Appendix — Campus Communications, Inc. v. Earnhardt

Supreme Court, U.S.

FILED

a nee OCT 3 1 2003

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

¢

CAMPUS COMMUNICATIONS, INC.,

Petitioner,

v.

TERESA EARNHARDT, THE ESTATE OF

DALE EARNHARDT, DALE EARNHARDT, JR.,

TAYLOR EARNHARDT, DALE EARNHARDT,

INCORPORATED, COUNTY OF VOLUSIA, OFFICE

OF THE MEDICAL EXAMINER, THE STATE OF

FLORIDA, AND MICHAEL URiZ5E,

Respondents.

¢

On Petition For A Writ Of Certiorari To The

District Court Of Appeal Of Florida, Fifth District

¢

APPENDIX TO RESPONSE TO PETITION FORA

WRIT OF CERTIORARI OF TERESA EARNHARDT,

THE ESTATE OF DALE EARNHARDT, DALE

EARNHARDT, JR., TAYLOR EARNHARDT AND.

DALE EARNHARDT, INCORPORATED

°

DICKSON M. LUPO PARKER D. THOMSON*

JUDSON GRAVES CAROL A. LICKO

ALSTON & BIRD LLP STEPHANIE L. CARMAN

101 South Tryon Street, HOGAN & HARTSON LLP

Suite 4000 1111 Brickell Avenue,

Charlotte, North Carolina 19th Floor

28280-4000 Miami, Florida 33131

Telephone: (704) 444-1000 Telephone: (305) 459-6500

E. THOM RUMBERGER JON L. MILLS

ERNEST H. EUBANKS, JR. TIMOTHY MCLENDON 7

RUMBERGER KIRK & P.O. Box 2099

CALDWELL, P.A. Gainesville, Florida 32602-2099

201 South Orange Avenue, Telephone: (352) 392-2237

Suite 300

Orlando, Florida 32801 Counsel for Teresa Earnhardt,

The Estate of Dale Earnhardt,

*Counsel of Record Taylor Earnhardt, and

Dale Earnhardt, Incorporated

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

R. App. 1

IN THE

DISTRICT COURT OF APPEAL OF FLORIDA

FIFTH DISTRICT

Case No. 5D01-2419

CAMPUS COMMUNICATIONS, INC.,

a Florida corporation, Appellant/Cross-Appellees,

vs.

TERESA EARNHARDT and THE ESTATE

OF DALE EARNHARDT, Appellees/Cross-Appellants,

and DALE EARNHARDT, JR., TAYLOR EARNHARDT,

EARNHARDT, INCORPORATED, COU TY

OF VOLUSIA, OFFICE OF THE MEDICAL

EXAMINER, THE STATE OF FLORIDA, and

MICHAEL URIBE, Appellees.

On Appeal from the Circuit Court of the Seventh Judicial

Circuit in and for Volusia County, Florida

Initial Brief of Campus Communications, Inc.

Thomas R. Julin & D. Patricia Wallace

Florida Bar Nos. 325376 & 0185930

Hunton & Williams

Attorneys for Campus

Communications, Inc., publisher of

The Independent Florida Alligator

Barclays Financial Center

1111 Brickell Avenue, Suite 2500

Miami, Florida 33131

305.810.2516 Fax 2460

tjulin or pwallace@hunton.com

R. App. 2

TABLE OF CONTENTS

TABLE OF CEEA TS evvsevveccnsavevsynevesersnnpersswennnenens ii

ET ae REE stihisceicisdcemabiaaieniammnaeainiuiie 1

STATEMENT OF THE CASE AND THE FACTS...... 1

SUMMARY OF ARGUMENT .................cceseceeeeseeeeees 18

BERTIE sinshsnnsrnrnpiaidnabinanieamaiaenailm ene: 19

I. Chapter 2001-1 is Unconstitutional............... 19

A. Chapter 2001-1 May Not be Applied Ret-

SOI i aiecivneertiieaa en 19

B. The Legislature Violated Article I, Sec-

tion 24 of the Florida Constitution by

Enacting Chapter 2001-1..................... 27

II. Campus Communications Should Have Been

Granted Access Under Chapter 2001-1.......... 35

III. Judgment Should Have Been Entered

Against the Earnhardts’ Disclosural Privacy

RNIN x:siacinnsinconpnicninanedionssinéaaabeaianaiamiadduiidiakeasarads 41

A. The State Constitutional Privacy Right Does

Not Limit the Public Records Law .............. 42

B. There is No Federal Constitutional Pri-

vacy Right that Limits the Public Re-

OD FI an cscinsnaksiirdidceadimeainans Pree 44

CEN FIDE viv ttanicksechedonbindiatansdaaaneiosaminnss voles 50

CERTIFICATE OF SERVICE. ...................c cc ceseeeeeeees Vili

R. App. 3

TABLE OF AUTHORITIES

Cases

Alamo Rent-a-Car, Inc. v. Mancusi, 632 So. 2d 1352

IT lide cha dacn dsc nnesgncecuunassentsbainnsounebnesecbieeeatenes

Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000) ................

Anderson v. Cryovac, 805 F.2d 1, 9 (1st Cir. 1986)...........

Armstrong v. H&C Communications, Inc., 575

So. 2d 280 (Fla. 5th DCA 1991) ..................ccccccsssssscsocees

Arnold v. Shawano County, 317 N.W.2d 161 (Wis.

dai cetcahncsichebineninenbnitoninnisnes sasuiih etiiepouibnsenainui

Arrow Air, Inc. v. Walsh, 645 So. 2d 422 (Fla. 1994)........

Ashcroft v. Calder Race Course, Inc., 492 So. 2d

is ia ieee a beinenaembeneeeaennsenneses

Askew v. Cross Key Waterways, 372 So. 2d 918 (Fla.

STITT als TEI Aare os eloehilanadeiuibenaniibeenenndeiennnpicigsiievoreeens

B.H. v. State, 645 So. 2d 987 (Fla. 1994) ..........ccceeceeseeseeee

Barron v. Florida Freedom Newspapers, Inc., 531

I I olin daics on sidsneistiicevovcunepasseeinnesavenveesuned

Bartnicki v. Vopper, 121 S. Ct. 1753 (May 21, 2001)........

Bitterman v. Bitterman, 714 So. 2d 356 (Fla. 1998)..........

Bludworth v. Palm Beach Newspapers, Inc., 476

So. 2d 775 (Fla. 4th DCA 1985) ou... ee ceeeecesesessceeeeee

Booksmart Enterprises, Inc. v. Barnes & Noble Coll.

Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA

Borges v. City of West Palm Beach, 858 F. Supp.

I ES BI, ven cniresusendsiustnnsndneivenseesersoseseonseoovsensi

Brown v. State, 358 So. Zi 16 (Fla. 1978)..............ccceeeeeeeee

R. App. 4

Church of Scientology Flag Service Organization v.

Office of the State Attorney of Pinellas County,

Florida, No. 00-4353-C1-13 (Fla. 6th Cir. July 5,

DOOO)......ccccecccecccssccscccscccssssseccesncesccsscessnsosnssnneesesssnseasensees 32

City of Orlando v. Desjardins, 493 So. 2d 1027 (Fla.

198G).......ccscccscsescecssescscccsscseressesscsceserssssensssnssnenssensensenss 26

Forsberg v. Housing Authority of City of Miami, 455

So. 2d 373 (Fla. 1984)........csessesceessseeeeseseeeeessseeeeeeees 43, 45

Good News Club v. Milford Central School, 121

S. Ct. 2093 (2ZOOL)........ceeercccensrrseserreeeensseeesracenseensensnsenes 25

Gray v. Bryant, 125 So. 2d 846 (Fla. 1960) ............eeseeeeeee 23

Gulf Stream Park Racing Association v. Miller, 119

So. 2d 749 (Fla. 2d DCA 1960).........eeeeereeesessereeeeeteesees 38

Gupton v. Village Key & Saw Shop, Inc., 656 So. 2d

AT5 (Fla. 1995) ....sscsssccccsssscesseessnecsersessssesescemmanssssssenseens 20

Halifax Hospital Medical Center v. News-Journal

Corp., 724 So. 2d 567 (Fla. PI ecacenreseneens 27, 28, 29, S4

Henderson v. State, 745 So. 2d 319 (Fla. 1999)....... clean 21

Lorei v. Smith, 464 So. 2d 1330 (Fla. 2d DCA 1985),

review denied, 475 So. 2d 695 (Fla. BI acsssbinsiacaiievienieatio’ 26

Los Angeles Police Department v. United Reporting

Publishing Corp., 120 S. Ct. 483 (1999) .......seserseeeeeees 25

McCarthy v. NASCAR, 226 A.2d 713 (N.J. 1967) .......-0000 38

Memorial Hospital-Wes. Volusia, Inc. v. News-

Journal Corp., 729 So. 2d 373 (Fla. 1999)... 19

Memorial Hospital-West Volusia, Inc. v. News-

Journal Corp., 784 So. 2d 438 (Fla. | ee 19, 21, 26

Metropolitan Dade County v. Chase Federal Hous-

ing Corp., 737 So. 2d 494 (Fla. 1999).......scccccccccsesees 20, 21

Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1

(Fla. 1982) ...........cccsscssscssssvessccssecssosscnseseecensesesesnsenssesnes 49

R. App. 5

Michael v. Douglas, 464 So. 2d 545 (Fla. 1985).....48, 45, 46

Midkiff v. NASCAR, 82 S.E.2d 417 (N.C. i 38

Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA BOOL) cseviceess 43

National Endowment for the Arts v. Finley, 118

Bh Sm, EI EI ssc sniinseaionsrnansteoeinntiteasiua oid 25

News-Journal Corp. v. Memorial Hospital-West

Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997)........ 19

News-Press Publishing Co. v. Gadd, 388 So. 2d 276

(Fla. 2d DCA 1980).............ccccscsssssiesessssssssceesoseececoesesescs, 26

Nixon v. Administrator of General Services, 433

St: : Rn OMNI En am iine tanya ANY 44

Owen v. R.J.S. Safety Equipment, Inc., 591 N.E.2d

Pe Pe Bs Ee heccintsienicinieehsinianieniamaialiat ia ae ene 38

Palm Beach Newspapers, Inc. v. Terlizzesse, 6 Fla.

Supp. 2d 8 (15th Cir. 1984)... ccccccccccccceceseseseseseceeeees, 36

Paul v. Davis, 424 U.S. 693 (1976) ..cecccccccccsceseceeeeeeeeeeccee.. 44

Plante v. Gonzalezi, 575 F.2d 1119 (5th Cir. ts | ae 49

Post-Newsweek Stations, Florida, Inc. v. Doe, 612

So. 2d 549 (Fla. 1992)... ccccssscssscscssssssesesesesesesecececc.. 43

Rosenberger v. Rector & Visitors of University of

Virginia, 515 U.S. 819 (1995) 2o.ececccccccesesesececececececeee., 25

Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982)....................... 20

Shevin v. Byron, Harless, Schaffer, Reid & Associ-

ates, 379 So. 2d 633 (Fla. 1980) .......cccccccecceocesceeeess.. 25, 44

Sims v. State, 754 So. 2d 657 (Fla. EE Giteiittinanitianesat 34

State Department of Transport v. Knowles, 402

So. 2d 1155 (Fla. 1981)... 0 cecccccecsscsscsesessecececeeeecesen. 20, 25

State v. Atlantic Coast Line R.R., 56 Fla. 617, 47

I Cn wiinssecviscindsihaiteatandiadaaedsiegee ieee ee a 34

R. App. 6

State v. Rolling, No. 91-882 CF A, 1994 WL 722891

(Pin. Othe Cie. SURLY B1, TIDE) ..vcvcrescscsescesscasvovsecvecevesnpvcoens 49

Staton v. Austin, 605 So. 2d 1266 (Fla. 1992) ................... 26

Staton v. McMillan, 597 So. 2d 940 (Fla. lst DCA

PE cassie serssimermnintitcitionsmniam 26

Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla.

FIG ckscsessscssistenremesininiemmeiimmmanane 21, 45, 46

United States v. Camacho, 22 Media L. Rep. (BNA)

JOG GD. Fit. TR ieicssssiserssnnsomenseimimmnnimesin 21, 22

Wait v. Florida Power & Light Co., 372 So. 2d 420

PRR: BED xricssisisvisniticiimeamianaanenl 46

Whalen v. Roe, 429 U.S. 589 (1977)...........sssscccssssscccesssseees 44

Williams v. City of Minneola, 575 So. 2d 683 (Fla.

BER TI. BO issesincceneistenssesstnrecesiesienannnen 39, 47

Wolfgang v. Mid-America Motorsports, Inc., 111

FOG 1B1G (IOC Cab. TOG 7) .cccesessserversscscnreceprssevevovevcevente 38

Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th

BA BIO) taccssipreninty cotinine 23

Monroe County v. Pigeon Key Historical Park, Inc.,

847 So. 2d 857 (Fla. 3d DCA 1967)..............ccccccccsssssseee 23

Constitutional Provisions, Statutes & Laws

De, COE, GING, B viissecisiecxeccesssesnnsatiteersinsntnnnesecnennenel 48

CF te CURR. GING, TEE Y cncccessennssassteesstvniertniiateoamamemanan 17

Pan Senet. O86. 5 BOG Bi cesses dacinenen 17, 42-43

Fla. Const. art. I, sec. 24

anbiinnbbaiianinaiaidaiiaas 3, 5, 6, 15, 17, 18, 22, 23, 26-29, 31, 34

Fem, GORE. CE. LID CRIGED orcocsssescesevensvennenmosnnvnece 5, 22, 23, 43

Fin. Stat § 119.07( 2) (BOOT) ...ecccercsessovcrssversreseorcvovucssseevas 3,5

R. App. 7

2 G5 Ch | ERE 22

Fla. Stat. § 119.15 (2001).................ccccsssscssscsssosesceeeeescceceeee 5

Pam. DOae. & GEDGRCE) CAGE) ceesccccccncvccccncsccvecssccceccsaccsoeensses 38

Chapter 2001-1, Laws of Florida

scevidabeaidiesiies 3, 7, 15, 18, 19, 21, 26, 27, 30, 31, 35, 40, 41

Other Authorities

Andrea G. Nadel, Annotation, Liability for Injury

or Death of Participant in Automobile or Horse

Race at Public Track, 13 A.L.R. 4th 623 (1982) ............ 38

Gerald B. Cope, A Quick Look at Florida’s New

Right of Privacy, 55 Fla. Bar J. 12, 12-13 (1980).......... 43

Joseph S. Jackson, Interpreting Florida’s New

Constitutional Right of Privacy, 33 U. Fla. L.

es Li scncicutisinnusivninechininenesiebesiduatieaineiesiinsoeisid 43

R. D. Woodson & Ricki L. Tannen, Federal Consti-

tutional Privacy & The Florida Public Records

Law: Resolving the Conflict, 33 U. Fla. L. Rev.

er See io nitiptnnipnieiasicinnapenbiteiiediaiabiiandinmacuaiaanuund 42,49

INTRODUCTION

After a three-day bench trial, the court below entered

a lengthy order that did not cite a single appellate deci-

sion, but that did express strong sentiments regarding

privacy rights. On the basis of those sentiments and a law

passed specifically to affect this litigation, the court

dismissed a complaint to enforce the Public Records Law

and ordered the records at issue permanently sealed.

That order should be reversed because the Florida

Legislature may not destroy substantive rights through

R. App. 8

retroactive legislation; the Florida Legislature may not

create exemptions to the Public Records Law that are

broader than necessary to serve the purpose of the exemp-

tion; and neither the Florida nor the United States Consti-

tution guaranty anyone the right to stop a public official

from complying with the Public Records Law.

STATEMENT OF THE CASE AND THE FACTS

Dale Earnhardt, one of the most famous racecar

drivers in history, died in a crash in the final lap of the

Daytona 500 on Sunday, February 18, 2001. (R. 1670-1696

q 75).

In accordance with chapter 406, Florida Statutes, an

agent of the medical examiner of the Seventh District in

and for Volusia County, Florida, conducted an autopsy on

Earnhardt on Monday, February 19, 2001. (R. 1670-1696

q 92).

Teresa Earnhardt commenced this action on Thurs-

day, February 22, 2001, seeking a temporary and perma-

nent injunction to stop Thomas Beaver, tne medical

examiner for Volusia County, Florida, from making photo-

graphs of the autopsy available to the public and the

press. (R.290-301). The Court entered an ex parte tempo-

rary injunction on the date that the lawsuit was filed. (R-

302-04).

After the Orlando Sentinel appeared in the action on

March 2, 2001, to oppose sealing of the records (R.315-17,

550-56), and other members of the Earnhardt family and

Dale Earnhardt, Inc. (referred to collectively with Teresa

Earnhardt as “the Earnhardts”) appeared to support

R. App. 9

sealing the records (R.347-49), the Court referred the

matter to mediation. (R.750-51).

As the mediation was coming to a conclusion on

March 16, 2001, Campus Communications, Inc., publisher

of The Independent Florida Alligator, a newspaper in

Gainesville, Florida, submitted a motion to intervene to

seek dissolution of the temporary injunction and dismissal

of or summary judgment against the complaint. The

motion alleged that Campus Communications had asked

that it be allowed to inspect and copy the autopsy photo-

graphs and that the medical examiner had hot complied

with the request. (R.771-803). Campus Communications

had not participated in the mediation.

On that same day, March 16, 2001, the parties who

had participated in the settlement — the Sentinel, addi-

tional intervening members of the press (R.755-58), the

medical examiner, and the Earnhardts — announced that

they had reached an agreement whereby the mediator

would appoint an independent expert to review the photo-

graphs and audictapes and would report his findings.

(R.766-69). The agreement further provided that after the

appointed expert examined the materials at issue they

would be permanently sealed. (R.766-69).

The circuit court approved the settlement on March

19, 2001. (R.770).

