Earnhardt law reverses access to open records

From the Spring 2001 issue of The News Media & The Law, page 4.

By Catherine J. Cameron

Over the past several months, the Orlando Sentinel weathered criticism of its efforts to have an expert view the autopsy photographs of Dale Earnhardt to investigate the safety issues involved in a rash of NASCAR crash deaths over the last four years. After defending itself to members of the press and the public, the Sentinel not only won its fight for access, but provided the public with a valuable insight into NASCAR safety that may ultimately save lives.

Along the way, the Sentinel faced a concerted public relations campaign waged by NASCAR fans and officials and widow Teresa Earnhardt that incited enough controversy to gain a swift passage of a bill restricting access in an otherwise access-friendly state. And if the NASCAR fan onslaught was not enough, the newspaper had to defend itself against its usual allies — other journalists — who called its efforts disingenuous and the impetus for a legislative push to close access.

But 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 Earnhardt’s death — a belief that, in the end, turned out to be correct.

Earnhardt died at Daytona International Speedway on Feb. 18 while competing in one of NASCAR’s biggest annual events, the Daytona 500. His death occurred only one week after columnist Ed Hinton’s three-day investigative piece on NASCAR safety ran in the Orlando Sentinel.

Hinton, a writer for the Tribune Company, which owns the Sentinel, detailed how safety devices, such as the Head and Neck Support 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. The device, which stabilizes the head and shoulders, has been on the market since 1991.

“The HANS device directly addresses the kind of injury that is caused because the torso is restrained while the head moves forward,” Hubbard said. “The weight of the helmet and head stays with the body and is transmitted through his neck and into the base of the skull, and to keep the head on the shoulders, it basically pulls the bottom of the skull apart.” This violent head whipping often results in a fracture of the skull called a basilar skull fracture.

The other controversial safety measure, a soft wall to line the track, is made of a high-density foam that crushes on impact to absorb the shock of a crash.

Hinton noted in the article that some drivers have complained about reduced mobility when using the HANS system and about the delay caused by cleaning up after a crash into a soft wall. Although Earnhardt was not inclined to change his personal safety gear, Hinton’s article quoted Earnhardt as saying of the soft wall: “I’d rather they spend 20 minutes cleaning up that mess than cleaning me off the wall.”

The Court Reaction

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

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, had not determined the true cause of death. Attorneys for the newspaper had to choose between a course of action that was good for the story, and one that was good for the future of access in the state.

A few days after the autopsy, NASCAR sent Dr. Steve Bohannon, a NASCAR-paid physician who attended to Earnhardt after the crash, to view the Volusia County medical examiner’s autopsy photographs and report back to them. Teresa Earnhardt, the widow, 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 Bohannon implied at a NASCAR press conference that the basilar skull fracture occurred because Earnhardt’s seat belt broke and his chin hit the steering wheel. As proof, he cited the abrasion on the driver’s chin detailed in the medical examiner’s report. However, he did not indicate if 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 a 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 Bohannan’s press conference. With the pending Earnhardt motion before the court, the newspaper had to intervene in the lawsuit in order to assert its rights under the public records law.

“One of the problems in racing is that most pathologists or coroners don’t have much if any experience with the kinds of injuries in racing,” Hubbard said. “I think the Orlando Sentinel wanted to make sure that the autopsy interpretations were appropriate for racing and the best that could be done.”

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. Petersen also noted that in the constitution citizens “have 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 to access to public records.”

Unfortunately for the media, two high profile cases involving access to autopsy photos resulted in two state court judges restricting access to autopsy photographs by stretching the constitutional right of privacy to cover the family members of the deceased.

In the 1994 student murder trial of Danny Rolling, a judge ordered the custodians of the photographs to institute rules that would ensure that no one remove or duplicate the autopsy photos. Four years later, a judge closed access to all autopsy photos of fashion designer Gianni Versace. Petersen said although both of the orders were unconstitutional, the media never challenged them.

