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Thursday, March 29
Earnhardt bill passed unanimously
Associated Press

TALLAHASSEE, Fla. -- Standing by the widow of racing legend Dale Earnhardt, Gov. Jeb Bush signed a bill Thursday that closes autopsy photos from public record.

The new law, certain to be tested in the courts, would bar public access to all autopsy photos unless a judge approves the release. Such photos had been open records as part of Florida's Sunshine Law, the most liberal public-records rule in the country.

Teresa Earnhardt
Florida Gov. Jeb Bush presents Teresa Earnhardt the pen he used to sign the Dale Earnhardt Legislation on Thursday.
"Our family has suffered unimaginably since Feb. 18th, and even more so, as a result of this violation of our right to privacy," Teresa Earnhardt said with a steady voice but downcast eyes. "But today ... something positive has emerged from this incredible ordeal. Today, all Floridians are winners."

The measure (HB 1083) was passed unanimously in the Senate earlier Thursday. It would be a third-degree felony to improperly release the records with a maximum sentence of five years in jail and a $5,000 fine.

"This bill accomplishes the delicate balance between the public's right to know and a family's right to privacy," Bush said.

Bush thanked the Legislature for handling the bill in what he called record speed. "A tribute to the speed of Dale Earnhardt," he said, smiling at Mrs. Earnhardt.

Mrs. Earnhardt led the public drive for the bill after her husband, a seven-time Winston Cup champion, died in a last-lap crash in the Daytona 500 last month.

She won a court order to keep the autopsy photos private, but a day later, attorneys for the Orlando Sentinel went to court and, citing the state's open-records law, asked that the newspaper's medical expert be allowed to look at the photos.

During the ensuing legal battle, racing fans bombarded the offices of Bush, legislative leaders and the Sentinel with thousands of e-mails, letters and telephone calls, protesting efforts to see the photos.

"I never knew Dale Earnhardt, but through this bill, I've gotten to know his family and his wife," said the measure's sponsor, Sen. Jim King.

But King, R-Jacksonville, said he was more moved by the letters and calls from family members of ordinary people who didn't know that autopsy photos could be made public.

King, whose district includes Daytona International Speedway, noted that the new law will most likely be taken to court immediately by those who feel it goes too far in limiting access to public records.

"I know it's going to be difficult, but let me tell you, we couldn't draft anything that wouldn't be challenged in this very difficult area," said Sen. Rod Smith, D-Gainesville.

The Sentinel and other news media plan to file a lawsuit challenging the law as unconstitutional, saying it goes too far by forcing anyone to get a judge's permission before autopsy photographs could be viewed.

They also say the bill cannot be applied to cases where requests have already been filed for autopsy photographs.

David Bralow, the Sentinel's attorney, said lawmakers should have taken more time to deal with the bill's constitutional problems.

"I'm just so disappointed that lawmakers would give this kind of bill special treatment when bills for education and social issues don't seem to get it," Bralow said in a story posted on the Orlando Sentinel's Web site.

"This is a sad day for Florida residents," said Ray Marcano, president of the Society of Professional Journalists and assistant managing editor for production at the Dayton (Ohio) Daily News. "Lawmakers have told their citizens that when they demand public information, the Legislature will take steps to keep it secret.

"Florida has taken a giant leap backward by weakening what had been the nation's best open records law," Marcano said. "And citizens now live in a state where they have the right not to know."

Marcano's group along with the American Society of Newspaper Editors supported the push to keep the public records law from being changed.

But Thom Rumberger, attorney for the Earnhardt family, said the media's fear is misguided.

"A reading of this bill clearly, clearly specifies that anybody who has a just cause and needs to see those records can get them," Rumberger said. "But now, you can't just walk in there (the medical examiner's office) and say, 'I want the records."'

Similar legislation is awaiting the governor's signature in Georgia, is under consideration in South Carolina and was introduced earlier this week in Louisiana.

Jim King
Senate Majority Leader Sen. Jim King sponsored the measure that was passed unanimously Thursday.

King said the measure lets families see the photos, and establishes a hierarchy within a family to determine who has the final say over them.

The law is retroactive, although the Sentinel's effort to view Earnhardt's autopsy photos was already handled in mediation. A court-appointed expert has reviewed them and will issue a report that will go to the widow and the newspaper.

The newspaper has said it doesn't want to publish the photos, but wanted an expert to look at them as it reports on safety in NASCAR.

At the bill signing, Mrs. Earnhardt said "We have said from the beginning that if one news organization is granted access to these private and painful images of my husband, others will request access, and sooner or later they would be published on the Internet and elsewhere."

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

Websitecity.com is posting graphic autopsy photos of NASCAR drivers Rodney Orr and Neil Bonnett, who died at Daytona within three days of each other in 1994. The president of the Web site, Michael Uribe, asked the Volusia County Medical Examiner's Office for the autopsy photos Wednesday.

"We hope this new law will stop these organizations, and others, from further exploiting such tragic events," Mrs. Earnhardt said.

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