Ten days later, on March 29, 2001, the Florida Legis-

lature amended the Public Records Law to create an

exemptien to the Public Records Law for autopsy photo-

graphs. Chapter 2001-1, provided in its entirety:

An act relating to public records; pro-

viding an exemption from the public

R. App. 10

records law for photographs and video

and audio recordings of an autopsy;

providing an exemption for certain

members of the immediate family, or a

representative thereof, or a state or

federal agency; prohibiting the custo-

dian of a photograph or video or audio

recording of an autopsy from permitting

any person to view or duplicate a pho-

tograph or video or audio, except pur-

suant to court order and under the

direct supervision of the custodian or

his or her designee; exempting criminal

and administrative proceedings from

the act; requiring certain persons to be

parties in a request for access to a pho-

tograph or video or audio recording of

an autopsy; providing penalties; provid-

ing for future legislative review and re-

peal; providing a finding of public

necessity; providing a retroactive effec-

tive date.

Be It Enacted by the Legislature of the State of

Florida:

Section 1. (1) A photograph or video or audio

recording of an autopsy in the custody of a medi-

cal examiner is confidential and exempt from the

requirements of section 119.07(1) and s. 24(a), '

Art. I of the State Constitution, except that a

surviving spouse may view and copy a photo-

graph or video or listen to or copy an audio re-

cording of the deceased spouse’s autopsy. If there

is no surviving spouse, then the surviving par-

ents shall have access to such records. If there is

no surviving spouse or parent, then an adult

child shall have access to such records. A local

R. App. 11

governmental entity, or a state or federal agency,

in furtherance of its official duties, pursuant to a

written request, may view or copy a photograph

or video or may listen to or copy an audio re-

cording of an autopsy, and unless otherwise re-

quired in the performance of their duties, the

identity of the deceased shall remain confidential

and exempt. The custodian of the record, or his

or her designee, may not permit any other person

to view or copy such photograph or video re-

cording or listen to or copy an audio recording

without a court order. For the purposes of this

section, the term “medical examiner” means any

district medical examiner, associate medical ex-

aminer, or substitute medical examiner acting

pursuant to ch. 406, as well as any employee,

deputy, or agent of a medical examiner or any

other person who may obtain possession of a pho-

tograph or audio or video recording of an autopsy

in the course of assisting a medical examiner in

the performance of his or her official duties.

(2)(a) The court, upon a showing of good

cause, may issue an order authorizing any per-

son to view or copy a photograph or video re-

cording of an autopsy or to listen to or copy an

audio recording of an autopsy and may prescribe

any restrictions or stipulations that the court

deems appropriate. In determining good cause,

the court shall consider whether such disclosure

is necessary for the public evaluation of govern-

mental performance; the seriousness of the in-

trusion into the family’s right to privacy and

whether such disclosure is the least intrusive

means available; and the availability of similar

information in other public records, regardless of

form. In all cases, the viewing, copying, listening

to or other handling of a photograph or video or

R. App. 12

audio recording of an autopsy must be under the

direct supervision of the custodian of the record

or his or her designee.

(2)(b) A surviving spouse shall be given

reasonable notice of a petition filed with the

court to view or copy a photograph or video re-

cording of an autopsy or a petition to listen to or

copy an audio recording, a copy of such petition,

and reasonable notice of the opportunity to be

present and heard at any hearing on the matter.

If there is no surviving spouse, then such notice

must be given to the deceased’s parents, and if

the deceased has no living parent, then to the

adult children of the deceased.

(3)(a) Any custodian of a photograph or

video or audio recording of an autopsy who will-

fully and knowingly violates this section commits

a felony of the third degree, punishable as pro-

vided in section 775.082, section 775.083, or sec-

tion 775.084, Florida Statutes.

(b) Any person who willfully and knowingly

violates a court order issued pursuant to this sec-

tion commits a felony of the third degree, pun-

ishable as provided in section 775.082, section

775.083, or section 775.084, Florida Statutes.

(c) Acriminal or administrative proceeding

is exempt from this section, but unless otherwise

exempted, is subject to all other provisions of

Chapter 119, Florida Statutes, provided however

that this section does not prohibit a court in a

criminal or administrative proceeding upon good

cause shown from restricting or otherwise con-

trolling the disclosure of an autopsy, crime-scene,

or similar photograph or video or audio re-

cordings in the manner prescribed herein.

R. App. 13

(4) his exemption shall be given retroactive

application.

(5) The exemption in this section is subject

to the Open Government Sunset Review Act of

1995 in accordance with section 119.15, Florida

Statutes, and shall stand repealed on October 2,

2006, unless reviewed and saved from repeal

through reenactment by the Legislature.

Section 2. The Legislature finds that it is a

public necessity that photographs and video and

audio recordings of an autopsy be made confiden-

tial and exempt from the requirements of section

119.07(1), Florida Statutes, and Section 24(a) of

Article I of the State Constitution. The Legisla-

ture finds that photographs or video or audio re-

cordings of an autopsy depict or describe the

deceased in graphic and often disturbing fashion.

Such photographs or video or audio recordings

may depict or describe the deceased nude,

bruised, bloodied, broken, with bullet or other

wounds, cut open, dismembered, or decapitated.

As such, photographs or video or audio re-

cordings of an autopsy are highly sensitive depic-

tions or descriptions of the deceased which, if

heard, viewed, copied or publicized, could result

in trauma, sorrow, humiliation, or emotional in-

jury to the immediate family of the deceased, as

well as injury to the memory of the deceased. The

Legislature notes that the existence of the World

Wide Web and the proliferation of personal com-

puters throughout the world encourages and

promotes the wide dissemination of photographs

and video and audio recordings 24 hours a day

and that widespread unauthorized dissemination

of autopsy photographs and video and audio re-

cordings would subject the immediate family of

R. App. 14

the deceased to continuous injury. The Legisla-

ture further notes that there continue to be other

types of available information, such as the au-

topsy report, which are less intrusive and injuri-

ous to the immediate family members of the

deceased and which continue to provide for pub-

lic oversight. The Legislature further finds that

the exemption provided in this act should be

given retroactive application because it is reme-

dial in nature.

Section 3. This act shall take effect upon

becoming a law, and shall apply to all photo-

graphs or video or audio recordings of an autopsy,

regardless of whether the autopsy was performed

before or after the effective date of the act.

Approved by the Governor March 29, 2001.

Filed in Office Secretary of State March 29, 2001.

On April 3, 2001, Campus Communications filed

supplemental materials in support of its motion to inter-

vene showing that autopsy photographs historically have

played a critical role in press reports about murders,

medical malpractice, prison deaths and numerous other

public controversies. (R. 1163-1311). In some instances, the

press had found that medical examiners themselves have

made serious errors in determining the cause of death or

have themselves engaged in wrongdoing or questionable

practices. (R. 1163-1311 & Exs. 5-7, 9-10, 13, 15-17, 19, 22-

51). The supplemental materials also demonstrated that

the cause of Earnhardt’s death had become a public

controversy and that the photographs sought were rele-

vant to that controversy. (R. 1163-1311 & Exs. 2, 4 & 8).

On April 5, 2001, the circuit court granted Campus

_ Communications’ motion to intervene. (R.1334). On April

R. App. 15

16, 2001, Campus Communications filed a cross-claim

against the medical examiner seeking an order under the

Public Records Law requiring him to allow inspection and

copying of the Earnhardt autopsy photographs. (R.1359-

75). The claim asserted that Chapter 2001-1 could not be

applied retroactively to this case and, in any event, that

the exemption was broader than necessary to serve the

purpose for which it had been enacted.

The State of Florida intervened to defend the constitu-

tionality of Chapter 2001-1. (R.1376-79).

The medical examiner answered Campus Communi-

cations’ complaint on May 2, 2001, admitting that the

records sought by Campus Communications were public

records and that they were not exempt from the disclosure

requirements of that law at the time that they had been

requested, but asserting that he had been prevented from

allowing access to the records by the temporary injunction

that had been entered by the circuit court. (R.1415-17).

The State answered the complaint on May 9, 2001,

asserting that the Chapter 2001-1 was constitutional.

(R.1452-54). The State took no position regarding the

constitutionality of the Public Records Law prior to its

amendment even though the Earnhardts contended in

their complaint that the law invaded their state and

federal constitutional rights.

The Court set the case for a bench trial to begin on

June 11, 2001.

During the first day of the trial, the Court heard

testimony from Thomas Beaver, the Volusia County

medical examiner. Dr. Beaver testified that “it’s important

that we, as a society, know why people die, because ... it

hr. App. 16

helps us to identify risks to the society as a whole.” (T.

200). He testified that historically his office had treated

autopsy reports, including autcpsy photographs, as public

records and had released the reports and photographs

upon the request of any member of the public for inspec-

tion and copying. (T. 202 & R. 1670-1696 4 35).

He testified that he did not follow that practice in this

case because of the temporary injunction entered by the

circuit court. (T. 223).

In admissions filed with the Court, Dr. Beaver also

testified that as medical examiner for the Seventh Dis-

trict, he is responsible for investigating all deaths result-

ing from homicide, accidents or in sudden unexpected

circumstances, that he oversees about 650 autopsies

annually, and that his office has a staff of approximately

11 and an annual budget of approximately $1.1 million. (R.

1670-1696 VJ 27, 28 & 32).

Prior to this lawsuit, when a member of the public had

asked to inspect or copy the autopsy records relating to a

specific deceased person, that member of the public would

be allowed to inspect and copy all autopsy records relating

to the deceased person, including autopsy photographs,

videotapes, and audiotapes. (R. 1670-1696 {4 38). More

than 50 members of the public had inspected and copied

autopsy records maintained by Beaver within the 12-

month period preceding February 22, 2001. (R. 1670-1696

77 39 & 40). Beaver did not have a policy of requiring

notification of relatives of a deceased person before allow-

ing such access (R. 1670-1696 { 41) and rarely was such

notification given. (R. 1670-1696 ¥ 42).

Prior to this litigation, individuals who had copied

autopsy photographs had not used them for harmful

R. App. 17

purposes (R. 1670-1696 ] 43) and no one had ever asked

Beaver to deny members of the public the opportunity to

inspect or copy autopsy photographs, videotapes, or

audiotapes of a deceased person. (R. 1670-1696 { 44).

Individuals who previously had asked for and ob-

tained access to autopsy photographs included reporters,

privately-employed medical doctors, privately-employed

pathologists, privately-employed investigators, educators,

medical researchers, sociologists, and acquaintances and

relatives of the deceased (R. 1670-1696 7 45) and these

individuals sometimes expressed disagreement with the

conclusions of the medical examiner regarding the cause of

death after they reviewed the photographs. (R. 1670-1696

{ 48). Beaver himself had worked as a consultant in civil

and criminal litigation and found it essential to review any

autopsy photographs for that purpose. “[T]he first thing-I

ask the attorney for are the pictures,” he testified. (T. 235).

Medical examiners are not the only public officials

who take photographs of deceased persons, according to

Beaver. Photographs of the deceased are also taken by law

enforcement officials in some cases (R. 1670-1696 q 53),

although that was not done in the instant case. Those

photographs are not kept the custody of the medical

examiner, they are kept by law enforcement agencies. (R.

1670-1696 J 54).

Medical examiners also sometimes take photographs

of deceased persons other than autopsy photographs. For

example, they take photographs at the scene of an acci-

dent or before an autopsy is commenced. (R. 1670-1696

{ 55, 56 & 58). Such photographs are not autopsy photo-

graphs. (R. 1670-1696 J 59).

R. App. 18

Autopsy photographs historically have been used for a

wide variety of purposes. Beaver himself has given lec-

tures on autopsies or autopsy investigations (R. 1670-1696

{ 64) and he has displayed photographs of autopsies for

educational or training purposes to law enforcement

officials, medical students, physicians, forensic patholo-

gists, paramedics, and nurses. (R. 1670-1696 { 65). He also

has shown autopsy photographs to other medical examin-

ers or pathologists for the purpose of seeking a second

opinion (R. 1670-1696 ] 66) and to consultants for t'e

purpose of seeking an expert opinion. (R. 1670-1696 67).

In addition to providing the Court with background

regarding the historical treatment and use of autopsy

photographs, Beaver also explained the events leading up

to this litigation. In his admissions, he acknowledged that

in the week before Earnhardt died, the Orlando Sentinel

had published a series of investigative news reports that

~ were highly critical of the National Association for Stock

Car Auto Racing, Inc. (“NASCAR”), sponsor of the Daytona

500, for failing to require head and neck restraint systems

that could prevent basilar skull injuries in high speed

crashes. The articles pointed out that three NASCAR

drivers had died in NASCAR races in the previous nine

months of head and neck injuries. The articles reported

that other racing organizations had required the use of

head and neck restraint systems to prevent such injuries.’

* Specifically, on February 11, 2001, the Orlando Sentinel pub-

lished an article entitled “NASCAR idles while drivers die.” (R. 1670-

1696 {q 68 & 69 and attachments). On February 13, 2001, the Orlando

Sentinel published an article entitled “Safety slow to arrive despite race

carnage.” The same day, the Orlando Sentinel published an article

(Continued on following page)

R. App. 19

Immediately after Earnhardt’s death on February 18,

2001, Dr. Steve Bohannon, director of emergency medical

services for the International Speedway Corporation,

reported to the press that Earnhardt had died of a basilar

skull injury — precisely the same type of injury that had

killed the three NASCAR drivers that had been the

subject of the Orlando Sentinel’s critical reports. (T. 354).

Bohannon reiterated his conclusion at a press conference

the following day. (T. 354). To confirm Bohannon’s conclu-

sions, reporters requested records from the medical exam-

iner concerning the autopsy of Earnhardt. (R. 1670-1696

{ 104). They did not initially, however, request photo-

graphs of the autoysy. (R. 1670-1696 J 105).

On Wednesday, February 21, 2001, however,

Bohannon, asked the medical examiner’s staff to allow

him to inspect the photographs of the autopsy of Dale

Earnhardt. (R. 1670-1696 9117) (T. 353 & 361). The

medical examiner, consistent with his prior practices, did

not advise any relatives of Earnhardt of this request (R.

1670-1696 { 118) and allowed Bohannon’s inspection to go

forward. (R. 1670-1696 { 119-121). Bohannon was unable

to determine from his inspection of the photographs

whether Earnhardt’s fatal injury had been caused by

inertial head-whipping that could have been stopped by a

head and neck restraint, seat belt failure, or some other

cause. (T. 365).

After examining the photographs that day, Bohannon

reported the results of his inspection to Mike Helton, the

entitled “NASCAR drivers want own medical staff.” (R. 1670-1696

q 70).

R. App. 20

president of NASCAR. (T. 366). Helton told Bohannon that

Earnhardt’s seatbelt had failed. (T. 365-66).

On Thursday, February 22, 2001, Teresa Earnhardt

filed this lawsuit against-the medical examiner (R. 1670-

1696 7 127) even though no reporter had requested access

to or copies of photographs of the body of Dale Earnhardt

during or before the autopsy. (R. 1670-1696 J 128). On the

same day that the suit was filed, the circuit court entered

a preliminary injunction prohibiting release of the photo-

graphs. (R. 302-04).

On Friday, February 23, 2001, NASCAR sponsor of

the Daytona 500, held a press conference in Rockingham,

North Carolina, at which they announced that Earnhardt’s

seat belt had failed and that they did not know why. (R.

1670-1696 J 130) (T. 369). Bohannon attended the press

conference and expressed the opinion that the failure of

the seat belt could have been the mechanism that caused

the injury that caused Earnhardt’s death. (T. 369).

After the NASCAR press conference of February 23,

2001, reporters for the first time requested access to

photographs of the Dale Earnhardt autopsy. (R. 1670-1696

{ 132). The autopsy photographs would show the cause of

Dale Earnhardt’s death. (R. 1670-1696 7 137). The media-

tion ordered by the circuit court between the Earnhardts,

the Orlando Sentinel and other media (not including

Campus Communications) resulted in an agreement

between the mediating parties (R.766-69) that the media-

tor would appoint an independent expert to examine the

photographs for no more than 30 minutes and then issue a

report concerning the cause of Earnhardt’s death. Pursu-

ant to the agreement, the report would be filed with the

Court and the photographs then would be “totally and

R. App. 21

permanently sealed in the most secure manner possible.”

(R. 768).

On or about March 26, 2001, Dr. Barry Myers re-

- viewed the autopsy of Dale Earnhardt, including the

photographs of the autopsy. (R. 1670-1696 7 138). He then

issued a report on April 9, 2001, expressing his opinions

regarding the cause of Earnhardt’s death. (R. 1345-58).

The Myers’ report did not, however, put an end to the

controversy concerning either the cause of Earnhardt’s

death or whether NASCAR had tried to deflect criticism of

its safety requirements. Instead, with the photographs

still under seal, the report simply fueled further debate in

the national press.’ (R. 1941-82 Exs. 62-77 & 2395-2404).

The circuit court held that press reports concerning the

controversies surrounding Earnhardt’s death were irrele-

vant to the issues before him and he excluded them from

evidence. (R. 275).

At the conclusion of the first day of the trial, the

circuit court announced that he had found “that the

legislative enactment of Chapter 2001-1 was a valid and

constitutional exercise of legislative authority, pursuant to

Article 1, Section 24, of the Florida Constitution.” (R. 281).

? For example, on April 30, 2001, the San Diego Union-Tribune

reported: “NASCAR disputes Earnhardt story.” On May 1, 2001, the

Wisconsin State Journal reported: “Earnhardt’s son still believes seat

belt broke.” Also on the same day, The Dallas Morning News reported:

“Woman’s comments help Earnhardt seatbelt debate intensify.” The

following day, May 2, 2001, MSNBC headlined a report: “NASCAR

knows the truth behind death.” A day after that, May 3, 2001, USA

Today reported: “Earnhardt Jr. confident in NASCAR’s probe.” Also on

that day, NASCAR Scene Plus reported: “NASCAR's credibility is being

shredded by ‘Beltgate.’” (R. 1941-82 Exs. 62, 63, 64, 65, 66, 68 & 69).

R. App. 22

The trial court then invited Campus Communications to

attempt to show that it had “good cause” for obtaining

access to the photographs pursuant to the standards set

forth in Chapter 2001-1. (R. 281).

In response to that invitation, Campus Communica-

tions offered testimony of Daytona Beach Police Depart-

ment Sgt. Thomas Youngman, a police photographer (T.

