The Earnhardt Family Protection Act’s Impact on Confidentiality

September 21, 2021 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

In 2001, Florida passed the Earnhardt Family Protection Act which made the photos, video, and audio recordings taken during autopsy exams confidential. The bill stemmed from a tragic accident when NASCAR driver Dale Earnhardt died from injuries he sustained from a crash during the Daytona 500 on February 18, 2001.

The Tumultuous Story

Earnhardt’s family was not only left with a tragedy to heal from, but also a legal battle concerning autopsy photos. News organizations sued to see the photos, many of whom wanted to see whether the rumors that a faulty safety belt played a role in his death were true, especially since he was the fourth NASCAR driver to die in less than a year from a racing crash. The Orlando Sentinel requested the photos to reveal the “real” cause of death under Florida’s open records act, but Teresa Earnhardt, Dale’s wife, voiced her concerns publicly, expressing that her husband’s autopsy photos should remain private. She then sued Volusia County on February 22, 2001, to stop the release of the autopsy photos by the medical examiner. The trial court ruled in her favor and soon after, the state legislature passed the Earnhardt Family Protection Act, which exempts a photograph or video, or audio recording of an autopsy from Florida’s public records law.

Statutory Guidelines

The Act is codified in Section 406.135 of the Florida Statutes and states:

 A photograph or video or audio recording of an autopsy held by a medical examiner is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that a surviving spouse may view and copy a photograph or video recording or listen to or copy an audio recording of the deceased spouse’s autopsy. If there is no surviving spouse, then the surviving parents shall have access to such records. If there is no surviving spouse or parent, then an adult child shall have access to such records.

Furthermore, the photograph, video, or audio recording of an autopsy may only be revealed if the court determines there is good cause. If they make such a determination, then they may issue an order authorizing any person to view or copy a photograph or video recording of an autopsy or listen to or copy an audio recording. The court may also prescribe any restrictions or stipulations that the court deems appropriate. To determine good cause, the court must consider whether:

1. Disclosure is necessary for the public evaluation of governmental performance.
2. The severity of the intrusion into the family’s right of privacy is the least severe means available; and
3. The availability of similar information in other public records, regardless of form.

Arguments Against the Bill

The bill garnished significant opposition, with Florida’s First Amendment Foundation, who push for “greater public oversight of the government through the state’s open records and open meetings laws” urged the Governor to veto it. They argued that requiring “citizens and the media to pay court costs and legal fees in order to copy or even view the records…greatly restricts public oversight of the actions of government employees.” Furthermore, general counsel for the organization, John Kaney, argued that the bill was far too broad. He stated, “you can only gain access with a court order based on what the statute says is good cause, and it’s clear from the ruling in the Earnhardt case that the public’s right to know is not good cause . . . anyway you would frame the news gathering interest would be rejected.” The Florida appellate court ruled the law was not too broad, but specific and limited, and that the “statute provided clear and specific criteria for a court to consider a good cause appeal.”

Pertinent 2022 Case

 On January 9, 2021, Bob Saget, actor, stand-up comedian, and television host, tragically passed away in Orlando, Florida while he was on tour for his stand-up show. On February 15th, Kelly Rizzo, Saget’s widow, and their three daughters filed suit against Orange County Sheriff’s Office and the Orange County Medical Examiner’s Office, demanding that the photographs and papers pertaining to Saget’s death remain confidential due to their graphic nature. They argued that the release of such records to the public would cause them to suffer irreparable harm. The lawsuit was filed in response to media outlets filing public records requests for specific documents relating to the investigation including records created by the Defendants comprised of “photographs, video recordings, audio recordings, statutorily protected autopsy information, and all other statutorily protected information.” Ninth Circuit Judge Vincent Chiu ultimately ruled that the records related to Saget’s death will remain confidential, as “the plaintiffs have a clear legal right or interest in the Protected Records as the surviving spouse and children of Mr. Saget.” The Earnhardt Family Protection Act is to thank for allowing these records to remain confidential in the face of court challenges.

Written by Sarah Kamide

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