Originally created 03/24/01

County: Earnhardt widow, newspaper accord violates Sunshine law



ORLANDO, Fla. -- An attorney for the Volusia County medical examiner asked a judge Friday to free the county from obeying parts of an agreement that limits access to the Dale Earnhardt autopsy photos.

Portions of the agreement "are illegal and void ... unless the law provides for an exemption," Volusia County Attorney Dan Eckert said in a motion. "The court's approval of a settlement agreement cannot create an exemption where one does not exist by statute."

The agreement reached last week between the Orlando Sentinel and Earnhardt's widow, Teresa, calls for an independent medical expert to look at the photos and then submit a report to the newspaper and the Earnhardt family.

Dr. Barry Myers of Duke University is scheduled to view the photos on Monday. They then would be permanently sealed as requested by Mrs. Earnhardt because of privacy concerns.

But sealing the photos violates Florida's public records law and the medical examiner's office can't legally carry it out as a custodian of the records, Eckert said.

The county attorney asked Volusia County Circuit Judge Joseph Will to handle any further requests for the photos if the county wasn't allowed to get out of the agreement.

The county wants to avoid any liability for not following Florida's well-regarded Sunshine Law that opens most records, including autopsy photos, to the public, said county spokesman Dave Byron.

Sentinel attorneys David Bralow and George Gabel said they supported the county's position.

"They're genuinely concerned about how to fulfill that duty," Bralow said. "I think they're taking steps necessary for whatever happens so they're not being accused of violating the Public Records Act."

Earnhardt attorneys said in a statement they expected the judge to enforce the settlement and that county attorneys had signed off on the deal.

The settlement "was agreed upon with the full knowledge and consent of all parties, including the Volusia County Medical Examiner's Office and the attorney from the County Attorney's Office," the statement said.

Under current law, autopsy photos are public record. However, measures moving through the state legislature would prevent the public and media from seeing autopsy photos unless they can convince a judge they have good cause. The House passed its version Thursday and the Senate is to debate its version Tuesday.

The Sentinel originally wanted its own expert to review the images for an investigation of NASCAR safety, but agreed in mediation to let the courts select an outside expert.

Newspaper attorneys then became upset upon learning that a NASCAR medical expert had looked at the photos the day before they were sealed. They later said they were satisfied with the selection of Myers, whose expertise is in the damage done to the human body in auto crashes.

The president of a Web site and an independent student newspaper at the University of Florida, the Independent Florida Alligator, are pursuing their own court cases for access to the photos. A hearing for the Alligator is set for April 5.

On Friday, WebsiteCity.com president Michael Uribe asked to see 33 images taken during the Earnhardt autopsy that followed his Feb. 18 fatal crash at the Daytona 500.