323-51), Dr. Steve Bohannon (T. 352-99), and Teresa

Earnhardt (T. 406-82). Collectively, this testimony showed

that autopsy that the Earnhardt autopsy photographs

already had been made available to Bohannon and to

Myers, that access to the photographs was relevant and

important to resolution of the controversy concerning

Earnbardt’s death and NASCAR's safety requirements,

and that while Mrs. Earnhardt asserted that she would be

distressed by anyone having any access to the photo-

graphs, that public access would not in fact injure her or

others.

Campus Communications also again urged the Court

to consider the numerous news reports showing the

controversy that existed regarding the cause of Earn-

hardt’s death and NASCAR’s assertion that Earnhardt’s

seat belt failure, rather than its lack of safety require-

ments, had caused Earnhardt’s death. (T. 478-81). The

circuit court again declined to consider the news reports

and excluded them from evidence. (T. 482).

The circuit court then heard, over a relevance objec-

tion by Campus Communications (T. 482-83), testimony

from Michelle Bonnett and Beacher Orr, relatives of two

NASCAR drivers who also had been killed in crashes at

the Daytona International Speedway. (T. 488-531).

R. App. 23

After lengthy closing arguments (TT. 556-732), the trial

judge orally announced a ruling that even though Campus

Communications had asked for access to the photographs

on March 16, 2001, and the Legislature had not created an

exemption for the photographs until March 29, 2001,

Campus Communications had no ‘ight of access to the

photographs other than that provided under the amended

law and that Campus Communications had not shown

that it was entitled to access under the amended law. (T.

735-40).

He found that any bearing that the photographs

might have on NASCAR's safety requirements was irrele-

vant because “that’s a private matter that does not involve

the Government at all.” (T. 737). He acknowledged that

review of the photographs might show that the medical

examiner’s “office procedures ... could be different ...

[aJnd the investigation by the Daytona Beach Police

Department” might have been conducted differently, but

“these are incredibly thin excuses to invade the serious

privacy rights of the family.” (T. 738).

The trial judge also rejected the Earnhardts’ assertion

that they had any state or federal constitutional right to

require the sealing of the photographs. “Judgment shall be

entered in favor of Campus Communication, Inc. ... on

the action pursuant to Article I, Section 23 of the Florida

Constitution and the 14th Amendment to the United

States Constitution. The temporary injunction shall be

dissolved.” (T. 741).

Counsel for the Earnhardts then submitted a pro-

posed final judgment that, contrary to the circuit court’s

. oral ruling, not only dismissed Campus Communications’

complaint seeking access to the records, but also entered a

R. App. 24

permanent injunction sealing the records. Campus Com-

munications objected to the proposed final judgment. (R.

2432-68). The trial judge nevertheless entered the judg-

ment in the form submitted by the Earnhardts’ counsel (R.

2469-81), contradicting his own oral ruling.

Campus Communications moved for a new trial based

on the trial judge’s exclusion of news reports showing that

the records sought were relevant to an important public

controversy. (R. 2486-91). The trial judge denied that

motion. (R. 2492).

Thereafter, Campus Communications timely appealed

the final judgment. (R. 2493). Teresa Earnhardt and the

Estate of Dale Earnhardt cross-appealed, explicitly ac-

knowledging that the trial judge’s oral ruling and his

written final judgment were at odds and stating that they

would like to contest the oral ruling if it were regarded as

controlling over the written ruling. (R. 2501).

SUMMARY OF ARGUMENT

Point I — Chapter 2001-1 is Unconstitutional. Chapter

2001-1 is unconstitutional for two reasons: (A) it violates

due process by retroactively destroying the right that

Campus Communications had to inspect and copy the

records at issue at the time that it made its request, (B) it

violates article I, section 24 of the Florida Constitution

because it is broader than necessary to serve the purpose

for which it was enacted. The Legislature could have

* The excluded news reports are in the record at R. 934-61 and R.

1941-82.

R. App. 25

achieved its objective of preventing widespread dissemina-

tion of autopsy photographs on the Internet by allowing

inspection of the photographs without copying. The avail-

ability of this more narrowly tailored means of achieving

the objective invalidates the broad exemption from both

inspection and copying requirements.

Point II — The Plaintiffs Have No Constitutional Right

to Block Compliance with the Public Records Law. The

Florida Supreme Court has repeatedly held that there is

no state or federal constitutional right that allows indi-

viduals to seek injunctions against public officials to stop

them from complying with a requirement of the Public

Records Law. For that reason, the trial court’s oral ruling

rejecting the Earnhardt’s request for a permanent injunc-

tion was correct and the written final judgment granting

the permanent injunction should be reversed.

ARGUMENT

I.

Chapter 2001-1 is Unconstitutional

The trial court erred in holding that Chapter 2001-1

can be applied to deny access to the records at issue. The

law is facially unconstitutional in several respects.

A. Chapter 2001-1 May Not be Applied Retroactively.

In Memorial Hospital-West Volusia, Inc. v. News-

Journal Corp., 784 So. 2d 438 (Fla. 2001) (“Memorial

Hospital IT’), the Florida Supreme Court affirmed this

Court’s decision requiring the release of certain hospital

records. This Court had concluded that release of those

records was required notwithstanding the enactment of

R. App. 26

legislation exempting the records from the disclosure of

the Public Records Law because the Florida Supreme

Court had “reject[ed] the contention that the amended

statute should be applied retroactively.” Memorial Hospi-

tal-West Volusia, Inc. v. News-Journal Corp., 729 So. 2d

373, 384 (Fla. 1999) (“Memorial Hospital I’). Upon appeal,

this Court interpreted the new legislation as intended to

apply retroactively, but held it could not constitutionally

be applied retroactively. News-Journal Corp. v. Memorial

Hospital-West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA

1997).

In its recent decision, the Florida Supreme Court

disagreed with this Court’s conclusion that the legislature

intended to apply the new legislation retroactively. It

ruled that no such intention could be found. The Florida

Supreme Court therefore had no need to decide whether

the Florida Legislature has constitutional authority to

enact retroactive Public Records Law exemptions. That

decision, however, leaves in place this Court’s 1997 Memo-

rial Hospital decision which did hold that exemptions

cannot constitutionally be applied retroactively. This

Court should adhere to that decision.

Not only does this Court’s Memorial Hospital decision

require reversal of the decision below, but so also does a

long line of decisions governing substantive rights.“ In

* See Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d

494, 503 (Fla. 1999); see also Bitterman v. Bitterman, 714 So. 2d 356,

363 (Fla. 1998) (“Substantive rights cannot be adversely affected by the

enactment of legislation once those rights have vested”); Gupton v. Vill.

Key & Saw Shop, Inc., 656 So. 2d 475, 477 (Fla. 1995) (a substantive

law that interferes with vested rights will not be applied retroactively);

Alamo Rent-a-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994); Rupp v.

(Continued on following page)

R. App. 27

Memorial Hospital II, the Florida Supreme Court reaf-

firmed its view that the right of access granted by the

Public Records Law and article I, section 24 of the Florida

Constitution “is a substantive right.” Classification of the

right of access as substantive is significant because “retro-

active abolition of substantive vested rights prohibited by

due process considerations.”

There can be no doubt but that Campus Communica-

tions’ substantive right of access to the records at issue

vested prior to the March 29, 2001, enactment of chapter

2001-1, because the records came into the public domain

on February 19, 2001, the date on which the autopsy was

conducted. The Public Records Law operates to “placef ]

the books on the table.” Tribune Co. v. Cannella, 458

So. 2d 1075, 1078 (Fla. 1984)’ In addition, Campus

Bryant, 417 So. 2d 658, 661 (Fla. 1982) (“[D]ue process considerations

--. prohibit retroactive abolition of vested rights”) (holding statute

expanding public officer immunity could not retroactively abolish “right

to seek recovery” asserted in pre-enactment suit); State Dep’t of Transp.

v. Knowles, 402 So. 2d 1155 (Fla. 1981) (holding same statute could not

constitutionally diminish a pre-enactment non-final jury award against

newly immunized officer).

* See Mem. Hosp.-W. Volusia, Inc. v. News-Journal Corp., 784

So. 2d 438, 441 (Fla. 2001) (“Memorial Hospital II”); see also Allen v.

Butterworth, 756 So. 2d 52, 66 (Fla. 2000) (holding legislature “has the

authority to define the substantive right to public records” but not the

power to regulate “the procedure for public records production in capital

cases”); Henderson v. State, 745 So. 2d 319, 326 (Fla. 1999) (construing

public records law as substantive).

* Chase Fed. Hous. Corp., 737 So. 2d at 503.

" The law plainly had that impact because Steve Bohannon was

allowed to inspect the records on February 21, 2001. The prior release

of records to a member of the public undermines the justification for

withholding the records from other members of the public. See, e.g.,

United States v. Camacho, 22 Media L. Rep. (BNA) 1845, 1849-50 (S.D.

(Continued on following page)

R. App. 28

Communications requested the records on March 16,

thirteen days before enactment of chapter 2001-1. At the

time that the request was made, the medical examiner

had no statutory basis to deny the request and he asserted

no basis to deny the request. The only basis for denying

the request was the improvidently granted temporary

injunction that the trial judge ultimately vacated. Campus

Communications was entitled to production of the records

at the time that it made its request. In Cannella, the

Florida Supreme Court held that delay in the production

of public records is antithetical to the purpose of the law.

“Delaying inspection ... is not within the legislative

scheme.” Jd. at 1076.

Section 119.11, Florida Statutes, plainly recognizes

the immediate vesting of the right to inspect and copy

records in its creation of not only a right to seek immedi-

ate judicial enforcement of the statute, but also a right to

an expedited judicial determination of such a claim.

Significantly, Campus Communications’ right to inspect

and copy the records arose not only under chapter 119, but

also under article I, section 24(a), of the Florida Constitu-

tion which provides: “Every person has the right to inspect

or copy any public record made or received in connection

with the official business of any public body, officer, or

employee of the state, other persons acting on their behalf,

except with respect to records exempted pursuant to this

section or specifically made confidential by this Constitu-

tion.” Article I, section 24(a), adopted in 1992, “elevated

Fla. 1994) (allowing CNN access to victim photographs where other

members of the press previously had access to same photographs)

(Marcus, J.).

R. App. 29

the public’s right to government in the sunshine to

constitutional proportions.”

Article I, section 24(c) of the Florida Constitution

specifies that the right of access “shall be self-executing™

Thus, even independent. of the clear and specific mecha-

nism of chapter 119, Campus Communications’ right of

access to the records at issue would have vested by virtue

of the mandate of article I, section 24(a).

That the Legislature may have been contemplating

legislation to create an exemption to the disclosure re-

quirements of the Public Records Law and to article

section 24(a) at the time that Campus Communications

submitted its request could not have prevented Campus

Communications’ rights from vesting at the time of its

request or earlier. To hold otherwise would authorize every

public official to withhold public records merely because of

the mere possibility that legislation would be passed to

exempt the requested record from the law.” This could

eviscerate the law by authorizing the indefinite withhold-

ing of records whenever there was a possibility of new

* Zore v. City of Vero Beach, 722 So. 2d 891, 896 (Fla. 4th DCA

1998) citing Monroe County v. Pigeon Key Historical Park, Inc., 647

So. 2d 857 (Fla. 3d DCA 1967).

’ A self-executing right “lays down a sufficient rule by means of

which the right or purpose which it gives or is intended to accomplish

may be determined, enjoyed, or protected without aid of legislative

enactment.” Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960).

* Because Campus Communications submitted its request for

access to records before the Legislature acted, the Court need not decide

in this case whether a member of the press or public that requested the

records after the Legislature acted would have a vested substantive

right.

R. App. 30

legislation. Would the filing of a bill alone be regarded as a

sufficient basis for a public records custodian to withhold a

record? Would committee action be sufficient? Should

courts stop enforcing the law if its repeal is simply advo-

cated? Could a public official be deemed to have violated

the law if he or she withheld a record because the law

might be amended, but it was not? How long should courts

await legislative action? These questions demonstrate that

the rule of law must be that a public records custodian

may not withhold records once they have been requested

even though a prospect exists for the law to change.

Traditional principles governing the determination of

whether a statute can, consistent with due process, be

applied retroactively, also lead to the conclusion that

Campus Communications’ right to inspect and copy the

photographs, videotapes, and audiotapes vested. “Despite

formulations hinging on categories such as ‘vested rights’

or ‘remedies,’ it has been suggested that the weighing

process by which courts in fact decide whether to sustain

the retroactive application of a statute involves three

considerations: the strength of the public interest served

by the statute, the extent to which the right affected is

abrogated, and the nature of the right affected.””

The right of access to public records always has been

regarded as a paramount value in Florida.” It assures

government accountability and protects the public and

individuals against both negligence and corruption.

" Knowles, 402 So. 2d at 1158.

” See generally Shevin v. Byron, Harless, Schaffer, Reid & Assocs..

379 So. 2d 633, 640 (Fla. 1980).

R. App. 31

Abrogation of the right is complete. Although the legisla-

tion creates the possibility that records may be released

through a court order in some circumstances,” it cannot be

denied that in many instances that new law denies access

to records that previously had been allowed. Indeed, in

this case the Earnhardts successfully argued that Chapter

2001-1 had destroyed Campus Communications’ right of

access." Finally, the nature of the right affected is

" The criteria specified by the Legislature for allowing access are

themselves constitutionally deficient because they invite, if not require, _

judges to deny access based on the viewpoint of the requester. Even if

the state has no constitutional obligation to grant access, see L.A. Police

Dep't v. United Reporting Pub’g Corp., 120 S. Ct. 483 (1999), once it

decides to grant access, it may not consistent with the First Amend-

ment and Equal Protection Clause deny access to some on the basis of

viewpoint. Cf. Legal Servs. Corp. v. Velazquez, 121 S. Ct. 1043, 1050

(2001) (government cannot condition subsidies on basis of viewpoint);

Good News Club v. Milford Cent. School, 121 S.Ct. 2093 (2001)

(exclusion of Christian children’s club from meeting after hours was

unconstitutional viewpoint discrimination); National Endowment for

the Arts v. Finley, 118 S. Ct. 2168 (1998) (NEA may not “leverage its

power to award subsidies on the basis of subjective criteria into a

penalty on disfavored viewpoints”); Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819 (1995) (state university may not disburse

student activity fees on viewpoint-based terms); Anderson v. Cryovac,

805 F.2d 1, 9 (1st Cir. 1986) (“danger in granting favorable [access] to

certain members of the media is obvious: it allows the government to

influence the type of substantive media coverage that public events will

receive”). The court in the instant case expressly grounded its decision

denying access, in part, on the viewpoint of the requesters that autopsy

photographs under some circumstances should be published. (R. 2469-

81 at {¥ 15-16) (referencing past and future publications of the

requesters as justification for denying access). Both the order and

Chapter 2001-1 abridge the First Amendment and deny equal protec-

tion by denying on the basis of viewpoint access to records made

available to others.

‘* But see Point II infra. Before enactment of chapter 2001-1,

records could be accessed irrespective of the reason for which they were

(Continued on following page)

R. App. 32

fundamental. Through their adoption of article I, section

24 of the Florida Constitution, the people of the State of

Florida eliminated any doubt that the Courts should

accord their right of access fundamental stature. Memorial

Hospital II, 784 So. 2d at 481. Today, the right of access to

public records is plainly a substantive, vested right that

the Legislature cannot, consistent with due process,

destroy through retroactive legislation.”

sought. See Booksmart Enters., Inc. v. Barnes & Noble Coll. Bookstores,

Inc., 718 So. 2d 227, 228, n.2 (Fla. 3d DCA 1998) (“reason for wanting to

view and copy the documents is irrelevant”); Staton v. McMillan, 597

So. 2d 940, 941 (Fla. lst DCA 1992), review dismissed sub nom., Staton

v. Austin, 605 So. 2d 1266 (Fla. 1992) (reasons for seeking access “are

immaterial”); Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985)

(“legislative objective ... was to insure ... the right freely to gain

access to governmental records. The purpose for such inquiry is

immaterial.”), review denied, 475 So. 2d 695 (Fla. 1985); News-Press

Publishing Co. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) (“the

newspapers motives [for seeking the documents], as well as the

hospital’s financial harm and public harm defenses, are irrelevant in an

action to compel compliance with the Public Records Act”).

* In City of Orlando v. Desjardins, 493 So. 2d 1027 (Fla. 1986), the

Supreme Court held that the Legislature could apply a “remedial”

exemption to the Public Records Law without violating due process.

‘Tue statute at issue in that case, an exemption for the work product of

an agency attorney, unlike the chapter 2001-1, did not impose on

requesters of the records a requirement that they show good cause.

Instead, that statute, section 119.07(3)(0), Florida Statutes (1984

Supp.), simply postponed the time at which a requester could have

access to the records until after the conclusion of the litigation. The

work product exemption therefore could be classified as “remedial” in

nature because it merely delayed the release of the records. By con-

trast, chapter 2001-1 entirely destroys the right of access unless the

requester demonstrates good cause to a court. The requester who

refuses to or who cannot demonstrate good cause will have no right at

all even though his or her right would have been absolute prior to

enactment of chapter 2001-1. Desjardins is also distinguishable in that

(Continued on following page)

R. App. 33

B. The Legislature Violated Article I, Section 24

of the Florida Constitution by Enacting Chap-

ter 2001-1

The Florida Legislature violated article I, section 24(c)

of the Florida Constitution when it adopted chapter 2001-1

in that the Legislature did not state with specificity the

public necessity for the law and the law is broader than

necessary to accomplish the stated purpose of the law.

Article I, section 24(c) states that to enact an exemption to

the disclosure requirements of article I, section 24(a), the

Legislature first must “state with specificity the public

necessity justifying the exemption” and then must tailor

the exemption so that it is “no broader than necessary to

accomplish the stated purpose of the law.”

The Florida Supreme Court has applied this constitu-

tional provision only once, in Halifax Hospital Medical

Center v. News-Journal Corp., 724 So. 2d 567, 569 (Fla.

