The law inspired by the Earnhardt case is certain to get a court test.
By LUCY MORGAN
© St. Petersburg Times, published March 30, 2001
TALLAHASSEE -- As the widow of race car driver Dale Earnhardt looked on, Gov. Jeb Bush signed a law Thursday that will block public access to autopsy photos without court approval.
Bush praised legislators for establishing a balance between the state's long tradition of making records public and a family's right to privacy. But First Amendment activists began laying the groundwork to fight the law in court.
The bill went from idea to law in less than three weeks. Bush and legislative leaders rushed the bill through a process that traditionally takes months or years after receiving thousands of calls, letters and e-mails from NASCAR fans who objected to an Orlando Sentinel request for access to the Earnhardt autopsy photos.
The newspaper's editors said they did not intend to publish the photos, but Teresa Earnhardt said she feared Internet publishers or others would get the photos and distribute them.
"Even now there are others, including a college newspaper and a Web site, attempting to get their hands on Dale's autopsy photos," Mrs. Earnhardt said. "Our family has suffered unimaginably since Feb. 18, and even more so, as a result of this violation of our right to privacy."
Mrs. Earnhardt said she was grateful for the bill, which is designed to block access to her husband's autopsy photos and other autopsy photos, videos or audio recordings.
Legislators intend for the bill to apply retroactively to other autopsy photos, but agreed that no one could be prosecuted for a prior release of the photos. The law makes it a felony punishable by up to five years in prison and a fine of $5,000 to release such photos.
"We live in a time where information can be transmitted around the world instantly, but often without respect or a full understanding of the consequences," Mrs. Earnhardt said.
Bush and legislators gathered to pose for pictures with Mrs. Earnhardt in the Capitol just hours after the Senate voted 40-0 to pass the bill, sending it to the governor just days after it passed the House. It is only the second bill to be passed by both houses since the session began March 6.
Similar legislation awaits the governor's signature in Georgia, is under consideration in South Carolina and was introduced this week in Louisiana.
Senate Majority Leader Jim King, one of the sponsors of the bill, predicted there will be court challenges of its constitutionality. His legislative district includes the Daytona International Speedway where Earnhardt died Feb. 18 when his car crashed into a wall.
Anticipating the governor's action, the Orlando Sentinel on Wednesday made formal requests to inspect photos, videos or audio recordings from autopsies performed last year in four Florida counties, including Hillsborough.
"We're just trying to determine what are the best steps we can take to challenge the constitutionality of the statute," said David Bralow, attorney for the Sentinel. "To do that, we realized we needed to have some public records requests out there to preserve our rights."
The other counties solicited Wednesday are Palm Beach and Broward in South Florida and Bradford in north-central Florida. Bradford is the home of the Florida State Prison in Starke, where several guards were accused of beating a death row inmate to death.
The Sentinel's identical requests, given to the medical examiner's offices serving each county, request three groupings of photographs from potentially suspicious deaths. Each is narrowly tailored, appearing to lay the groundwork for legal challenges.
Requested are photos and recordings from autopsies for people who died in car crashes or in police or correctional custody. The newspaper also wants to look at photos of people who were only identified as Jane or John Doe.
"This bill violates so many of our constitutional rights," Bralow said. "This bill won't stand constitutional scrutiny, and the Earnhardts won't ultimately be protected."
Paul C. Tash, editor of the St. Petersburg Times, questioned the Legislature's rush to get a law passed, saying decisions that are rushed are generally ones that have problems.
"I'm sympathetic to Mrs. Earnhardt, but there is a much larger question and principle at stake," Tash said. "I believe the Legislature has reached well past a problem and its attempted solution and has eroded an important tradition in Florida."
Tash said he thinks the unintended consequences of the law will become apparent as time passes. He also predicted the law will face legal challenges.
Bralow and Tash criticized legislators for their unwillingness to consider a compromise that would have allowed access to autopsy photos without a right to copy them unless a court approved.
On the Senate floor, King said the bill was "one of the most heart-wrenching and heartfelt pieces of legislation I have been involved in."
King said most of the people he heard from during the past few weeks were unaware that autopsy photos of their loved ones could be a matter of public record.
"We think it is altogether fitting and proper that this state . . . take great steps to ensure that the privacy of the family is protected," King said.
The issue of whether a public records law can be made retroactive, thus blocking access to records created before the law was passed, is before the Florida Supreme Court.
Two of the state's district courts have issued conflicting rulings on the subject and have asked the state's highest court to determine whether a government agency can withhold records that would have once been public.
The law could affect missing children's organizations that frequently use autopsy photographs to identify bodies.
Ivana DiNova, director of the Tampa Branch of the Missing Children's Help Center, said Thursday that their organization has identified six bodies since 1982 by using such photos.
Under the law, anyone seeking access to the photos would have to seek permission from the person's family and go before a judge to establish "a showing of good cause" to gain access.
The court would determine whether the disclosure is necessary "for the public evaluation of government performance" and balance it against a family's right of privacy.
- Times staff writers Diane Rado and Bill Varian contributed to this report.