Making autopsies secret endangers public safety

August 29, 2012 

AFTER THE controversy over a Florida newspaper’s efforts to see photographs from the autopsy of race car driver Dale Earnhardt, South Carolina joined the national rush to pass laws making such pictures private.

Two things about that action are relevant a decade later, in light of a state judge’s ruling that the autopsies themselves are “medical records,” and thus exempt from open-records laws.

First, the fact that the Legislature felt compelled to pass a law making pictures private means that lawmakers considered autopsies to be public records, required to be released under the state’s Freedom of Information Act.

Second, the Legislature intended for everything about autopsies except for photographs to remain public. This is not just logically intuitive. The bill as originally introduced exempted from public disclosure “All documents and records including, but not limited to photographs, of and incidental to the performance of an autopsy.” But the Legislature wisely narrowed the exemption to photos and added provisions to make it clear that police could see the pictures, as could a host of other people, including next of kin, criminal defendants and people bringing lawsuits.

We were never comfortable with that law. While we shared legislators’ revulsion at the idea of grisly pictures of dead bodies splashed across the front page, we also understood the wisdom of the cliche about pictures being worth a thousand words. What if someone dies in police custody and the coroner rules the death accidental? Shouldn’t someone be able to see if pictures pointed to a different cause? What about when a child dies in day care? Shouldn’t there be some circumstances under which someone could review the coroner’s ruling that the child died of natural causes?

Now multiply the danger by 10, and you get the impact of Circuit Judge Clifton Newman’s ruling that everything to do with an autopsy is private, thereby putting coroners beyond question. Because this is judicially written law, it doesn’t even have the safeguards we have for pictures. In fact, we can envision a coroner arguing that the new law trumps those safeguards.

The case that gave rise to Judge Newman’s ruling involved a man shot to death by police. Police said the man shot at officers, but The Item of Sumter reported that he had been shot twice in the back and twice in the head. That’s the sort of discrepancy that an autopsy should clear up.

As a basis for his ruling, Judge Newman cited a 1984 case in which a judge had declared autopsies to be medical records, and he said he must assume the Legislature was aware of that ruling and chose not to overturn it. The judge could be right about statutory construction. But he’s absolutely wrong about the General Assembly, which passed the picture exemption precisely because it was certain that autopsies were public records.

The Legislature rejected the attempt to make autopsy reports off-limits because it understood that they need to be public. The reason the government spends tax money to preform autopsies is inherently public: to determine whether there was wrongdoing. In effect, autopsies are police reports. It’s true that some aspects of police reports can be made private, for a limited time, while an investigation is pending. Ultimately, though, they too are public, because what our police do must be subject to the very highest level of scrutiny.

Whoever is right about the law, there’s a quick and simple fix for this: The Legislature needs to pass a law that makes it clear that autopsies are public records. Otherwise, it’s only a question of when the judicially created exemption will create a situation that allows wrongdoing to go unpunished.

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