1999). In that case, the circuit court invalidated an exemp-

tion created for “critical confidential information” in the

possession of public hospitals. Circuit Judge John V. Doyle

held:

The evidence in this case thus showed and the

Court finds that not all aspects of written strate-

gic plans are critical and confidential. .. . By cre-

ating an exemption for any and all discussion of

it was rendered six years before the adoption of article I, section 24,

Fla. Const., and well before Memorial Hospital II, All substantive rights

are protected by due process against retroactive destruction. In Arrow

Air, Inc. v. Walsh, 645 So. 2d 422 (Fla. 1994), the Court made clear that

Desjardins does not allow the Legislature to destroy substantive vested

rights.

R. App. 34

the strategic plan, the legislature has created a

categorical exemption which reaches far more in-

formation than necessary to accomplish the pur-

pose of the exemption. All discussion of strategic

plans is made secret solely to protect that part of

the discussion which pertains to critical confi-

dential information. This is facial overbreadth.

Id. at 570 (quoting the final judgment). The defendant had

asked the circuit court to narrow the exemption by defin-

ing what constitutes “critical and confidential informa-

tion,” but the circuit court declined that request, holding

that “such a finding is fundamentally legislative rather

than judicial.” Id. at 569.

This Court affirmed, agreeing that not all aspects, of

written strategic plans are critical and confidential and

that it should not attempt to save the statute by a narrow-

ing judicial construction. Id. The Court held the statutory

exemption “overbroad on its face.”

The Florida Supreme Court agreed with this Court

that “the statutory exemption does not meet the exacting

constitutional standard of article I, section 24(c), of speci-

ficity as to stated public necessity and limited breadth to

accomplish that purpose and is therefore facially unconsti-

tutional.” Jd.

In response to the defendant’s request for a judicial

narrowing of the exemption to save it, the Supreme Court

acknowledged a statute should be construed so as not to

conflict with the constitution, but held that “a court’s

discretion to adopt a narrowing construction should be

exercised with restraint.” Halifax Hospital Medical Center,

724 So. 2d at 570. The Court held, “we find in this case

that we cannot move into the legislature’s province by

R. App. 35

making the factual determination that would bring this

statutory exemption within constitutional boundaries. A

court may not have the fact-finding machinery to enable it

to authoritatively construe a statute and supply a saving

construction.” Jd.

The Court observed: “In this case, we do not have

before us the relevant information to define ‘critical

confidential information’ or ‘strategic plans’ for which

disclosure would harm the business interests of the

hospital. Moreover, in enacting exemptions to Florida’s

public disclosure laws, the leyislature has an express

constitutional obligation to tailor such an exemption so

that it is no broader than necessary to accomplish the

exemption’s stated purpose. Thus, the task of enacting

more limited statutory exemption appropriately belongs to

the legislature in this case.” Id.

In applying article I, section 24(c) and the holding of

the Halifax case to this case, this Court must first exam-

ine the articulated “public necessity” that justifies enact-

ment of the exemption. This articulation is found in

section 2. It provides, in pertinent part, that “photographs

or video or audio recordings of an autopsy depict or de-

scribe the deceased in graphic and often disturbing fash-

ion.” (Emphasis added). It further states “Such

photographs or video or audio recordings may depict or

describe the deceased nude, bruised, bloodied,, broken,

with bullet or other wounds, cut open, dismembered, or

decapitated.” (Emphasis added). It then concludes that “As

such, photographs or video or audio recordings of an

autopsy are highly sensitive depictions or descriptions of

the deceased which, if heard, viewed, copied or publicized,

could result in trauma, sorrow, humiliation, or emotional

injury to the immediate family of the deceased, as well as

’—

———$$$__—

R. App. 36

injury to the memory of the deceased.” Each of these

sentences reflects that the Legislature regarded chapter

2001-1 as necessary because access to the materials at

issue could, in some circumstances, inflict emotional injury

on the immediate family of the subject of those materials.

In choosing the word “often” rather than “always,” the

word “may” rather than “do,” and the word “could” rather

than “will” or “would,” the Legislature explicitly acknowl-

edged that the viewing, copying or publicizing of photo-

graphs does not always result in trauma, sorrow,

humiliation, or emotional injury. The exemption therefore

is overbroad on its face in the same way that the exemp-

tion in Halifax was overbroad on its face. The Legislature

* The Legislature not only has acknowledged through its choice of

words that access to autopsy photographs, videotapes, and audiotapes

will always not inflict emotional harm, it also has acknowledged that in

some circumstances the value of unfettered access to such materials

outweighs any risk that emotional harm will be inflicted by the access.

It does the latter by stating that “a surviving spouse may view and copy

a photograph or video or listen to or copy an audio recording off 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.” Presumably the Legislature included this provision

because spouses, parents and children often will have a need for such

records for insurance and estates purposes. That obviously would not

always be the case. In some instances, an individual who is within the

exemption — for example, an estranged spouse, parent, or child — might

well be the one individual who is most likely to misuse the materials to

inflict emotional harm on others. In other cases, persons other than

those listed in the statute such as non-spousal life partners or non-

familial beneficiaries —- will have an equally strong, if not greater,

interest in access to the records. In its failure to allow these individuals

the unfettered access that will be enjoyed by others, the statute is

overly broad and in violation of article I, section 24(c)

R. App. 37

simply has exempted more records than are necessary to

serve the purpose of the exemption.

Section 2 of chapter 2001-1 further observes that “the

World Wide Web and the proliferation of personal com-

puters throughout the world encourages and promotes the

wide dissemination of photographs and video and audio

recordings 24 hours a day and that widespread unauthor-

ized dissemination of autopsy photographs and video and

audio recordings would subject the immediate family of

the deceased to continuous injury,” In choosing the word

“would” in this sentence, the Legislature perhaps had this

specific case in mind. It plainly could not have made that

finding with respect to all immediate family members of

deceased persons because in some instances, immediate

family plainly might prefer that the public have the right

to inspect, copy, and publish autopsy photographs. For

example, when an autopsy photograph would be instru-

mental in persuading legislators that action should be

taken to impose certain safety requirements, family

members might be gratified by that use of photographs.

Family members also might be gratified by inspection,

copying, and publication of autopsy records that leads to

the discovery of malpractice or to the uncovering of

wrongdoing.”

" In Church of Scientology Flag Service Organization v. Office of

the State Attorney of Pinellas County, Florida, No. 00-4353-C1-13 (Fla.

6th Cir. July 5, 2000) (writ of mandamus and order denying motion for

temporary injunction), the circuit court ordered the release of autopsy

photographs to the St. Petersburg Times. In that case, Ms. McPherson

died while in the custody of the Church of Scientology. The St. Peters-

burg Times sought access to the photographs to demonstrate that the

(Continued on following page)

R. App. 38

A further difficulty with the breadth of the new

exemption is that inspection alone presents no legally

significant risk that the photographs would be published.

The Earnhardt family argued below that allowing inspec-

tion of photographs would create a risk of publication

because of the availability of small cameras used for

espionage. This argument proves too much. If one assumes

that the public will violate the law to obtain copies of

autopsy photos for dissemination, there is no reason to

conclude that merely limiting public inspection will be

effective. Employees could be bribed and photographs

could be stolen whether inspection were allowed or not.

The mere possibility that a precaution can be circum-

vented by illegal activity does not show that a less restric-

tive precaution (denial of copying) would not be as

effective as the most restrictive precaution (denial of all

access) to prevent the harm. If the harm to be avoided is

publication of autopsy photographs, then the Legislature

plainly had available a less restrictive means of achieving

that objective than the means that it chose.

The overbreadth of the statute is not saved by the

inclusion of a mechanism by which a court can order the

disclosure of some autopsy photographs because the

legislature has not directed that courts to require disclo-

sure where harm would not be caused by inspection,

copying, or publication of the photographs. Instead, the

legislature has directed courts to order the release of

autopsy photographs “upon a showing of good cause.” The

legislature has done nothing to define “good cause,” other

church had mistreated Ms. McPherson. The church, but not the

McPherson family, opposed the release of the records.

R. App. 39

than to indicate that “the court shall consider whether

such disclosure is necessary for the public evaluation of

governmental performance; the seriousness of the intru-

sion into the family’s right to privacy and whether such

disclosure is the least intrusive means available; and the

availability of similar information in other public records,

regardless of form.” These criteria do nothing to ensure

that a court’s discretion will be confined so that it will

allow inspection of materials that will not cause the harm

that supposedly justifies the exemption. In fact, the

statute does not require the court to release materials

under any knowable circumstances. Instead, this part of

the statute simply transfers legislative powers to the

judiciary and recommends factors for the judiciary to

consider in making ad hoc determinations of whether ad

hoc access will be allowed to particular records.”

* This creates yet another constitutional defect in Chapter 2001-1.

The Legislature may not delegate the power to enact a law or the right

to exercise unrestricted discretion in applying the law. See Sims uv.

State, 754 So. 2d 657 (Fla. 2000); B.H. v. State, 645 So. 2d 987, 991-92

(Fla. 1994); Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla

1979); State v. Atl. Coast Line R.R., 56 Fla. 617, 47 So. 969 (1908). The

Legislature may “enact a law, complete in itself, designed to accomplish

a general public purpose, and may expressly authorize designated

officials” to administer the law, but only “within definite valid limita-

tions” to allow “operation and enforcement of the law within its

expressed general purpose.” Atlantic Coast Line Railroad Co., 56 Fla. at

636-37, 47 So. at 976. Chapter 2001-1 does not provide sufficiently

definite, valid limitations to allow for the complete operation and

enforcement of the exemption. Instead, the legislature has left the

courts to determine what constitute “good cause” for the disclosure of

the autopsy records at issue and, to the extent that the legislature has

provided guidance with respect to that determination, it has done so

on the basis of criteria that are impermissibly based on the past or

future expression of the requester. The Florida Supreme Court held a

(Continued on following page)

R. App. 40

This type of legislation offends article I, section 24(c)

in much the same fashion that the defendants’ request for

a narrowing construction of the exemption in the Halifax

case offended article I, section 24(c). “[IJn enacting exemp-

~ tions to Florida’s public disclosure laws, the legislature

has an express constitutional obligation to tailor such an

exemption so that it is no broader than necessary to

accomplish the exemption’s stated purpose.” Halifax

Hospital Medical Center, 724 So. 2d at 570. By allowing

the judiciary to decide which autopsy records will be

exempt, the Legislature has failed to exercise its constitu-

tional duty.

Il.

Campus Communications Should Have Been

Granted Access Under Chapter 2001-1

In the event that the Court upholds the constitution-

ality of chapter 2001-1, it then should consider whether

the circuit court erred in holding that Campus Communi-

cations had not shown good cause under chapter 2001-1 to

inspect and copy the photographs. The Court’s ruling is

based on findings that are not supported by substantial

similarly imprecise statute regulating speech to be an invalid delega-

tion of legislative authority in Brown v. State, 358 So. 2d 16, 20 (Fla.

1978). The statute in that case made it a misdemeanor to use “profane,

vulgar and indecent” language in any public place or private premises

within the hearing of others. By leaving to the courts the task of giving

meaning to these imprecise terms, the legislature had improperly

delegated its legislative authority. “The Florida Constitution requires a

certain precision defined by the legislature, not legislation articulated

by the judiciary.” Jd. at 20.

R. App. 41

competent evidence and legal conclusions that are incor-

rect.

Chapter 2001-1 first suggests that a trial judge should

consider whether access to the records is necessary for

public evaluation of governmental performance. The

circuit court erred as a matter of law interpreting this

criterion as narrowly as it did. Access to autopsy reports,

including photographs, has been regarded as necessary for

such evaluation for many years. The Legislature first

enacted the Public Records Law in 1909. 1909 Laws of

Florida, chapter 5942, sec. 1. The statute stated: “All state,

county, and municipal records shall at all times be open for

a personal inspection of any citizen of Florida,” No exemp-

tion was made for autopsy reports. The law has been

amended innumerable times since 1909, but until this

year, there was no general exemption for autopsy reports”

* The Legislature did exempt the autopsy reports of eight county

medical examiners in the 1950s and 1960s. See Ch. 27439, 1951, Laws

of Florida (Broward County); Chapter 59-1242, Laws of Florida (Duval

County); s. 10, Ch. 63-1142, Laws of Florida, (confidentiality of records

of Brevard County medical examiner); s. 9, Ch. 59-1381, Laws of

Florida, (confidentiality of records of Indian River County medical

examiner); s. 12, Ch. 67-1704, Laws of Florida, (Martin County); s. 9,

Ch. 1063, 1955 (Orange County); s. 5, Ch. 61-2640, Laws of Florida,

(Palm Beach County); s. 9, Ch. 31270, 1955, Laws of Florida (Sarasota

County). But in 1970, the Legislature enacted s. 11, Ch. 70-232, Laws of

Florida (codified as chapter 406, Florida Statutes), to govern medical

examiners generally and it superseded these special acts without

including any exemptions for records created by medical examiners. In

an informal opinion on August 21, 1974, the Attorney General con-

cluded that autopsy reports are open to public inspection and copying.

The Attorney General reiterated this conclusion two years later in a

formal opinion, Opinion 76-156. In 1984, a circuit court held that

chapter 406 repealed all special laws exempting autopsy records from

the inspection and copying requirements of chapter 119, Palm Beach

(Continued on following page)

R. App. 42

and for good reason. Access to autopsy reports helped to

ensure that the medical examiner did his job correctly and

inspired public confidence in conclusions reached by the

medical examiner. Both are important objectives because

the medical examiner is in many ways the public’s first

line of defense against criminal activity, product liability,

and disease. That official is required to determine the

cause of a death that occurs by crime or accident or under

any unusual circumstances.” The ability to review the

medical examiner’s work is therefore vital to the public

and the press.” Closing objective records such as photo-

graphs to the public, substantially interferes with the

Newspapers. Inc. v. Terlizesse, 6 Fla. Supp. 2d 8, 10 (15th Cir. 1984),

and ordered production of the autopsy report prepared by the Palm

Beach County Medical Examiner in connection with the death of David

Kennedy, the son of the late Senator Robert F. Kennedy. The Fourth

District Court of Appeal upheld this ruling in Bludworth v. Palm Beach

Newspapers, Inc., 476 So. 2d 775 (Fla. 4th DCA 1985).

* Autopsies are authorized by the Medical Examiner by section

406.11, Florida Statutes, when any person dies in the state of criminal

violence, by accident, by suicide, suddenly, when in apparent good

health, unattended by a practicing physician, in prison or a penal

institution, in police custody, in any suspicious or unusual circum-

stance, by criminal abortion, by poison, by disease constituting a threat

to public health, by disease, injury, or toxic agent resulting from

employment; when a dead body is brought into the state without proper

medical certification; or when a body is to be cremated, dissected, or

buried at sea.

* Reporters regularly have exercised that right to investigate and

to report about criminal activities, accidental deaths and other impor-

tant matters. See Carl Hiaasen, Banning Autopsy Photos is Dangerous,

The Miami Herald (Mar. 11, 2001) (“Many times, deaths that initially

were ruled accidents or suicides have later been revealed as homicides.

These crimes were uncovered because someone took a fresh look at the

case. It might have been a family member or a friend, an insurance

investigator or even a journalist.”).

R. App. 43

public’s ability to evaluate the medical examiner’s work. It

is left solely with the subjective autopsy report and no

ability to evaluate its accuracy.

The circuit court acknowledged that access to the

records also might help to evaluate NASCAR's safety

requirements, but deemed this to be a “private” matter,

not involving governmental performance. NASCAR con-

ducts races, however, only with the approval of the gov-

ernment. The Legislature certainly has the power to stop

races that regularly result in the deaths of drivers or to

condition their continuance on the organizer taking

certain safety precautions. The photographs that were

sought in this case could help to confirm that Dale Earn-

hardt’s death could have been prevented had certain

safety equipment been required by NASCAR. That might

lead to legislation to make racing safer.”

* Significantly, the Legislature already has adopted laws that are

designed to protect race organizers from liability suits arising from the

deaths of drivers. See Fla. Stat. § 549.09(2) (2001) which provides “[aJny

person who operates a closed-course motorsport facility may require, as

a condition of admission to any nonspectator part of such facility, the

signing of a liability release form. The persons or entities owning,

leasing, or operating the facility or sponsoring or sanctioning the

motorsport event shall not be liable to a nonspectator or her or his

heirs, representative, or assigns for negligence which proximately

causes injury or property damage to the nonspectator area during the

period of time covered by the release.” Section 540.09(2), Florida

Statutes. Without such legislation, race organizers could be sued for

ordinary negligence. See, e.g., Ashcroft v. Calder Race Course, Inc., 492

So. 2d 1309 (Fla. 1986). Although the doctrine of “assumption of the

risk” tempered the impact of the negligence doctrine in this area, see,

e.g., Gulf Stream Park Racing Ass’n v. Miller, 119 So. 2d 749 (Fla. 2d

DCA 1960), it did not foreclose the possibility of a lawsuit for negligence

being filed. In other states, the liability of racetrack owners and race

(Continued on following page)

R. App. 44

The intrusion into the family’s right to privacy by

inspection and copying of the records cannot be found to

invade the family’s privacy rights at all because the family

would not even be aware of the inspection or copying. The

misuse of autopsy photographs after they have been

inspected and copied can, of course, be tortious. In Wil-

liams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA

1991), this Court reviewed a claim that police officers had

violated the rights of the mother and sister of a 14-year-

old boy who had died of a drug overdose by gratuitously

showing the videotape of the boy’s autopsy and by gratui-

tously displaying autopsy photos in a party atmosphere

where the audience was joking and laughing. The Court

held that this behavior — not the inspection or copying of

the records — could constitute intentional infliction of

emotional distress.” “One who behaves outrageously with

promoters and sponsors such as NASCAR has been established in a

wide variety of circumstances. See, e.g., Wolfgang v. Mid-America

Motorsports, Inc., 111 F.3d 1515 (10th Cir. 1997) (affirming jury verdict

for plaintiff in action arising from severe injuries to driver where

promoter recklessly disregarded safety risk); Owen v. R.J.S. Safety

Equipment, Inc., 591 N.E.2d 1184 (N.Y. 1992) (rejecting assumption of

risk defense where spouse of deceased race car driver demonstrated

that driver subjected to dangerous conditions above usual dangers

inherent in auto racing); Arnold v. Shawano County, 317 N.W.2d 161

(Wis. App. 1982) (summary judgment for owner and operator of track

reversed); McCarthy v. NASCAR, 226 A.2d 713 (N.J. 1967); Midkiff v.