“They go along, go along, go along, and then they get slapped in the face for going along,” Petersen said.

Because these orders were never challenged, they remain good law in Florida and have created a lethal combination for the media.

“Nowhere in the state has there ever been any recognition of a familial right of privacy besides Judge Morris’ order in the Rolling court, which now seems to have some momentum,” said David Bralow, counsel for the Sentinel. “Courts seems to like it. They think it’s a great solution, although it is out of whole cloth.”

Bralow also concluded that the Volusia County court, which heard the newspaper’s request, favored the opinion in the Rolling case.

“The court said it felt that it should recognize the familial privacy right and it said that it had Judge Morris’s order on its machine ready to use it as a template,” he said. “Well, we thought, if we are going to lose that way, why not just get the records and not have [an adverse] ruling.”

As a result, the parties struck a deal 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,” according to Bralow. He believed that this agreement would only bind the current parties to the lawsuit and others could challenge the settlement if it interfered with their access rights. Bralow’s prediction was realized when the University of Florida student newspaper, the Independent Florida Alligator, intervened. Bralow still struggles with his client’s decision to settle with the family.

“In a perfect world, maybe we should have gone and fought it,” he said. “I wake up in the middle of the night wondering whether we should have fought it, but I do think we had a different mission and our mission was to get an expert to look at the photographs for the purpose of pursuing this story.”

The Legislative Reaction

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)

the Orlando Sentinel, The Miami Herald, Chicago Tribune, Los Angeles Times, Tampa Tribune, WFLA-TV, The Independent Florida Alligator, the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, The Florida First Amendment Foundation, Florida Society of Newspaper Editors and the American Society of Newspaper Editors all opposed the bill, arguing 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.

“Under the constitution, a public records exemption can be no broader than the stated purpose of the law and the stated purpose of the Earnhardt bill was to protect families from the unauthorized and widespread distribution of autopsy photos,” Petersen said. “They amended the bill to throw in viewing, but really the stated purpose of the law was to protect them from dissemination. This law goes way beyond that purpose.”

According to Petersen, even King acknowledged that the bill conflicted with the state constitution. However, a compromise amendment, which would have allowed inspection, but no copying unless allowed by a judge, proposed by the Florida First Amendment Foundation and Sen. Locke Burt 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.

Fans also called Hinton, Petersen, Bralow and the Sentinel to advocate the family’s position.

“We got calls and e-mails from NASCAR fans and we were inundated,” Petersen said. “The editors and lawyers for the Orlando Sentinel were actually getting threats. It’s been really wild and it is also very disturbing. Clearly the issue for us is not Dale Earnhardt. The issue is really public oversight.”

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 Teresa Earnhardt in attendance.

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 Broward County court. (Orlando Sentinel Communications v. Perper)

Both Bralow and Petersen said the flaws in the statute should be enough to strike it down. However, both also predicted the legislature would pass a revised law that avoids conflicting with the constitution.

“We have had more records exemption bills filed this session than we have ever had before. I think it’s because all of a sudden the information that has been in traditional public records in paper format is now being plastered by the government on the Internet.

Information that is not sensitive when it is buried in a 20-page document all of a sudden becomes very sensitive when put on the Internet,” Petersen said.

Additionally, at least one judge, Circuit Judge John M. Griesbaum in Brevard County, has already ordered a release of autopsy photos under the terms of the new law in order to identify an unidentified body.

An Ongoing Problem

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, a New Jersey judge found that autopsy photos were not public records under the state’s open records law. In Smith v. State, a Texas court determined autopsy photos were public records.

In the two months since the Earnhardt crash, five other states have mounted efforts to pass legislation that specifically restricts access to autopsy photographs.

Indiana, North Carolina, South Carolina, Georgia, and Louisiana have bills pending. None of these states have constitutional guarantees similar to Florida’s, making a challenge by the media more difficult.

