While the ruling took the media and First Amendment advocates by surprise, it isn’t unprecedented. About half of the 50 states severely restrict what can be released from autopsy reports or makes them off limits entirely. Much of the debate is over concerns whether an autopsy report is an investigative report that can be reviewed or medical records that should be kept confidential.
“There’s no doubt that courts and legislatures seem to be balancing interests differently in the Internet era,” said Frank LoMonte, the executive director of the Student Press Law Center. “Historically, it has not mattered why you want open records. It’s really dangerous to start going down the road of policing access to records based on what we fear people might do with them.”
The newspaper involved in the case asked for the autopsy report of a man shot to death by police. When the reporter got the information from another source, it contradicted what officials said in the days after the shooting, including whether the suspect ever fired a gun.
The Item of Sumter plans to appeal the ruling handed down earlier this month, but if it is allowed to stand, yet another type of work conducted with public money will remain secret from taxpayers, said Jay Bender, the attorney representing the newspaper.
“Who provides oversight in these cases where there are deaths caused by public officials?” he said. “The fact this person was killed by police shows why it is so important the facts are disclosed to the public so they can review them.”
State law does not have any requirement on what information a coroner should release in a suspicious death, meaning it would be left to the elected officials who serve four-year terms to decide what part of the medical examiner’s report should be released and what should be kept private.
In the Sumter case, the coroner argued the report should not be released because an autopsy report is a medical record. Along with details on how someone died, autopsy reports usually include the person’s medical history, a detailed profile of their vital statistics and documentation of other medical problems that could be unrelated to how someone died, especially in an accident or an act of violence.
“The public certainly wants to know what’s going on when someone dies unexpectedly and we want to release that to them. But there’s a lot in those reports that aren’t related to that incident,” said Richland County Coroner Gary Watts, who wasn’t involved in the case that led to the lawsuit.
Watts said he has never released a full autopsy report and is glad the judge’s ruling backed him up.
About 15 states across the U.S. allow the public release of an autopsy report. About a half-dozen other states allow the release of reports not being used as part of a criminal investigation, according to the Reporters Committee for Freedom of the Press.
The death of NASCAR driver Dale Earnhardt during a race in 2001 led some states, including Florida, to restrict access to autopsy report. Florida lawmakers quickly amended laws to make sure the state’s broad Freedom of Information Act didn’t include pictures from Earnhardt’s autopsy and a number of states followed, some restricting the release of the written reports, too.
First Amendment advocates say that fear of websites publishing something without discretion has caused a tightening of open records laws across the county both by lawmakers and judges.
“One of the lurking issues in this debate is always the fear that someone is going to start autopsyphotos.com and make entertainment out of gruesome photos,” LoMonte said. “The one rogue user shouldn’t keep these records from everyone.”
Bender said the argument that autopsy reports are medical records makes no sense because the “patient” didn’t seek out the doctor for treatment.
Anyone arguing against the release of autopsy reports should consider the most notorious killing to take place on American soil, said Kenneth Bunting, executive director of the National Freedom of Information Coalition.
“It’s hard to argue there is never a time to release an autopsy report, certainly in criminal cases,” Bunting said. “Just think about how important the autopsy information was in the Kennedy assassination and how questions still linger today because how it was handled.”