NASCAR, 82 S.E.2d 417 (N.C. 1954); see generally Andrea G. Nadel,

Annotation, Liability for Injury or-Death of Participant in Automobile or

Horse Race at Public Track, 13 A.L.R. 4th 623 (1982).

* The Court also held that the conduct of the defendants could not

constitute a common law invasion of the plaintiffs’ privacy. The Court

found “two basic problems” with the common law invasion of privacy

theory. “First, the publicity given to private facts must be to the public

at large or to so many persons that the matter must be regarded as

substantially certain to become public knowledge.” Williams, 575 So. 2d

(Continued on following page)

R. App. 45

regard to pictures of a dead body can be presumed to know

that severe emotional distress will be inflicted thereby on

those who were closely related to the deceased, should

those survivors become aware of the tortfeasor’s behavior,”

the court held. Jd. at 693. Similar conclusions have been

reached in other cases.“ No case, however, has held that

the mere inspection and copying of autopsy records is an

invasion of a family’s privacy rights.

Another factor that the circuit court should have

considered in weighing the request for access was that

Earnhardt invited intense public scrutiny of every aspect

of his life through his decision to engage in a sport that is

extremely dangerous, that regularly results in the deaths

of drivers, that attracts millions of fans and television

viewers, and that makes millions of dollars for race organ-

izers, participants and sponsors. A family that has invited

so much public attention and that has benefited finan-

cially and otherwise by such extensive public attention

cannot have the same expectation of privacy as individuals

who have not engaged in such activities.”

at 689. “Second, an invasion of privacy action of the category here

involved can be brought only by a living person whose own privacy is

invaded.” Id.

* See, e.g., Armstrong v. H&C Communications, Inc., 575 So. 2d

280 (Fla. 5th DCA 1991) (holding that television stations could be held

liable for intentional infliction of emotional distress arising from the

broadcasting of videotape of skull of a child shown by medical exam-

iner).

* See generally Bartnicki v. Vopper, 121 S. Ct. 1753, 1765 (2001)

(“One of the costs associated with participation in public affairs is an

attendant loss of privacy”).

R. App. 46

The circuit court should have concluded that allowing

inspection and copying of the photographs is the least

intrusive means available to satisfy the request for access

because less intrusive means, such as the limited access

allowed to a court-appointed expert, cannot quell the

controversy surrounding Earnhardt’s death. The availabil-

ity of a written autopsy record cannot suffice because it

plainly does not contain all of the same information

available from photographs. Moreover, even if the photo-

graphs showed nothing more than the autopsy report,

access to the photographs still would be necessary to

confirm this. As shown in the record, autopsy reports often

are not accurate and inspection of photographs can dem-

onstrate this.”

The circuit court erred as a matter of law in holding

that Campus Communications had not shown good cause

for seeking inspection and copying of the photographs at

issue.

ITT.

Judgment Should Have Been Entered

Against the Earnhardts’ Disclosural Privacy Claim

If Chapter 2001-1 is held to be unconstitutional or if

the Court holds that Campus Communications was enti-

tled to access under Chapter 2001-1, the Court then

should consider the Earnhardt’s assertion that they have a

* At a minimum, the Court should reverse the trial court’s denial

of the motion for new trial that was based on the trial court’s exclusion

of news articles showing the relevance of the photographs to an

important public controversy.

R. App. 47

constitutional right that supersedes that statutory right of

access. The circuit court explicitly ruled against the

Earnhardts on this claim in its oral ruling and then in

favor of the Earnhardts in its written judgment. Because

of the circuit court’s vacillation on this issue, it ought not

afford any deference to the circuit court. The issue, in any

event, is a pure issue of law that may be considered de

novo.

The Earnhardts contended below that even if Florida

law required the medical examiner to allow public access

to the photographs, that they were entitled to enjoin

release of the photographs onthe basis of rights guaran-

tied them by (A) article I, section 23, Florida Constitution;

and (B) the Due Process Clauses of the Fifth and Four-

teenth Amendments of the United States Constitution.

Neither of these arguments has merit.

A. The State Constitutional Privacy Right Does

Not Limit the Public Records Law

The plaintiffs first cite article I, section 23 of the

Florida Constitution as authorizing the relief that they

request. Article I, section 23, which amended the Consti-

tution on November 4, 1980, provides: “Every natural

person has the right to be let alone and free from govern-

mental intrusion into the person’s private life except as

otherwise construed herein. This section shall not be

construed to limit the public’s right of access to public

records and meetings as provided by law.” (Emphasis

added). The second sentence of the section “was added to

prohibit use of the privacy amendment to impede public

R. App. 48

access to public information” “The legislature designed

the amendment to control the collection of information

rather than disclosure’™ Thus, “(aJlthough legislative

revision of [the Sunshine and Public Records Law] re-

mains possible, the courts are precluded from invalidating

or creating exceptions to these laws on the basis of” article

I, section 23.” In one of the early tests of article I, section

23, Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981), the

Fourth District Court of Appeal adhered to this view. “[Bly

its terms,” the Court held, “Article I, Section 23, does not

limit the public right of access to public records. Therefore,

adoption of Article I, Section 23, has no adverse effect on

Chapter 119, Florida Statutes.” The Florida Supreme

Court has repeatedly adhered to this view.” Therefore, it is

*” R. D. Woodson & Ricki L. Tanner, Federal Constitutional Privacy

& The Florida Public Records Law: Resolving the Conflict, 33 U. Fla. L.

Rev. 313, 337 (1980) (footnotes omitted) (citing Public Administration

Clearing Service, Proposed Amendments to Florida Constitution to be on

Ballot on October 7, 1980, & on November 4, 1980 Elections 17 (1980)).

* Td. at 337 (footnotes omitted).

* Joseph S. Jackson, Interpreting Florida’s New Constitutional

Right of Privacy, 33 U. Fla. L. Rev. 565, 580 (1981); see also Gerald B.

Cope, A Quick Look at Florida’s New Right of Privacy, 55 Fla. Bar J. 12,

12-13 (1980).

” See Post-Newsweek Stations, Fla., Inc. v. Doe, 612 So. 2d 549, 552

(Fla. 1992) (article I, section 23 “has not been interpreted to protect

names and addresses contained in public records”); Michel v. Douglas,

464 So. 2d 545 (Fla. 1985) (article I, section 23 could not be invoked by

employees of public hospital to block access to hospital personnel

records that were public records); Forsberg v. Hous. Auth. of City of

Miami, 455 So. 2d 373 (Fla. 1984) (public housing tenants had no right

to enjoin release of information provided by them to public housing

authority); see also Borges v. City of West Palm Beach, 858 F. Supp. 174,

178 (S.D. Fla. 1994) (recognizing that the Florida Supreme Court has

(Continued on following page)

R. App. 49

very clear that article I, section 23 provides no authority

whatsoever for the Earnhardts’ request for an injunction.

B. There is No Federal Constitutional Privacy

Right that Limits the Public Records Law

The Earnhardts also claimed below that they had a

federal constitutional right to block public and press

inspection of the photographs. They claimed that “right”

emanated from a trio of United States Supreme Court

decisions,” yet the Florida Supreme Court has held that

these cases do not create the claimed federal right. When

it first considered the assertion of such a right in Shevin v.

Byron, Harless, Schaffer & Associates, 379 So. 2d 633 (Fla.

1980), in an attempt to block press access to a consultant’s

files regarding applicants for a position with a municipal

utility, the Court held: “The Supreme Court may some day

breathe life into the privacy interest asserted by respon-

dents, but, until that occurs, we conclude that there does

not exist, under the facts of this case, a constitutionally

protected interest sufficient to prevent the public from

seeing the consultant’s papers.” Jd. at 638.

found that article I, section 23 cannot be construed to limit the Public

Records Law).

" Paul v. Davis, 424 U.3. 693 (1976) (rejecting claim that city and

county officials violated plaintiffs right of privacy by distributing flyers

identifying plaintiff as an active shop lifter); Whalen v. Roe, 429 U.S.

589 (1977) (rejecting a claim that disclosural privacy rights would be

violated by a centralized computer filing system for medical records

maintained by government agency); Nixon v. Adm’r of Gen. Servs., 433

U.S. 425 (1977) (rejecting a claim that archivists’ review of tapes made

during Nixon presidency to sort out personal matter would violate

Nixon’s right of privacy).

R. App. 50

The Florida Supreme Court subsequently rejected

assertions of the supposed federal “right” in a variety of

circumstances and in each case it has concluded that no

such federal right exists to block access to public records.”

The Supreme Court’s antipathy for the assertion of the

“right” to attempt to block or even slow access to public

records was made clear in Cannella. There, the Court

evaluated the constitutionality of a City of Tampa policy

that required the delay of the release of police personnel

files for three days pending notice to the affected em-

ployee. After the trial court upheld the policy, an en banc

decision of the Second District Court of Appeal held, 5 to 4,

that “government employee personnel files could be

automatically withheld for 48 hours, to allow employees

an opportunity to raise any claims that the information

should be withheld permanently because of privacy inter-

ests.” 458 So. 2d at 1076-77.

In the Florida Supreme Court, the City and the police

officers argued that this decision should be upheld because

“an automatic delay is necessary to allow the officers to be

present during the inspection of their records, and to allow

them to raise any constitutional claim that the records

should not be opened for inspection.” Jd. at 1076.

* See Michel, 464 So. 2d 545 (employees of public hospital had no

federal constitutional right to stop access to hospital personnel records

that were public records); Tribune Co. v. Cannella, 458 So. 2d 1075

(Fla. 1984) (police officers had no constitutional privacy right to delay

production of their personnel files); Forsberg, 455 So. 2d 373 (public

housing tenants had no right to enjoin release of information provided

by them to public housing authority).

R. App. 51

A unanimous Supreme Court rejected these argu-

ments, first observing that it previously had held in Wait

v. Florida Power & Light Co., 372 So. 2d 420 (Fla. 1979),

that “the only justification for withholding a record or a

portion thereof is the custodian’s assertion of a statutory

exemption.” Jd. at 1076. The Court then observed that to

agree with the City or the police officers “would cause us

to write into the statute something that is not there, and

this we decline to do.” Jd. “Delaying inspection to allow an

employee to be present during the inspection is not within

the legislative scheme. ... The employee’s presence could

serve no legally cognizable purpose, and any delay to allow

such presence is therefore inconsistent with the Act, which

contemplates only the reasonable custodial delay neces-

Sary to retrieve a record and review and excise exempt

material.” Id.

“As to the argument that an automatic delay is

necessary to allow an employee time to raise a constitu-

tional challenge,” the Court held, “we can only say that the

time when the record is requested is not the time to raise

such a challenge. ... The legislature has placed the books

on the table; only it has the power to alter that situation.”

Id. at 1078-79.

In Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985),

the Florida Supreme Court explicitly “found no state or

federal disclosural privacy right to exist.”

In the specific context of autopsy photographs and

videotapes, this Court has reviewed these directions from

the Florida Supreme Court and has held in Williams v,

City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991),

that “neither a custodian of records nor a person who is

the subject of a record can claim a constitutional right of

R. App. 52

privacy as a bar to requested inspection of a public record

in the hands of a government agency.”

That the federal disclosural privacy right does not

give individuals a right to enjoin the release of public

records even though persons who obtain the records might

use them to inflict emotional harm should not be surpris-

ing because recognition of such a right could result in a

torrent of claims against the government and would be

extremely difficult to define. Would such a right entitle

one to enjoin one agency from releasing to other agencies?

Would such a right entitle one to enjoin the government

from releasing the information to anyone other than one

who could demonstrate good cause for seeking the infor-

mation? Would tort law principles govern the extent of the

right so that one might be able to enjoin the government

from releasing information in a manner that would consti-

tute intentional infliction of emotional distress under state

tort law, but not other information? And, if that were the

case, wouldn’t the injunction sought have to be granted or

denied on the basis of the likelihood that the individual

seeking the records would disseminate the information in

such a fashion that the dissemination would result in the

intentional infliction of emotional distress? Would allowing

inspection of records by a reporter whose news organiza-

tion had a policy against publishing autopsy photos or

even supplying copies to such a reporter who is investigat-

ing a crime or an accident not rise to the level of a consti-

tutional violation, while release to other publishers would

rise to that level? Could the right to an injunction be

determined by the content of the requester’s publication

and, if so, would not such a determination violate the First

Amendment rights of the requester? And, how would the

right to disclosural privacy advocated by the plaintiffs in

R. App. 53

this case be meaningfully protected? Would they be enti-

tled to each request for a record? Would production of

records have to be delayed to allow the assertion of the

putative right? If not, would individuals have a right to

seek damages against the government for releasing

information that third parties used to inflict emotional

distress against them?

These are just some of the difficulties that would be

created by recognizing a federal disclosural privacy right

such as that advocated by the Earnhardts in this case. In

light of these practical problems as well as the decisions of

the Florida Supreme Court declining to recognize a federal

disclosural privacy right, this Court must reverse that

aspect of the circuit court judgment granting a permanent

injunction against the release of the records. It is plain

from the transcript of the proceedings that the trial judge

himself concluded that he should not enter the injunction

requested by the plaintiffs. Yet, the Earnhardts’ lawyers

gave him a proposed final judgment that induced him to

depart from his own oral ruling. That error should be

reversed.

Access to public records in the hands of public officials

such as the medical examiner is regulated entirely by

statute and no constitutional right exists to overcome that

statutory scheme.” “Florida’s definition of a public record

* Access to judicial records, by contrast, are not governed by

statute, but by common law principles that allow a balancing of

interests. See, e.g., Barron v. Florida Freedom Newspapers, Inc., 531 So.

2d 113 (Fla. 1988) (setting forth factors to be considered before closing

civil proceedings); Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla.

1982) (setting forth test for closure of criminal proceedings); State v.

Rolling, No. 91-382 CF A, 1994 WL 722891 (Fla. 8th Cir. July 27, 1994)

(Continued on following page)

R. App. 54

allows access by anyone, and permits exemptions only by

legislative amendment. The state courts have refused to

establish exemptions in light of the statute, and have not

determined that disclosural privacy is a legitimate consti-

tutional right which would override the state interest.”

CONCLUSION

The lawsuit filed by Teresa Earnhardt and joined by

some of her family members and Dale Earnhardt, Inc.

should have been dismissed. An order also should have

been entered on Campus Communications’ cross claim

requiring the defendant medical examiner to make the

records that are the subject of this lawsuit available for

inspection and copying. In the event that any person or

entity that inspects or copies the records uses the records

in a manner that is tortious under Florida law, the Earn-

hardts or any others injured by such uses may pursue

(allowing inspection but not copying of exhibits introduced in criminal

case). The records at issue here were not a part of any judicial proceed-

ing prior to the plaintiffs’ commencement of this lawsuit, therefore

these decisions have no application here.

“ Woodson & Tannen, supra at 334. Even if this Court were to

conclude that a federal disclosural right of privacy does exist and that it

requires the Court to balance the interests in public access against the

interests in privacy, see, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1132

(5th Cir. 1978) (balancing interests), it should hold that the balance

weighs in favor of allowing access, See Point II supra.

R. App. 55

claims for any damages that they suffer and for punitive

damages to deter such conduct in the future.

Respectfully submitted,

Hunton & Williams

Attorneys for Campus Communications,

Inc., publisher of The Independent

Florida Alligator

By /s/ Thomas R. Julin

Thomas R. Julin &

D. Patricia Wallace

Florida Bar Nos. 325376 &

0185930

Barclays Financial Center

1111 Brickell Avenue, Suite 2500

Miami, Florida 33131

305.810.2516 Fax 2460

tjulin or pwallace @hunton.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this

brief was mailed October 15, 2001, to:

Daniel D. Eckert

County Attorney

123 West Indiana Avenue

Deland, FL 32720-4613

- E. Thom Rumberger

Ernest Eubanks

Rumberger, Kirk & Caldwell, P.A.

Signature Plaza, Suite 300

201 South Orange Avenue

Post Office Box 1873

Orlando, FL 32802-7300

Telephone 407.872.7300

Telecopier 407.841.2133

R. App. 56

Parker D. Thomson

Carol A. Licko ;

1111 Brickell Avenue, Suite 1900

Miami, FL 33131

Dickson M. Lupo

Judson Graves

Alston & Bird

Bank of America Plaza

101 South Tryon Street, Suite 4000

Charlotte, NC 28280-4000

Jon L. Mills

P.O. Box 2099

Gainesville, FL 32602-2099

Richard J. Ovelmen

Jordan Burt LLP

777 Brickell Avenue, Suite 500

Miami, FL 33131-2803

Jonathan D. Kaney, Jr.

150 Magnolia Avenue

Daytona Beach, FL 32115

Michael Uribe

Post Office Box 0683

Deland, FL 32721-0683

Thomas E. Warner

Solicitor General

Office of the Solicitor General, The Capitol

Tallahassee, FL 32999-1050

/s/ Thomas R. Julin

Thomas R. Julin

R. App. 57

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the font

requirements of Florida Rule of Appellate Procedure

9.210(a)(2).

/s/ Thomas R. Julin

Thomas R. Julin

R. App. 58

IN THE

SUPREME COURT OF FLORIDA

Case No. SC02-1635

Lower Tribunal No. 5D01-2419

CAMPUS COMMUNICATIONS, INC.,

a Florida corporation, Petitioner,

vs.

TERESA EARNHARDT, THE ESTATE OF DALE

EARNHARDT, DALE EARNHARDT, JR., TAYLOR

EARNHARDT, DALE EARNHARDT, INCORPORATED,

COUNTY OF VOLUSIA, OFFICE OF THE MEDICAL

EXAMINER, THE STATE OF FLORIDA, and

MICHAEL URIBE, Respondents.

