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Volume 1, Issue 2

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autopsy photos, under Florida’s open public records law (FS 119), Mrs. Earnhardt immediately sought protective relief from the courts. This would be a major change in the interpretation of the open records law. On specific prior occasions, Florida courts had established rules to prevent release and sensationalism of autopsy photos, but no specific legislation had been requested, and no constitutional challenges resulted.

However, within six weeks of Mr. Earnhardt’s death, through the intense efforts of Mrs. Earnhardt, the Florida Legislature passed what became known as the “Dale Earnhardt Bill”; Governor Jeb Bush signed the bill into law on March 20, 2001. The bill amended Chapter 406 (Medical Examiners) by adding section 406.135, F.S. entitled “Autopsies, confidentiality of photographs and video and audio recordings; exemption”. This change specifically precludes any person, physician, medical

examiner, or pathologist who is in lawful custody of autopsy photographs or other visual or audio recordings from using or releasing them. The law further stipulates release is permitted only by a court order, and willful and knowing violations will result in third degree felony charges.  Subsection 4 is particularly chilling; it stated: “…This exemption shall be given retroactive application.” This sentence means that no illustration past, present, or future photograph, video, or audio report can be shown without court order or written family permission.

In Florida, prior to the Earnhardt bill’s passage, the elements of medical examiner autopsies were considered public records under Florida’s Sunshine Law. Today, 34 states have defined through statutory law or case law that autopsy records in general are not subject to public disclosure. Fifteen other states have closed autopsy records or parts of those records under certain circumstances. Also, six states, Ohio, New Hampshire,

Alaska, Connecticut, New York, and Massachusetts already 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.

The stringent legal limitation of this law has resulted in near total cessation of formal forensic teaching and academic publication of forensic autopsy cases in the state of Florida. Multiple court challenges to the law’s constitutionality by newspapers have failed, and the United States Supreme Court ultimately refused to review the lower court decisions.

Nearly all teaching in clinical medicine, including forensic pathology, involves the case

method, much like teaching law. Vivid photographs of actual spousal or child abuse, and other violence have far greater impact on learning than any computer generated or hand-drawn illustration, especially when teaching medical students, residents, and paramedical and law enforcement professionals. So, the law impacts not just forensic medicine, but all specialized training of medical, nursing, paramedical, and law enforcement personnel who must be educated for prevention.

Immediately following enactment of the Earnhardt law, the need for modifications became transparent. The College of American Pathologists has proposed changes to help break the legislative stalemate and to allow for bona fide teaching, research, publication, and public health education. They would preserve the legislative intent while eliminating some of the practical problems that have arisen in the law’s implementation. We hope to see significant changes in the coming legislative sessions.

Dr. Samantha Butler, an undergraduate alumna from the University of Florida, returns to her alma mater to begin her

finished high school. Samantha’s initial interest in pathology was kindled during her first year gross anatomy course and