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    High court ruling buoys opponents of Earnhardt law

    Open records advocates say the ruling bodes well for challenges to the recent closure of autopsy photos.

    By LUCY MORGAN

    © St. Petersburg Times, published April 28, 2001


    TALLAHASSEE -- The Florida Supreme Court has reaffirmed the right of Floridians to have access to public records in a case where a hospital tried to claim an exemption was retroactive.

    The ruling, issued Thursday in a lawsuit brought by the Daytona Beach News-Journal against a DeLand hospital leased to a private corporation, offers hope to First Amendment lawyers who plan to challenge a law passed earlier this year to exempt autopsy records from the public records law.

    The autopsy exemption bill was slammed through the Legislature this month at the request of NASCAR racing driver Dale Earnhardt's family after the Orlando Sentinel sought access to the autopsy photos.

    In this week's opinion, a unanimous court determined that the right of access to records is "a substantive right" that can't easily be abrogated.

    The decision involved a 1998 law passed after the News-Journal sued the hospital over a records request. The News-Journal won the lawsuit, but the hospital refused to produce the records, claiming that the exemption approved by legislators in 1998 was retroactive.

    The court disagreed, saying a clear legislative intent to make the exemption retroactive was missing from the law.

    The court stopped short of answering the constitutional questions surrounding a retroactive application of the exemption.

    But experts say declaring the right of access as a substantive constitutional right will help others who challenge the retroactive application of exemptions.

    Robert Rivas, a Tallahassee lawyer who represented the St. Petersburg Times, the First Amendment Foundation and others who filed friend-of-the-court briefs, said he thinks the court has opened a door for other challenges based on the constitutional right.

    "It bodes well for us," Rivas said. "It means dozens of laws are begging for a constitutional challenge."

    In addition to invalidating the hospital's claim for a retroactive exemption, the court ordered the hospital to pay the legal fees incurred by the newspaper, estimated to be about $100,000.

    Jonathan D. Kaney Jr., the Daytona Beach lawyer who represented the newspaper, said the court ruling will enhance attempts to challenge the Earnhardt law.

    Barbara Petersen, executive director of the First Amendment Foundation, predicted the decision will be used to overturn the Earnhardt law.

    Senate Majority Leader Jim King, sponsor of the Earnhardt bill, said he wasn't surprised by the decision and always has been certain the bill would be challenged.

    "All the Legislature can do is what it thinks is right for the people and let the court decide what is legal," King said.

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    From the Times state desk