On Notice Invoking the Court’s Discretionary

Jurisdiction to Review Questions Certified

to be of Great Public Importance by the

Fifth District Court of Appeal

Petitioner’s Initial Brief

Thomas R. Julin & D. Patricia Wallace

Florida Bar Nos. 325376 & 0185930

Hunton & Williams

Attorneys for Campus Communications,

Inc., publisher of The Independent

Florida Alligator

Barclays Financial Center

1111 Brickell Avenue, Suite 2500

Miami, Florida 33131

305.810.2516 Fax-2460

tjulin or pwallace@hunton.com

R. App. 59

TABLE OF CONTENTS

BRRRPeee CE BITTEN AO oc cscassvesesseguvcssesovassesvsssvens ii

EXPLANATION OF REFERENCES ...................0060- ix

ula ad ke adcles uneiadiainconnsoniwieens 1

STATEMENT OF THE CASE AND THE FACTS..... 1

SUMMARY OF ARGUMENT ................ccccccesseeceeeeees 17

Thea dace cks dev baebenichabeeasesekisicubeveenpiauens 18

I. Section 406.135 is Unconstitutional............... 18

A. The Legislature Violated Article I, Sec-

tion 24 of the Florida Constitution by

Enacting Section 406.135 ...................e008 18

B. Section 406.135 May Not be Applied Ret-

sas cas cantulslindididbasnnesaeipinteeneienarens 31

II. Campus Communications Should Have Been

Granted Access Under Section 406.135.......... 43

III. Judgment Should Have Been Entered

Against the Earnhardts’ Disclosural Privacy

a iaiaachihia csr apideiahtbuiemssperinenpibedinenwnnss 48

A. The State Constitutional Privacy Right Does

Not Limit the Public Records Law .............. 48

B. There is No Federal Constitutional Pri-

vacy Right that Limits the Public Re-

a saunseubioeny 49

ais susapeneenensenaunsions 50

CRP POAT OF SERVICE........ccccesccccossccsccsscvevsess x

R. App. 60

Case No. SC02-1635

TABLE OF AUTHORITIES

Cases

Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000) ................ 32

Anderson v. Cryovac, 805 F.2d 1 (1st Cir. 1986)............... 39

Armstrong v. H&C Communications, Inc., 575

So. 2d 280 (Fla. 5th DCA 1991) ................ccccceeeeeeeees 39, 46

Arrow Air, Inc. v. Walsh, 645 So. 2d 422 (Fla. 1994)........ 36

Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla.

IIa icssidicinctascenendnnbens dacavuniebbeninaidenteinesneainmaiclammnniaieal 29

B.H. v. State, 645 So. 2d 987 (Fla. 1994)... eee 29

Bartnicki v. Vopper, 121 S. Ct. 1753 (2001) ....eseecesseeeeeees 47

Becker v. Adams, 181 A.2d 349 (N.J. 1962)............ cece eens 36

Booksmart Enterprises, Inc. v. Barnes & Noble

College Bookstores, Inc., 718 So. 2d 227 (Fla. 3d

SRE BOD s vevebncsenniciacentntd abies Onin annndemiann 40

Borges v. City of West Palm Beach, 858 F. Supp.

Be i Biceashssosnerelibiinensigesiaieaiatninceenmmaieneied 49

Bradford v. Suffolk County, 15 N.Y.S.2d 353 (N.Y.

App. Div. 1939), judgment affirmed as modified,

Se Fee Ee Ee 5 +. SND exstnsstasespessnavieresninsvinitaescnnsteinn 36

Brooks v. State, 26 FLW S208a (Fla. 1994)................. eee 22

Brown v. State, 358 So. 2d 16 (Fla. 1978).................cceeeeees 29

Bryan v. State, 753 So. 2d 1244 (Fla. 2000) ............ 2, 24-25

Campus Communications, Investment v. Earn-

hardt, 821 So. 2d 388 (Fla. 5th DCA

BE) cscneiccneres ed tabarie athdaars 16, 23-25, 27-28, 30-31, 36

Carroll v. State, 815 So. 2d 601 (Fla. 2002)... eee 23

R. App. 61

Church of Scientology Flag Service Organization v.

Office of the State Attorney of Pinellas County,

Florida, No. 00-4353-C1-13 (Fla. 6th Cir. July 5,

SIGTTD 11 vvinnsntnincevinetiuvntilavniienminiinistamgastadaalmanameaaaae 26

City of Orlando v. Desjardins, 493 So. 2d 1027 (Fla.

APIO «<scisncvnseicnscuneaapiiniaiteniadaaatninunadsiiiumnana mala 36, 43

City of Sanford v. McClelland, 163 So. 513 (1935)......37, 38

Division of Workers’ Compensation v. Brevada, 420

OO. BE GBT Cth. Let TA Tic cnecsceseccicccnersrretinactiucll 38

Floyd v. State, 808 So. 2d 175 (Fla. 2001) .............cccceeeeeee 23

Forsberg v. Housing Authority of City of Miami, 455

Sy SE Fe GI. Bi Pivccrtcnestitiasniinoscptesaeiolimauneunncanieall 49, 50

Good News Club v. Milford Central School, 121

As GR, SIRO SE vss ccvinsccinnessicessomaiiiensbcidaanadepadeiaicuieanataeaataaal 39

Grammer v. Roman, 174 So. 2d 443 (Fla. 2d DCA

Pa aa siihcnesesinanicicesonccetiiaesanaaieiagiinliaabibammin a aaaaiaiae cena nas 36

Gray v. Bryant, 125 So. 2d 846 (Fla. 1960) ....................... 34

Halifax Hospital Medical Center v. News-Journal

Corp., 724 So. 2d 567 (Fla. 1999)............. 2, 18, 19, 20, 31

Henderson v. State, 745 So. 2d 319 (Fla. 1999)................. 32

Hodges v. Snyder, 261 U.S. 600 (1928)..........cccccceeeseseeeeee 36

Holen v. Minneapolis-St. Paul Metropolitan Air-

ports Commission, 84 N.W.2d 282 (Minn. 1957)........... 36

Inman v. R.R. Commission, 478 S.W.2d 124 (Tex.

BD. TPTEEE caiccssinspssiiianitinniniicniaiiiaee anes 36

Jackson County v. Jackson Education Serv. Dis-

trict, 752 P.2d 1224 (Or. Ct. App. 1988) ..............cceeeeee 36

L.A. Police Department v. United Reporting Pub-

lishing Corp., 120 S. Ct. 483 (1999)..............ccccccsssssseees 39

Larkins v. State, 655 So. 2d 95 (Fla. 1995)..................00000. 23

R. App. 62

Legal Services Corp. v. Velazquez, 121 S. Ct. 1043

CBG DE) :scvcsctensonnseiseieninscinieimbeatioaaiieameaaaaasaamad: 39

Leuch v. Egelhoff 51 N.W.2d 7 (Wis. 1952) ...........ceseseeeeeee 36

Levine v. Kaplan, 687 So. 2d 863 (Fla. 5th DCA

RIPE) cnccinccncnecestssenadinersnasapibaiaiiaamaaaniamsaieaeaian 31

Lorei v. Smith, 464 So. 2d 1330 (Fla. 2d DCA 1985),

review denied, 475 So. 2d 695 (Fla. 1985)..................006 40

Mansfield v. State, 758 So. 2d 636 (Fla. 2000).................. 23

Memorial Hospital-West Volusia, Inc. v. News-

Journal Corp., 784 So. 2d 438 (Fla. 2001)......... 31, 32, 42

Mendley v. County of Los Angeles, 28 Cal. Rptr. 2d

SER iak. CC. AD. TOG) crcsessetsncecstiencisccmesssonminisgeuiven 36

Metropolitan Dade County v. Chase Federal Hous-

ing Corp., 737 So. 2d 494 (Fla. 1999)..........ccccccsssssssrsees 32

Michel v. Douglas, 464 So. 2d 545 (Fla. 1985)............. 49, 50

Monroe County v. Pigeon Key Historical Park, Inc.,

647 So. 2d 857 (Fla. 3d DCA 1967)............cccccccscceressseees 34

National Endowment for the Arts v. Finley, 118

BC, I Re cnccinsinisceuniacrsanreeesnatseitamstbiamaintieltenien 39

News-Press Publishing Co. v. Gadd, 388 So. 2d 276

CRN, BE Ta Se iteerrtarsscihedssianensivinenadiibiaine 40

Pennsylvania v. Wheeling & Belmont Bridge Co., 59

TAs EEE ED ninnsicsdicesagas dansantadecabiasncennisaveastenbceaalionn 36

Post-Newsweek Stations, Fla., Inc. v. Doe, 612

TO. BE OU Cr hs Be cesnescdaretencigtsemitiieninaas 49

Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996).....36, 43

Robinson v. City of Winfield, 219 P. 273 (Kan. 1923) ....... 36

Rosenberger v. Rector & Visitors of University of

Fh 5: SAR aes Bae ED taseessaiesecinentctiveeninionadssneienionn 39

R. App. 63

Shevin v. Byron, Harless, Schaffer, Reid & Associ-

ates, 379 So. 2d 633 (Fla. 1980)... cceeeeeeeeeee 42, 49, 50

Sims v. State, 754 So. 2d 657 (Fla. 2000) ........cccccccccsseeceee 29

Smith v. Coalition to Reduce Class Size, No. SC02-

1624, 2002 WL 31051569 (Fla. 2002) ..0..........ccceeeee. 18, 48

State Farm Mutual Automobile Insurance Co. v.

Laforet, 658 So. 2d 55 (Fla. 1995) .......cccccccssesesceeseceseees 36

State v. Atlantic Coast Line R.R., 56 Fla. 617, 47

ey Say SUITE nicasicnsdchnieicacteisdelealtsaasteetetvandtomastannacesioanecsaza’ 29

State v. Lavazzoli, 434 So. 2d 321 (Fla. 1983)........ccccc000--. 36

State Department of Transportation v. Knowles, 402

So. 2d 1155, 1158 (Fla. 1981)..............ccccccsscssssssossoesceeee 36

Staton v. Austin, 605 So. 2d 1266 (Fla. 1992)................... 40

Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA

SIT \huinsistdetasiettintiahousiscienstiainagichaeinanniesshiasdisbnasiiancimmmnsasad 40

Straight v. State, 397 So. 2d 903 (Fla. 1981)........ccccccceceee. 23

Tribune Co. v. Cannella, 458 So.2d 1075 (Fla.

rrr weisisindirsecsdinenninnstilesbabieienissnipihinaluaieemeatiaieaaees 32, 38, 50

United States v. Camacho, 22 Media L. Rep. (BNA)

Be RNAS Ws i ccrecsicennentdonracatarencetnacdanenenesettees 32, 33

Van de Kamp v. Gumbiner, 270 Cal. Rptr. 907 (Cal.

i Ee 36

Village of El Portal v. City of Miami Shores, 362

Be Ae GN I Onis ccrtisctestnstincnorseceninsaninasoabtaasenitennei 36

Williams v. City of Minneola, 575 So. 2d 683 (Fla.

IE Te citirsnecooonetinltancadlseuniecaniaataienmandadsouiend 39, 46, 50

Young v. State, 234 So. 2d 341 (Fla. 1970) .......cccccccccccceceee 23

~~rntinineeneeesee

R. App. 64

Yow v. Tishomingo County School Board, 172 So.

ITT D serickdcensinissenetincenniestenininaiinidddpnemmaennncnnteel 36

Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th

Be AIIIEIE saissnctapenicndanececdensehniehdenamentenninamnensavenaninintobiinniial 34

Constitutional Provisions, Statutes & Rules

Fla. Const. art. I, sec. 23

Fla. Const. art. I, sec. 24(c)

Pin. Dab § 119.07(}).....0...roseccerseveseesevsevevsoreecssenssnsoocsocaseosens 43

SN Ais tir LAINIE hie cineicancseestsadessiideuehnbapinesencnibaiamnieiadiin passim

ee ee TTT 17

ic ila MING Os NIE a casseusnivinemnnceceicnisnihcaininsesaimicenannesicneite 17

Other Authorities

Gerald B. Cope, A Quick Look at Florida’s New

Right of Privacy, 55 Fla. Bar J. 12, 12-13 (1980) .......... 49

Joseph S. Jackson, Interpreting Florida’s New

Constitutional Right of Privacy, 33 U. Fla. L.

ls ees Me I ctaiscieanscinsphictecicnssiinnhiitenihstehaenlanisacbeebinii 49

Public Administration Clearing Service, Proposed

Amendments to Florida Constitution to be on

Ballot on October 7, 1980, & on November 4,

FOG Teta TT CIEBG) cciececcccccsecesesesecessvesvenesessonees 48, 49

R.D. Woodson & Ricki L. Tannen, Federal Constitu-

tional Privacy & The Florida Public Records

Law: Resolving the Conflict, 33 U. Fla. L. Rev.

SED, Be CeO eitevncesvesncerseeseseensenenepessrensonanennavestensensoinees 48

“NASCAR idles while drivers die,” Orlando Senti-

TOE GEG. 3g SED crvsessereevccsnnvsitimeninaranssnvenesintatonennonensions 10

R. App. 65

“Safety slow to arrive despite race carnage,” Or-

lando Sentinel (Feb. 13, 2001) ...........cccccccecssssccceeee deci 10

“NASCAR drivers want own medical staff,” Or-

lando Sentinel (Feb. 13, 2001) ............ccccccccececssccceseseceeee 10

“NASCAR disputes Earnhardt story,” San Diego

Union-Tribune (April 30, 2001) ........c.ccceescccessecesseeseees 13

“Earnhardt’s son still believes seat belt broke,”

Wisconsin State Journal (May 1, 2001)............ccccceccceeee 13

“Woman’s comments help Earnhardt seatbelt

debate intensify,” The Dallas Morning News

BE ARNE renee oon, SER NA Ear rR 13

“NASCAR knows the truth behind death,” MSNBC

Re newer Lge TT eT Ne Se ENT 13

“Earnhardt Jr. confident in NASCAR’s probe,” USA

gg _, 5 SE RRIRIR ten ree RIVE ORR 13

“NASCAR's credibility is being shredded by ‘Bel-

gate,’” NASCAR Scene Plus (May 38, 2001) ..............0.... 13

“Simpson Seeks Public Apology,” http://espn.go.com/

rpm/we/2002/0211/1327350.html (Feb. 12, 2002) ......... 41

“Seat Belt Maker Files Suit Against NASCAR —-

Simpson Says He Was Unfairly Blamed in Earn-

hardt’s Death,” http://www.click2houston.com/sh/

sports/nascar/stories/nascar-12334520020213-

110205. html (Feb. 13, 2002) ...............cscssssssssssssessscscceess 41

R. App. 66

EXPLANATION OF REFERENCES

Citations in this brief are to the record compiled in

tale circuit court and filed in the Fifth District Court of

Appeal. The notation (““R. __-___ Ex. or 4__.”) refers to

the volume number — page number, and then, when

appropriate, to exhibits or paragraphs of the referenced

document. The transcript of the trial below are volumes 17

through 21 of the record. The record is consecutively

numbered through the first 16 volumes and then number-

ing begins again in volume 17.

INTRODUCTION

The Fifth District Court of Appeal’s decision below

affirmed the trial court’s judgment denying the petitioner,

Campus Communications, Inc., publisher of The Inde-

pendent Florida Alligator, access to public records on the

basis of a sweeping Public Records Law exemption rushed

through the Florida Legislature specifically to prevent

access to both the requested records — the autopsy photo-

graphs of Dale Earnhardt — and to bar access to all other

autopsy photographs held by medical examiners through-

out the State of Florida. The exemption is so broad that it

includes not only photographs of recently deceased indi-

viduals who have living relatives, but also photographs of

individuals who have been deceased for decades and who

have no living relatives. Autopsy photographs historically

had been open and available for inspection and copying

and frequently had been used by journalists, researchers,

and others to find and report information important to

human safety — including in some instances information

showing that an autopsy report did, not correctly reflect

the cause of death. Few ever used that valuable openness

R. App. 67

to cause unjustifiable harm. When they did, tort law

compensated the injured and punished the wrongdoers.

The new exemption at issue here, chapter 2001-1,

Laws of Florida, codified as section 406.135, Florida

Statutes (2001), destroyed that historical balance and

violated the constitutional mandate of article I. section

24(c) of the Florida Constitution, that a new public record

exemption cannot be created unless a public necessity for

the exemption is stated with specificity and the exemption

is no broader than necessary to accomplish the stated

purpose of the law. This Court first applied this standard

in Halifax Hospital Medical Center v. News-Journal Corp.,

724 So. 2d 567, 569 (Fla. 1999), invalidating an exemption

that, as here, applied both to records that would serve the

purpose of the exemption (allowing public hospitals to

compete fairly with private hospitals), and those that

would not. The inclusion of the latter rendered the entire

exemption void and required release of the records at issue

even though the release of the records at issue defeated

the legislative purpose in its entirety and made competi-

tion for public hospitals difficult. That decision required

the Legislature to go back to the drawing board and to

craft an appropriately narrow exemption.

The Fifth District Court of Appeal did not make any

attempt to distinguish the overbreadth of the exemption at

issue in Halifax from the overbreadth of the exemption at

issue here. Instead, it found the exernption here for all

autopsy photographs to be analogous to the narrow ex-

emption at issue in Bryan v. State, 753 So. 2d 1244 (Fla.

2000), for Department of Corrections information “ ‘which

if released would jeopardize a person's safety.’” Id. (quot-

ing Fla. Stat. § 945.10(1)(e) (1999)) (emphasis added). The

exemption here could not be more different than the

R. App. 68

exemption in Bryan because the exemption here is not

limited to those photographs which if released would cause

harm, but rather sweeps within it all photographs includ-

ing those that plainly would do no harm if released. The

Fifth District’s decision should be reversed on that basis.

Alternatively, the decision should be reversed because the

Legislature may not destroy substantive vested rights

through retroactive legislation. Once a record has been

requested, the right to the record is an immediate, fixed

right of present enjoyment. To hold otherwise would

destroy the operation of the Public Records Law.

Even, however, if the constitutionality of the exemp-

tion is upheld, the Court should vacate the Fifth District’s

decision because Campus Communications demonstrated

good cause under an exception to the exemption created by

section 406.135, Florida Statutes (2001), for obtaining

access to the records.

Finally, neither the Florida nor the United States

Constitution guaranty anyone the right to stop a public

official from complying with the Public Records Law, as

was contended by some of the respondents.

