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Home > Publications > Quill > Freedom of Information Toolbox - May/June 2010


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Monday, May 31, 2010
Freedom of Information Toolbox - May/June 2010

Digging 6 feet under for records

By Ana-Klara Anderson

The word autopsy is derived from Greek and means “to see for oneself.” Autopsy reports that are part of the public record help journalists do just that, enabling them to report on crime, high-profile deaths and public health issues. Such reports have revealed public safety threats, uncovered murders committed by law enforcement officials and exposed fatal child abuse.

But these important records aren’t available to the public in every state. About half of the states and the District of Columbia prohibit disclosure of autopsy records. When the records are public, access laws are mired by “what if” exemptions that limit disclosure and give records custodians unfettered discretion.

To understand who gets access to what, when, in what medium and for what reasons, a journalist should know whether the autopsy record is presumptively open or closed. Is the record custodian supposed to take any additional factors into consideration when determining access? Does any case law exist in which a court interpreted the existing statutes?

To help citizens and journalists answer these questions and make effective and knowledgeable requests for autopsy records, the Marion Brechner Citizen Access Project (citizenaccess.org) at the University of Florida College of Communications examined each state’s statutes and determined exactly how much access citizens have to autopsy records in particular states. Journalists can use these findings, which are current through the 2008 legislative session and the most up-to-date data available, to craft a specific record request and combat a potential rejection that does not comply with state law.

OPEN OR CLOSED?

Most states don’t clearly establish whether their autopsy records are open or closed. Only 16 clearly proscribe that such records are open, and eight expressly state that they are closed. Four states (Massachusetts, Michigan, Nevada and Wisconsin) don’t mention the issue at all. In the remaining 22 states and D.C., custodians get no clear legislative guidance but do use additional factors to determine whether to grant disclosure. The majority of the other 24 states that don’t expressly state whether their autopsy records are open or closed also incorporate these factors.

FACTORS TO CONSIDER

Record custodians in 42 states and D.C. may grant or deny access based on one or more of the following: 1) the type of information contained in the record; 2) the medium in which the record is contained (text, photo, etc.); 3) the effect that disclosure of the record will have; 4) the person or agency requesting the record; 5) the purpose of the request; 6) the circumstances surrounding the death.

A journalist who requests an autopsy record in Maryland may assume that the custodian will grant disclosure because the state law dictates that such records are open. However, disclosure is prohibited when it could interfere with law enforcement functions or litigation, constitute an unwarranted invasion of privacy, disclose a confidential source or endanger an individual. Conversely, a journalist in Idaho may think that a custodian will deny an autopsy record because the state law expressly prohibits it, but the custodian is obligated by law to disclose the record when there is a possibility of fraud related to benefit payments stemming from the death.

Disclosure based on medium (e.g., paper report or photograph) and type of information (e.g., name and cause of death) is clear-cut. However, other factors afford custodians more discretion. In Maine, a custodian may grant or deny a citizen’s request for an autopsy record because of the requestor’s purpose or the effect that disclosure of the record may have. In some states, a custodian may release autopsy records only when the requesting party shows “good cause” or “substantial interest” in the record.

DON’T FORGET THE CASE LAW

Decoding a state’s statutes is only half the battle. Whatever the law says, it might be negated — or reinforced — by state-level judicial decisions interpreting those statutes. This kind of case law exists in almost half of the states. In three of the four states that don’t have any statutes addressing public access to autopsy records, case law is the only authoritative guidance. Being prepared and knowing the law may be the difference between a rejected record request and full disclosure.

Ana-Klara Anderson, J.D., Ph.D., is a law clerk with Thomas and LoCicero PL in Tampa, Fla. She is a former researcher for the Marion Brechner Citizen Access Project and currently serves on the SPJ Freedom of Information Committee. She’s a 10-year member of SPJ and hails from the North Central Florida professional chapter, where she served as president last year. Contact her at aanderson@tlolawfirm.com.

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