or copy autopsy photos without a court order. The law is being challenged by the Orlando Sentinel, the Gainesville Sun, the Ledger, the Sarasota Herald-Tribune, four newspapers owned by The New York Times Co., and the Tampa Tribune, together with its affiliate, WFLA-TV. A separate but related lawsuit is being fought by the University of Florida Alligator. The case has been set for arguments March 5 before Broward Circuit Judge Leroy Moe.
Following the precedent set by the restrictions imposed upon access to autopsy photos in Florida, other autopsy photos and records are being sealed around the country.
Golden, Colorado: Colorado District Court Judge R. Brooke Jackson ruled on January 2, 2002, that the autopsy records of Dylan Klebold, one of two student gunmen at Columbine High School, will remain closed at the request of his parents. The Rocky Mountain News had asked to review the autopsy records hoping that they might shed light on whether Klebold had killed himself. Although autopsy reports are not exempt under the Colorado Open Records Law, a trial court may find that they can be withheld if disclosure would cause "substantial injury to the public interest." In his ruling, Jackson said that publication of details of Klebold's autopsy would offend a significant portion of people living in the Denver area. According to an article in the January 4, 2002 Denver Post, the Jefferson County Sheriff's office concluded that Klebold and Eric Harris, the other student gunman at Columbine, had committed a double suicide. However, Harris' parents did not object to the release of their son's autopsy report.
Covington, Georgia: Jana Crowe, whose son Jimmy was found dead in a hotel room in 1998, the victim of drugs, learned nine months later that his autopsy photos were part of a student's science project and subsequently displayed at her high school's science fair. Although the student had taped over Jimmy Crowe's face in the photographs, many of his friends were able to recognize him. It turned out that a police officer assigned to investigate Crowe's death had given the photos to his daughter, whose science project involved forensic science. Jana Crowe sued the officer. Superior Court Judge Sidney Nation noted that the officer's actions were "immoral but not illegal," according to an article that appeared October 11, 2001 in the Atlanta Journal and Constitution.
Crowe was surprised to learn that Georgia law allows autopsy photos to be disclosed to the public, with few exceptions, and that the surviving family members are not notified prior to release. Crowe contacted state lawmakers, hoping to find someone to sponsor a bill that will require anyone seeking autopsy photos to obtain permission from family members of the deceased before the photos are released. Crowe argues that autopsy photos and records ought to be given the kind of protection afforded to medical records, but concedes that such records should be available to journalists and investigators.
Milwaukee, Wisconsin: Legislators in Wisconsin, apparently reacting to the Florida law, have proposed a similar bill which would restrict access to autopsy reports, including photos. The bill, AB 621, was introduced November 26, 2001 and would prohibit the release of any autopsy record without permission from the deceased's next of kin. Autopsy reports and photographs are currently public in that state.
In a story published November 18, 2001 in the Milwaukee Journal Sentinel, Jeff Hovind, publisher of the Waukesha Freeman and council chairman of the Wisconsin Freedom of Information Council, said that the organization will oppose any effort to restrict access to such records. Hovind was quoted as saying that, in his 24 years of working in the media, he has never known of a newspaper or television news operation that has published autopsy photos. "I think the Legislature is trying to cure an evil that doesn't exist," Hovind said.