STATEMENT OF THE CASE AND THE FACTS

Dale Earnhardt died in a crash in the final lap of the

Daytona 500 on Sunday, February 18, 2001. (R.9-1670-

1696 475). In accordance with chapter 406, Florida

Statutes, an agent of the medical examiner of the Seventh

District in and for Volusia County, Florida, conducted an

autopsy on Earnhardt on Monday, February 19, 2001.

(R.9-1670-1696 J 92).

R. App. 69

Teresa Earnhardt commenced this action on Thurs-

day, February 22, 2001, seeking a temporary and perma-

nent injunction to stop Thomas Beaver, the medical

examiner for Volusia County, Florida, from making photo-

graphs of the autopsy available to the public and the

press. (R.2-290-301). The Court entered an ex parte

temporary injunction on the date that the lawsuit was

filed. (R.2-302-04).

After the Orlando Sentinel appeared in the action on

March 2, 2001, to oppose sealing of the records (R.2-315-

17, 3-550-56), and other members of the Earnhardt family

and Dale Earnhardt, Inc. appeared to support sealing the

records (R.2-347-49), the Court referred the matter to

mediation. (R.4-750-51).

As the mediation was coming to a conclusion on

March 16, 2001, Campus Communications, Inc., publisher

of The Independent Florida Alligator, a newspaper in

Gainesville, Florida, submitted a motion to intervene to

seek dissolution of the temporary injunction and dismissal

of or summary judgment against the complaint. The

motion alleged that Campus Communications had asked

that it be allowed to inspect and copy the autopsy photo-

graphs and that the medical examiner had not complied

with the request. (R.5-771-803). Campus Communications

had not participated in the mediation.

On that same day, March 16, 2001, the parties who

had participated in the settlement — the Sentinel, addi-

tional intervening members of the press (R.4-755-58), the

medical examiner, and the Earnhardts — announced that

they had reached an agreement whereby the mediator

would appoint an independent expert to review the photo-

graphs and audiotepes and would report his findings.

R. App. 70

(R.5-766-69). The agreement further provided that after

the appointed expert examined the materials at issue they

would be permanently sealed. (R.5-766-69).

The circuit court approved the settlement on March

19, 2001. (R.5-770).

Ten days later, on March 29, 2001, the Florida Legis-

lature amended the Public Records Law through Chapter

2001-1, Laws of Florida, to create an exemption to the

Public Records Law for autopsy photographs.

On April 3, 2001, Campus Communications filed

supplemental materials in support of its motion to inter-

vene showing that autopsy photographs historically have

played a critical role in press reports about murders,

medical malpractice, prison deaths and numerous other

public controversies. (R.7-1163-1311). In some instances,

the press had found that medical examiners themselves

had made serious errors in determining the cause of death

or have themselves engaged in wrongdoing or questionable

practices. (R.7-1163-1311 Exs. 5-7, 9-10, 13, 15-17, 19, 22-

51). The supplemental materials also demonstrated that

the cause of Earnhardt’s death had become a public

controversy and that the photographs sought were rele-

vant to that controversy. (R.7-1163-11 Exs. 2, 4 & 8).

On April 5, 2001, the circuit court granted Campus

Communications’ motion to intervene. (R.7-1334). On April

16, 2001, Campus Communications filed a cross-claim

against the medical examiner seeking an order under the

Public Records Law requiring him to allow inspection and

copying-of the Earnhardt autopsy photographs. (R.8-1359-

75). The claim asserted that Chapter 2001-1 could not be

applied retroactively to this case and, in any event, that

R. App. 71

the exemption was broader than necessary to serve the

purpose for which it had been enacted.

The State of Florida intervened to defend the constitu-

tionality of Chapter 2001-1. (R.8-1376-79).

The medical examiner answered Campus Communi-

cations’ complaint on May 2, 2001, admitting that the

records sought by Campus Communications were public

records and that they were not exempt from the disclosure

requirements of that law at the time that they had been

requested, but asserting that he had been prevented from

allowing access to the records by the temporary injunction

that had been entered by the circuit court. (R.8-1415-17).

The State answered the complaint on May 9, 2001,

asserting that the Chapter 2001-1 was constitutional.

(R.8-1452-54). The State took no position regarding the

constitutionality of the Public Records Law prior to its

amendment even though the Earnhardts contended in

their complaint that the law invaded their state and

federal constitutional rights.

During the first day of the bench trial on June 11,

2001, the Court heard testimony from Thomas Beaver, the

Volusia County medical examiner. He testified that “it’s

important that we, as a society, know why people die,

because ... it helps us to identify risks to the society as a

whole.” (R.18-200). He testified that historically his office

had treated autopsy reports, including autopsy photo-

graphs, as public records and had released the reports and

photographs upon the request of any member of the public

for inspection and copying. (R.18-202 & R.9-1670-96 q 35).

R. App. 72

He testified that he did not follow that practice in this

case because of the temporary injunction entered by the

circuit court. (R.18-223).

In admissions filed with the court, Dr. Beaver also

testified that as medical examiner for the Seventh Dis-

trict, he is responsible for investigating all deaths result-

ing from homicide, accidents or in sudden unexpected

circumstances, that he oversees about 650 autopsies

annually, and that his office has a staff of approximately

11 and an annual budget of approximately $1.1 million.

(R.9-1670-96 VJ 27, 28 & 32).

Prior to this lawsuit, when a member of the public had

asked to inspect or copy the autopsy records relating to a

specific deceased person, that member of the public would

be allowed to inspect and copy all autopsy records relating

to the deceased person, including autopsy photographs,

videotapes, and audiotapes. (R.9-1670-96 7 38). More than

50 members of the public had inspected and copied au-

topsy records maintained by Beaver within the 12-month

period preceding February 22, 2001. (R.9-1670-96 9J 39 &

40). Beaver did not have a policy of requiring notification

of relatives of a deceased person before allowing such

access (R.9-1670-96 J 41) and rarely was such notification

given. (R.9-1670-96 { 42).

Prior to this litigation, individuals who had copied

autopsy photographs had not used them for harmful

purposes (R.9-1670-96 9 43) and no one had ever asked

Beaver to deny members of the public the opportunity to

inspect or copy autopsy photographs, videotapes, or

audiotapes of a deceased person. (R.9-1670-96 ¥ 44).

Individuals who previously had asked for and ob-

tained access to autopsy photographs included reporters,

R. App. 73

privately-employed medical doctors, privately-employed

pathologists, privately-employed investigators, educators,

medical researchers, sociologists, and acquaintances and

relatives of the deceased (R.9-1670-96 7 45) and these

individuals sometimes expressed disagreement with the

conclusions of the medical examiner regarding the cause of

death after they reviewed the photographs. (R.9-1670-96

q 48). Beaver himself had worked as a consultant in civil

and criminal litigation and found it essential to review any

autopsy photographs for that purpose. “[T]he first thing I

ask the attorney for are the pictures,” he testified. (R.18-

235).

Medical examiners are not the only public officials

who take photographs of deceased persons, according to

Beaver. Photographs of the deceased are also taken by law

enforcement officials in some cases (R.9-1670-96 53),

although that was not done in the instant case. Those

photographs are not kept in the custody of the medical

examiner, they are kept by law enforcement agencies. (R.9-

1670-96 { 54).

Medical examiners also sometimes take photographs

of deceased persons other than autopsy photographs. For

example, they take photographs at the scene of an acci-

dent or before an autopsy is commenced. (R.9-1670-96

q 55, 56 & 58). Such photographs are not autopsy photo-

graphs. (R.9-1670-96 59).

Autopsy photographs historically have been used for a

wide variety of purposes. Beaver himself has given lec-

tures on autopsies or autopsy investigations (R.9-1670-96

4 64) and he has displayed photographs of autopsies for

educational or training purposes to law enforcement

R. App. 74

officials, medical students, physicians, forensic patholo-

gists, paramedics, and nurses. (R.9-1670-96 7 65). He also

has shown autopsy photographs to other medical examin-

ers or pathologists for the purpose of seeking a second

opinion (R.9-1670-96 66) and to consultants for the

purpose of seeking an expert opinion. (R.9-1670-96 { 67).

In addition to providing the Court with background

regarding the historical treatment and use of autopsy

photographs, Beaver also explained the events leading up

to this litigation. In his admissions, he acknowledged that

in the week before Earnhardt died, the Orlando Sentinel

had published a series of investigative news reports that

were highly critical of the National Association for Stock

Car Auto Racing, Inc. (“NASCAR”), sponsor of the Daytona

500, for failing to require head and neck restraint systems

that could prevent basilar skull injuries in high speed

crashes. The articles pointed out that three NASCAR

drivers had died in NASCAR races in the previous nine

months of head and neck injuries. The articles reported

that other racing organizations had required the use of

head and neck restraint systems to prevent such injuries.’

Immediately after Earnhardt’s death on February 18,

2001, Dr. Steve Bohannon, director of emergency medical

services for the International Speedway Corporation,

reported to the press that Earnhardt had died of a basilar

' Specifically, on February 11, 2001, the Orlando Sentinel pub-

lished an article entitled “NASCAR idles while drivers die.” (R.9-1670-

96 47 68 & 69 and attachments). On February 13, 2001, the Orlando

Sentinel published an article entitled “Safety slow to arrive despite race

carnage.” The same day, the Orlando Sentinel published an article

entitled “NASCAR drivers want own medical staff.” (R.9-1670-96 { 70).

R. App. 75

skull injury — precisely the same type of injury that had

killed the three NASCAR drivers that had been the

subject of the Orlando Sentinel’s critical reports. (R.19-

354). Bohannon reiterated his conclusion at a press con-

ference the following day. (R.19-354). To confirm

Bohannon’s conclusions, reporters requested records from

the medical examiner concerning the autopsy of Earn-

hardt. (R.9-1670-96 J 104). They did not initially, however,

request photographs of the autopsy. (R.9-1670-96 J 105).

On Wednesday, February 21, 2001, Bohannon asked

the medical examiner’s staff to allow him to inspect the

photographs of the autopsy of Dale Earnhardt. (R.9-1670-

96 7 117) (R.19-353, 361). The medical examiner, consis-

tent with his prior practices, did not advise any relatives

of Earnhardt of this request (R.9-1670-96 9118) and

allowed Bohannon’s inspection to go forward. (R.9-1670-96

J 119-121). Bohannon testified he was unable to determine

from his inspection of the photographs whether Earn-

hardt’s fatal injury had been caused by inertial headwhip-

ping that could have been stopped by a head and neck

restraint, seat belt failure, or some other cause. (R.19-

365). ;

After examining the photographs that day, Bohannon

reported the results of his inspection to Mike Helton, the

president of NASCAR. (R.19-366). Helton told Bohannon

that Earnhardt’s seatbelt had failed. (R.19-365-66).

On Thursday, February 22, 2001, Teresa Earnhardt

filed this lawsuit against the medical examiner (R.9-1670-

96 J 127) even though no reporter had requested access to

or copies of photographs of the body of Dale Earnhardt

during or before the autopsy. (R.9-1670-96 7 128). On the

R. App. 76

same day that the suit was filed, without holding a hear-

ing, the circuit court entered a temporary injunction

prohibiting release of the photographs. (R.19-302-04).

On Friday, February 23, 2001, NASCAR, sponsor of

the Daytona 500, held a press conference in Rockingham,

North Carolina, at which they announced that Earnhardt’s

seat belt had failed and that they did not know why. (R.9-

1670-96 7 130) (R.19-369). Bohannon attended the press

conference and expressed the opinion that the failure of

the seat belt could have been the mechanism that caused

the injury that caused Earnhardt’s death. (R.19-369).

After the NASCAR press conference of February 23,

2001, reporters for the first time requested access to

photographs of the Dale Earnhardt autopsy. (R.9-1670-96

q{ 132). The autopsy photographs would show the cause of

Dale Earnhardt’s death. (R.9-1670-96 { 137). The media-

tion ordered by the circuit court between the Earnhardts,

the Orlando Sentinel and other media (not including

Campus Communications) resulted in an agreement

between the mediating parties (R.5-766-69) that the

mediator would appoint an independent expert to examine

the photographs for no more than 30 minutes and then

issue a report concerning the cause of Earnhardt’s death.

Pursuant to the agreement, the report would be filed with

the Court and the photographs then would be “totally and

permanently sealed in the most secure manner possible.”

(R.5-768).

On or about March 26, 2001, Dr. Barry Myers re-

viewed the autopsy of Dale Earnhardt, including the

photographs of the autopsy. (R.9-1670-1696 4 138). He

then issued a report on April 9, 2001, expressing his

R. App. 77

opinions regarding the cause of Earnhardt’s death. (R.7-

1345-58). La ta

The Myers’ report did not, however, put an end to the

controversy concerning either the cause of Earnhardt’s

death or whether NASCAR had tried to deflect criticism of

its safety requirements by falsely claiming that Earn-

hardt’s seat belt failed. Instead, with the photographs still

under seal, the report simply fueled further debate in the

national press.” (R.12-1941-82 Exs. 62-77 & 2395-2404).

At the conclusion of the first day of the trial, the

circuit court announced that he had found “that the

legislative enactment of Chapter 2001-1 was a valid and

constitutional exercise of legislative authority, pursuant to

Article 1, Section 24, of the Florida Constitution.” (R.18-

281). The trial court then invited Campus Communica-

tions to attempt to show that it had “good cause” for

obtaining access to the photographs pursuant to the

standards set forth in Chapter 2001-1. (R.18-281).

In response, Campus Communications offered testi-

mony of Daytona Beach Police Department Sgt. Thomas

Youngman, a police photographer (R.19-323-51), Dr. Steve

* For example, on April 30, 2001, the San Diego Union-Tribune

reported: “NASCAR disputes Earnhardt story.” On May 1, 2001, the

Wisconsin State Journal reported: “Earnhardt’s son still believes seat

belt broke.” Also on the same day, The Dallas Morning News reported:

“Woman’s comments help Earnhardt seatbelt debate intensify.” The

following day, May 2, 2001, MSNBC headlined a report: “NASCAR

knows the truth behind death.” A day after that, May 3, 2001, USA

Today reported: “Earnhardt Jr. confident in NASCAR’s probe.” Also on

that day, NASCAR Scene Plus reported: “NASCAR's credibility is being

shredded by ‘Beltgate.’” (R. 12-1941-82 Exs. 62, 63, 64, 65, 66, 68 & 69).

R. App. 78

Bohannon (R.19-352-99), and Teresa Earnhardt (R.20-406-

82). Collectively, this testimony showed that the Earn-

hardt autopsy photographs already had been made avail-

able to Bohannon and to Myers, that access to the

photographs was relevant and important to resolution of

the controversy concerning Earnhardt’s death and NAS-

CAR’s safety requirements, and that while Mrs. Earnhardt

asserted that she would be distressed by anyone having

any access to the photographs, that access would not in

fact injure her or others.

Campus Communications urged the Court to consider

the numerous news reports showing the controversy that

existed regarding the cause of Earnhardt’s death and

NASCAR’s assertion that Earnhardt’s seat belt f* iiure,

rather than its lack of safety requirements, ha? caused

Earnhardt’s death. (R.20-478-81). The circuit court again

declined to consider the news reports and excluded them

from evidence. (R.20-482).

The circuit court then heard, over a relevance objec-

tion by Campus Communications (R.20-482-83), testimony

from Michelle Bonnett and Beacher Orr, relatives of two

NASCAR drivers who also had been killed in crashes at

the Daytona International Speedway. (R.20-488-531).

After lengthy closing arguments (R.21-556-732), the

trial judge orally announced a ruling that even though

Campus Communications had asked for access to the

photographs on March 16, 2001, and the Legislature had

not created an exemption for the photographs until March

29, 2001, Campus Communications had no right of access

to the photographs other than that provided under the

amended law and that Campus Communications had not

R. App. 79

shown that it was entitled to access under the amended

law. (R.21-735-40).

The trial judge found that any bearing that the

photographs might have on NASCAR’s safety require-

ments was irrelevant because “that’s a private matter that

does not involve the Government at all.” (R.21-737). He

acknowledged that review of the photographs might show

that the medical examiner’s “office procedures . . . could be

different ... [aJnd the investigation by the Daytona Beach

Police Department” might have been conducted differently

but “these are incredibly thin excuses to invade the serious

privacy rights of the family.” (R.21-738).

The trial judge also rejected the Earnhardts’ assertion

that they had any state or federal constitutional right to

require the sealing of the photographs. “Judgment shall be

entered in favor of Campus Communication, Inc. . . . on

the action pursuant to Article I, Section 23 of the Florida

Constitution and the 14th Amendment to the United

States Constitution. The temporary injunction shall be

dissolved.” (R.21-741).

Counsel for the Earnhardts then submitted a

proposed final judgment that, contrary to the circuit

court’s oral ruling, net only dismissed Campus

Communications’ complaint seeking access to the records,

but also entered a permanent injunction sealing the

records. Campus Communications objected to the proposed

final judgment. (R.15-2432-68). The trial judge

nevertheless entered the judgment in the form submitted

by the Earnhardts’ counsel (R.15-2469-81), contradicting

his own oral ruling.

Campus Communications moved for a new trial based

on the trial judge’s exclusion of news reports showing that

R. App. 80

the records sought were relevant to an important public

controversy’ (R.15-2486-91). The trial judge denied that

emotion. (R.15-2492).

Thereafter, Campus Communications timely appealed

the final judgment. (R.16-2493).

The Fifth District affirmed the trial court’s decision,

finding that the Legislature is free to make any exemption

to the Public Records Law retroactive and that the exemp-

tion is not broader than necessary because autopsy photo-

graphs is a narrow class of records. Campus Communi-

cations, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA

2002). The Fifth District also certified that the constitu-

_tionality and retroactivity of section 406.135 as questions

of great public importance. This Court has jurisdiction to

review the Fifth District’s decision pursuant to article V,

sections 3(b)(3) (decisions expressly declaring a state

statute valid and expressly and directly conflicting with a

decision of this Court (Halifax)) and 3(b)(4) (decisions

certified as passing upon a question of great public impor-

tance), as well as Florida Rules of Appellate Procedure

9.030(a)(2)(A)(ii) & 9.030(a)(2)(A)(v).

SUMMARY OF ARGUMENT

Point I — Section 406.135 is Unconstitutional. Section

406.135 is unconstitutional for two reasons: (A) it violates

article I, section 24(c) of the Florida Constitution because

* The excluded news reports are in the record at R.5-934-61 and

R.12-941-82.

