# Appendix — Campus Communications, Inc. v. Earnhardt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2203%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 540 U.S. 1049 ## Text 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 «