Cindi Ross Scoppe

Dead men don’t tell tales, and in SC, neither do their blood tests

WHEN A CORONER announced earlier this year that a USC Upstate student was drunk when he crashed and killed himself and three fellow student athletes, it felt like a little bit of sanity had been restored to our state’s public records law. After all, Spartanburg County Coroner Rusty Clevenger received an opinion from the attorney general blessing his release of the information.

Editorial: Secret autopsies endanger public safety

But a closer look at that opinion reveals the law is just as crazy as it has been since the state Supreme Court ruled in 2014 that an autopsy is a “medical record” and therefore cannot be released to the public. Pause. Think about that for a moment.

In fact, things might be even more nonsensical than most of us had imagined: The opinion concludes that the court probably considers not just autopsies but even toxicology reports on dead people to be medical records.

An attorney general’s opinion isn’t supposed to argue one side or the other. It’s supposed to predict how our Supreme Court would rule, and to read this one is to be slapped in the face, over and over, by just how absurd the court made the Freedom of Information Act. And then it is to be punched in the gut by the Legislature’s refusal to overturn the court’s strained interpretation of the law — even though the court practically begged lawmakers to do that.

The attorney general’s opinion predicts that the court wouldn’t even let a coroner release a toxicology report he orders on a dead person, but it concludes that he could tell people the report showed the deceased was drunk. That’s troubling, because it invites a coroner to lie, since no one can check behind him.

It also raises this worrisome question: If a blood-alcohol test on a dead driver is a medical record, then how can a blood-alcohol test on a living driver not be one too?

Maybe you don’t mind if you never get to see the results of a DUI test. After all, a court declaration that blood-alcohol tests are private medical records probably wouldn’t affect DUI cases, since judges can give prosecutors and defense attorneys access to all sorts of private records.

So here’s where we need to remind ourselves of how we got to this point, because even if we don’t end up with a court order that transforms DUI tests into private medical records, the court-written law is still dangerous.

Read the attorney general’s opinion

The decision involved a 2012 case in which Sumter police said they killed a man who shot first at them. The coroner refused to release the autopsy, but SLED gave a copy to The Item of Sumter, which reported that the man was shot twice in the back and twice in the head and had no gunshot residue on his hands. That obviously raises questions about whether the shooting was justified — questions that would not have been raised had the autopsy remained secret.

The ruling didn’t simply say that officials don’t have to release autopsies; it said it was illegal to do so. So if there’s no video, when police claim self-defense for a shooting and the coroner doesn’t challenge them, we’ll never know whether it really was justified. Fortunately, police and coroners are usually truthful; but they aren’t always, and even honest people can make bad judgment calls.

The SC Supreme Court and the Freedom of Information Act

Those bad judgment calls aren’t confined to police shootings. A coroner can reach an incorrect conclusion in any sort of death — a child who suddenly stopped breathing, for instance, or a healthy adult who died alone at home. It just makes sense for someone to be able to look over the coroner’s shoulder, as the public can do in about half the states.

The reason the public can see autopsy reports in other states is that there is nothing inherently “private” about them. It’s up to legislatures to decide whether autopsies are private. In its 2014 decision, our Supreme Court said that since the Legislature had not written a definition of “medical records” into state privacy laws, it had to come up with a definition itself, and the one it came up with covered autopsies.

I think that definition is divorced from reality, but when a court has to write definitions and gets them wrong, the fault is not primarily with the court; it’s with the Legislature. Lawmakers should have written their own definition before that order. A year and a half after the order, it has become not just negligent but derelict in not doing so.

Early last year, the Senate quickly passed S.10, a bill by Judiciary Chairman Larry Martin to make all but a few truly private details in autopsies public. For the 14 months since then, the House has ignored that bill. With the specter of that toxicology-report exemption in mind, it might be worth making the bill a little broader.

But broadened or not, the House needs to pass that bill, to replace the court-written law we have lived under for going on two years now.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.

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