-

R. App. 81

it is broader than necessary to serve a specifically stated

public necessity; and (B) it violates due process by retroac-

tively destroying the right that Campus Communications

had to inspect and copy the records at issue at the time

that it made its request.

Point II - Campus Communications Demonstrated

Good Cause. Campus Communications demonstrated good

cause for access: the photographs could show that Earn-

hardt did not die as a consequence of the failure of his seat

belt, as claimed by NASCAR, but rather from the lack of a

head and neck restraint. That would be relevant to a

determination of whether NASCAR interfered with law

enforcement investigations of the cause of Earnhardt’s

death to deflect public and press criticism for its failure to

require drivers to use head and neck restraints.

Point III - The Plaintiffs Have No Constitutional

Right to Block Compliance with the Public Records Law.

This Court has repeatedly held that there is no state or

federal constitutional right that allows individuals to seek

injunctions against public officials to stop them from

complying with a requirement of the Public Records Law.

For that reason, the trial court’s oral ruling rejecting the

Earnhardt’s request for a permanent injunction was

correct and the written final judgment granting the

permanent injunction should be reversed.

ARGUMENT

‘

Section 406.135 is Unconstitutional

Section 406.135 is facially unconstitutional in two

respects. This is a pure question of law that is reviewable

R. App. 82

de novo. See Smith v. Coalition te Reduce Class Size, No.

SC02-1624, 2002 WL 31051569 at *4 n.3 (Fla. 2002).

A. The Legislature Violated Article 1, Section 24 of

the Florida Constitution by Enacting Section

406.135

The Florida Legislature violated article I, section 24(c)

of the Florida Constitution when it adopted chapter 2001-1

in that the Legislature did not state with specificity the

public necessity for the law and the law is broader than

necessary to accomplish the stated purpose of the law.

Article I, section 24 (c) states that to enact an exemption

to the disclosure requirements of article I, section 24(a),

the Legislature first must “state with specificity the public

necessity justifying the exemption” and then must tailor

the exemption so that it is “no broader than necessary to

accomplish the stated purpose of the law.”

This Court first applied this constitutional provision,

in Halifax Hospital Medical Center v. News-Journal Corp.,

724 So. 2d 567, 569 (Fla. 1999). In that case, the circuit

court invalidated an exemption created for “written

strategic plans” of public hospitals. Circuit Judge John V.

Doyle held: :

The evidence in this case thus showed and the

Court finds that not all aspects of written strate-

gic plans are critical and confidential... . By cre-

ating an exemption for any and all discussion of

the strategic plan, the legislature has created a

categorical exemption which reaches far more in-

formation than necessary to accomplish the pur-

pose of the exemption. All discussion of strategic

plans is made secret solely to protect that part of

R. App. 83

the discussion which pertains to critical confi-

dential information. This is facial overbreadth.

Id. at 570 (quoting the final judgment). The defendant had

asked the circuit court to narrow the exemption by defin-

ing what constitutes “written strategic plans,” but the

circuit court declined that request, holding that “such a

finding is fundamentally legislative rather than judicial.”

Id. at 569.

The Fifth District Court of Appeal affirmed, agreeing

that not all aspects of written strategic plans are critical

and confidential and that it should not attempt to save the

statute by a narrowing judicial construction. Jd. The Court

held the statutory exemption “overbroad on its face.”

This Court agreed, holding “the statutory exemption

does not meet the exacting constitutional standard of

article 1, section 24(c), of specificity as to stated public

necessity and limited breadth to accomplish that purpose

and is therefore facially unconstitutional.” Id.

In response to the defendant’s request for a judicial

narrowing of the exemption to save it, the Court acknowl-

edged a statute should be construed so as not to conflict ©

with the constitution, but held that “a court’s discretion to

adopt a narrowing construction should be exercised with

restraint.” Id. at 570. The Court held, “we find in this case

that we cannot move into the legislature’s province by .

making the factual determination that would bring this

statutory exemption within constitutional boundaries. A

court may not have the fact-finding machinery to enable it

to authoritatively construe a statute and supply a saving

construction.” Jd.

R. App. 84

The Court observed: “In this case, we do not have

before us the relevant information to define ‘critical

confidential information’ or ‘strategic plans’ for which

disclosure would harm the business interests of the

hospital. Moreover, in enacting exemptions to Florida’s

public disclosure laws, the legislature has an express

constitutional obligation to tailor such an exemption so

that it is no broader than necessary to accomplish the

exemption’s stated purpose. Thus, the task of enacting a

more limited statutory exemption appropriately belongs to

the legislature in this case.” Jd.

In applying article 1, section 24(c) and the holding of

the Halifax case to this case, this Court must first exam-

ine the articulated “public necessity” that justifies enact-

ment of the exemption. This articulation is found in

section 2 of Chapter 2001-1. It begins not with a statement

of the public necessity for the exemption but rather with

the conclusion that “it is a public necessity” to exempt the

records covered by the exemption. That first sentence is

not helpful here because it does nothing to inform the

Court about the purpose of the exemption.

Section 2 next states that “photographs or video or

audio recordings of an autopsy depict or describe the

deceased in graphic and often disturbing fashion.” (Em-

phasis added). It further states “Such photographs or

video or audio recordings may depict or describe the

deceased nude, bruised, bloodied, broken, with bullet or

other wounds, cut open, dismembered, or decapitated.”

(Emphasis added). It then concludes that “As such, photo-

graphs or video or audio recordings of an autopsy are

highly sensitive depictions or descriptions of the deceased

which, if heard, viewed, copied or publicized, could result

in trauma, sorrow, humiliation, or emotional injury to the

. 2 ee a

R. App. 85

immediate family of the deceased, as well as injury to the

memory of the deceased.” Each of these sentences reflects

that the Legislature regarded section 406.135 as necessary

because access to the materials at issue could, in some

circumstances, inflict emotional injury on the immediate

family of the subject of those materials.

In choosing the ward “often” rather than “always,” the

word “may” rather than “do,” and the word “could” rather

than “will” or “would,” the Legislature explicitly acknowl-

edged that the viewing, copying or publicizing of photo-

graphs does not always result in trauma, sorrow,

humiliation, or emotional injury.‘ The exemption therefore

is overbroad on its face in the same way that the exemp-

tion in Halifax was overbroad on its face. The Legislature

* The Legislature not only has acknowledged through its choice of

words that access to autopsy photographs, videotapes, and audiotapes

will not always inflict emotional harm on someone, it also has acknowl-

edged that in some circumstances the value of unfettered access to such

materials will outweigh any risk that emotional harm will be inflicted

by the access. It does this by stating “a surviving spouse may view and

copy a photograph or video 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.” The Legislature may have included this provision

because spouses, parents and children often will have a need for such

records for insurance and estates purposes. That obviously would not

always be the case. In some instances, an individual who is within the

exemption — for example, an estranged spouse, parent, or child — might

well be the one individual who is most likely to misuse the materials to

inflict emotional harm on others. In other cases, persons other than

those listed in the statute — such as non-spousal life partners or non-

familial beneficiaries — will have an equally strong, if not greater,

interest in access to the records. In its failure to allow these individuals

the unfettered access that will be enjoyed by others, the statute is

overly broad and in violation of article I, section 24(c).

ee

R. App. 86

simply has exempted more records than are necessary to

serve the purpose of the exemption.”

The Fifth Distiicv rejected this argument for two

reasons. First, it pointed out that section 406.135 does not

apply “to other records of the autopsy such as the written

autopsy report” and “the trial court found that there was

no information that could be obtained from the autopsy

photographs of Mr. Earnhardt that was not contained in

the autopsy which was published to the parties and the

public.” 821 So. 2d at 394. This is flawed on several levels.

The availability of the autopsy report does not, as the trial

court found and the Fifth District accepted, 821 So. 2d

at 393-94, provide an adequate substitute for the photo-

graphs themselves. As this Court knows from its famili-

arity with autopsy photographs used in criminal

prosecutions, such photographs frequently contain

* This Court is familiar with the fact that autopsy photographs are

not all alike. See, e.g., Brooks v. State, 26 FLW S203a (Fla. 2001)

(affirming conviction after introduction of five victim autopsy photo-

graphs noting that trial courts need only exclude “unduly prejudicial or

particularly inflammatory photographs before the jury”).

* See Carroll v. State, 815 So. 2d 601, 621 (Fla. 2002) (affirming

conviction based in part on autopsy photographs); Floyd v. State, 808

So. 2d 175, 183-84 (Fla. 2001) (rejecting ineffective assistance of counsel

claim based on failure to challenge on appeal use of two victim autopsy

photographs to convict defendant); Mansfield v. State, 758 So. 2d 636,

648 (Fla. 2000) (holding trial court did not abuse discretion in admit-

ting photographs depicting mutilation of victim’s genitalia where

_ relevant to medical examiner’s determination of manner of victim’s

death); Larkins v. State, 655 So. 2d 95, 98 (Fla. 1995) (affirming

admission of autopsy photographs “to show the manner of death, the

location of wounds, and the identity of the victim”); Straight v. State,

397 So. 2d 903 (Fla. 1981) (affirming conviction where gruesome

photographs were admitted over defendant's objection that he would

stipulate to the facts); Young v. State, 234 So. 2d 341 (Fla. 1970)

(Continued on following page)

R. App. 87

unique, objective information concerning the cause of

death that is not and cannot be captured in the words and

sketches of an autopsy report or the testimony of a medical

examiner. On the other hand, if the autopsy report and

other materials that remain unsealed after passage of

section 406.135 truly do convey with photographic preci-

sion all of the information contained in the autopsy photo-

graphs, there could be no justification for sealing the

photographs in the first instance. In addition, the Fifth

District’s focus on whether the photographs in this case

would provide additional information about Earnhardt’s

death that was not included in the autopsy report is

irrelevant to the question before the Court: whether any

autopsy photographs that are included within the exemp-

tion contain information not found in unsealed autopsy

reports. The answer to that is obvious — medical examin-

ers cannot always record everything that they see. Dr.

Beaver himself admitted that individuals have expressed

disagreement with the written conclusions of the medical

examiner regarding the cause of death after they have

reviewed autopsy photographs. (R.9-1670-96 ¥ 48).

The Fifth District also rejected Campus Communica-

tions’ assertion that the exemption here is overly broad,

analogizing it to the exemption at issue in Bryan v. State,

753 So. 2d 1244. The court noted that the exemption there

had been justified by the Legislature’s statement that

release of the records “‘would in some cases conflict with

other existing law or would reveal information that would

(affirming conviction based on autopsy photographs that revealed

manner in which several strands of wire had been wrapped around the

victim’s neck).

R. App. 88

jeopardize the safety of the guards, inmates, and others.’”

821 So. 2d at 394 (quoting Bryan’s quotation of chapter 94-

83, Laws of Florida) (emphasis supplied by Fifth District).

The Fifth District reasoned that the exemption in Bryan

“could be considered constitutionally infirm on the same

grounds advanced” by Campus Communications because

that exemption had been found to serve the articulated

public policy only “in some cases.” Jd. at 394. That is not,

in fact, what either the Legislature or this Court found.

The exemption at issue in Bryan, section 945.10(1){e),

applied solely to public records “which if released would

jeopardize a person’s safety.” (Emphasis supplied). This

exemption exactly tracks the specifically articulated public

policy of preventing the disclosure of information that

“would jeopardize the safety of the guards, inmates, and

others.” (Emphasis supplied). Under this exemption, only

that information that would cause the contemplated harm

is exempt.

The Legislature’s observation that “in some cases” the

exemption conflicts with other existing law is not needed

to support the exemption of section 945.10(1)(e). It is

needed to justify other subsections of section 945.10(1),

that were not at issue in Bryan, such as section

945.10(1)(d) which exempts “Parole Commission records

which are confidential or exempt from public disclosure by

law.” Neither this Court nor the Legislature stated, as the

Fifth District erroneously concluded, that _ section

945.10(1)(e) satisfied the requirements of article 1, section

24(c) because disclosure of the information protected by

that exemption “‘in some cases’ would jeopardize an

individual's safety.” 821 So. 2¢ at 394. The Legislature was

clear that in all cases the exemption would serve the

purposes for which it was enacted, prevention of the

R. App. 89

release of information that “would jeopardize a person’s

safety.” In Bryan, the scope of the exemption matches

exactly the scope of the articulated purpose for enacting

the exemption and this Court correctly upheld that exemp-

tion on that basis.

Section 2 of chapter 2001-1 further observes that “the

World Wide Web and the proliferation of personal com-

puters throughout the world encourages and promotes the

wide dissemination of photographs and video and audio

recordings 24 hours a day and that widespread unauthor-

ized dissemination of autopsy photographs and video and

audio recordings would subject the immediate family of

the deceased to continuous injury.” In choosing the word

“would” in this sentence, the Legislature perhaps had this

specific case in mind. It plainly could not have made that

finding with respect to all immediate family members of

deceased persons because in some instances, immediate

family plainly might prefer that the public have the right

to inspect, copy, and publish autopsy photographs. For

example, when an autopsy photograph would be instru-

mental in persuading legislators that action should be

taken to impose certain safety requirements, family

members might be gratified by that use of photographs.

Family members also might be gratified by inspection,

copying, and publication of autopsy records that leads to

the discovery of malpractice or to the uncovering of

wrongdoing.’

"In Church of Scientology Flag Service Organization v. Office of

the State Attorney of Pinellas County, Florida, No. 00-4353-C1-13 (Fla.

6th Cir, July 5, 2000) (writ of mandamus and order denying motion for

temporary injunction), the circuit court ordered the release of autopsy

(Continued on following page)

R. App. 90

The Fifth District expressly acknowledged this argu-

ment, 821 So. 2d at 394 n.3, but chose to address it simply

by stating that the argument has “little merit.” That does

not answer the fact that section 406.135 in fact seals

records that no one, including immediate family members,

would want sealed.

A further difficulty with the breadth of the new

exemption is that inspection alone presents no legally

significant risk that the photographs would be published.

The Earnhardt family argued below that allowing inspec-

tion of photographs would create a risk of publication

because of the availability of small cameras used for

espionage. This argument proves too much. If one assumes

that the public will violate the law to obtain copies of

autopsy photos for dissemination, there is no reason to

conclude that merely limiting public inspection will be

effective. Employees could be bribed and photographs

could be stolen whether inspection were allowed or not.

The mere possibility that a precaution can be circum-

vented by illegal activity does not show that a less restric-

tive precaution (denial of copying) would not be as

effective as the most restrictive precaution (denial of all

access) to prevent the harm. If the harm to be avoided is

publication of autopsy photographs, then the Legislature

plainly had availiable a less restrictive means of achieving

that objective than the means that it chose. The Fifth

photographs to the St. Petersburg Times. In that case, Ms. McPherson

died while in the custody of the Church of Scientology. The St. Peters-

burg Times sought access to the photographs to demonstrate that the

church had mistreated Ms. McPherson. The church, but not the

McPherson family, opposed the release of the records.

aN

R. App. 91

District also addressed this argument solely in footnote

with the two-word observation that it has “little merit.”

821 So. 2d at 394 n3.

The overbreadth of the statute is not saved by the

inclusion of a mechanism by which a court may order the

disclosure of some autopsy photographs. That mechanism

does not require disclosure where harm would not be

caused by inspection, copying, or publication of the photo-

graphs. Indeed, it does not even require disclosure where

“good cause,” whatever that may be, is shown. Section

406.135(2)(a), states only that the “court, upon a showing

of good cause, may issue an order authorizing any person

to view or copy a photograph or video recording of an

autopsy.” The court retains discretion under this statute

not to release the materials even when good cause has

been shown. Moreover, the legislature has done nothing to

define “good cause,” other than to indicate that “the court

shall consider whether such disclosure is necessary for the

public evaluation of governmental performance; the

seriousness of the intrusion into the family’s right to

privacy and whether such disclosure is the least intrusive

means available; and the availability of similar informa-

tion in other public records, regardless of form.” These

criteria do nothing to ensure that a court’s discretion will

be confined so that it will allow inspection of materials

that will not cause the harm that supposedly justifies the

exemption. In fact, the statute does not require the court

to release materials under any knowable circumstances.

Instead, this part of the statute simply transfers legisla-

tive powers to the judiciary and recommends factors for

the judiciary to consider in making ad hoc determinations

of whether ad hoc access will be allowed to particular

records. This creates yet another constitutional defect in

R. App. 92

Section 406.135. The Legislature may not delegate the

power to enact a law or the right to exercise unrestricted

discretion in applying the law.’ The Fifth District contends

that “acceptance of the delegation argument would make

every other statute authorizing the courts to act upon a

showing of good cause constitutionally suspect,” citing ten

statutes. 821 So. 2d at 394 n.4. In fact, only two of the ten

cited statutes refer to “good cause” at all and do not

employ the “may” mechanism.

* See Sims v. State, 754 So. 2d 657 (Fla. 2000); B.H. v. State, 645

So. 2d 987, 991-92 (Fla. 1994); Askew v. Cross Key Waterways, 372 So.

2d 913, 924 (Fla. 1979); State v. Atl. Coast Line R.R., 56 Fla. 617, 47 So.

969 (1908). The Legislature may “enact a law, complete in itself,

designed to accomplish a general public purpose, and may expressly

authorize designated officials” to administer the law, but only “within

definite valid limitations” to allow “operation and enforcement of the

law within its expressed general purpose.” Atlantic Coast Line Railroad

Co., 56 Fla. at 636-37, 47 So. at 976. Chapter 2001-1 does not provide

sufficiently definite, valid limitations to allow for the complete opera-

tion and enforcement of the exemption. Instead, the legislature has left

the courts to determine what constitutes “good cause” for the disclosure

of the autopsy records at issue and, to the extent that the legislature

has provided guidance with respect to that determination, it has done

so on the basis of criteria that are impermissibly based on the past or

future expression of the requester. The Florida Supreme Court held a

similarly imprecise statute regulating speech to be an invalid delega-

tion of legislative authority in Brown v. State, 358 So. 2d 16, 20 (Fla.

1978). The statute in that case made it a misdemeanor to use “profane,

vulgar and indecent”

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