“This really is an emotional issue,” Petersen said. “Had this been John Smith ordinary citizen who just had an accidental death and somebody made a request, do you think the governor would have gone on TV with their arm around Mrs. Smith? I’m not saying there wouldn’t have been legislation filed, but the bill would have gone through the usual process, it would have been more deliberative and we would have had better law.”

Paul Tash, editor of the St. Petersburg Times, experienced a different reaction last July when the newspaper published autopsy photographs of the arms and legs of Lisa McPherson, a woman who died while in the care of the Church of Scientology. The public had a strong interest in the case because there were questions about the church’s care taking of the sick McPherson, and the medical examiner’s office had released conflicting reports about her cause of death.

“We had virtually no complaint from readers,” Tash said. “We referred to the photos in a story in the newspaper and guided readers to the Web site if they wanted to see those photos themselves.”The difference, according to Tash, was the visible opposition launched by Teresa Earnhardt. “I think the Sentinel was caught off guard by Mrs. Earnhardt’s appearance on television and it was very hard after that initial salvo to try to state their own case.”

The End Result

On April 10, the Sentinel realized the fruits of its court fight for the access to the photos when a court-appointed crash expert released his report. The report not only vindicated the Sentinel‘s efforts, it gave the public and experts valuable tools with which to promote safety measures in the future.

After reviewing the medical examiner’s report, Dr. Barry Myers concluded that the basilar skull fracture that killed Earnhardt and caused the chin injury happened as a result of head whipping, instead of an impact with the steering column, as NASCAR physician Bohannan suggested.

The Duke University physician wrote in his report: “If Mr. Earnhardt did not hit his chin, he still could have suffered the same fatal injury in this crash.”

“What we know is that Earnhardt died two ways,” Hinton said. “Head-whipped, in and of itself, would have given him the basilar skull fracture. The chin-strike, in and of itself, would have given him the basilar skull fracture. The difference is that the chin-strike wouldn’t have happened without the head whip. The chin-strike was a result of the head whip, not a seat belt failure.”

Even though the developer of the HANS device does not think that autopsy photographs should be available to the public, he said it is important for experts to view the photographs so information about safety is given to the public.

“You can’t make intelligent decisions if you don’t have the information to make them on. So the more we know about how race cars react in crashes and how people react inside of race cars and how they are injured, the better we will be able to respond,” Hubbard said.

Although Hubbard’s point is obviously shared by many people on this emotional issue, there are many instances, such as the St. Petersburg Times story, where it is important for the public to be able to view autopsy photographs themselves to make their own conclusions, according to Tash.

“It is important to try to look at the whole question of autopsy photos and access to them and the right of inspection from beyond the context of the Earnhardt case,” Tash said. “I think its possible, based on the Lisa McPherson example, to show citizens and readers and newspapers why it might be important to be able to inspect and maybe even publish photos. When the medical examiner modified her report, the State Attorney dropped the charges in the case. We sought access to the photographs as pieces of evidence that might help readers come to their own conclusion about the nature of her death.”

At least one reporter who had been critical of the Sentinel‘s fight for the photographs has relented, saying that the Sentinel did the right thing in fighting for the autopsy photographs. Jack Arute, an ESPN reporter who called the Sentinel‘s efforts “in poor taste” and sensational, issued an apology to the Sentinel on April 16. Without “the Sentinel‘s dogged pursuit, many of us would still be speculating upon the purported failure of Earnhardt’s left lap belt,” he wrote.

Ironically, this wasn’t the Sentinel‘s first bout with NASCAR or the beginnings of its relationship with Dale Earnhardt. In 1994, the Sentinel spent four months reporting on the inadequacies of a NASCAR investigation into the death of Neil Bonnett at Daytona, indicating that the crash was caused by the failure of a shock-absorber, not by driver error as NASCAR had found. Dale Earnhardt joined ranks with the Sentinel and Bonnet’s family to pressure NASCAR to retract a finding that the death was due to driver error.