Are autopsies a part of the public record or an individual’s medical record? This question made it all the way to South Carolina’s Supreme Court after a newspaper called The Item sued the Sumter county coroner, arguing for the first categorization.
In The Item‘s case, the coroner refused to release the autopsy report of Aaron Jacobs, a 25-year-old man shot by police “during a search for a carjacking suspect.” The coroner asserted the autopsy report is covered by patient privacy laws since he’s a healthcare provider. Jay Bender, a lawyer for the South Carolina Press Association, scoffed at the idea and said the claim was “absurd” since coroners only take care of dead people. Turns out that when The Item got the autopsy report from someone else, it contradicted a lot of things officials told the public after the incident. Awkward.
The issue comes down to whether coroners have to release autopsy reports under a state’s Freedom of Information Act.
This ontological debate was spurred by Dale Earnhardt’s death in 2001. Florida changed the state’s FOIA guidelines with a law called the Earnhardt Family Protection Act to exclude photos of the racer’s autopsy so it wouldn’t end up online. The Orlando Sentinel had requested Earnhardt’s autopsy report to continue their investigation into NASCAR safety. The Reporters Committee for Freedom of the Press, FL newspapers, and FL press associations protested the law, arguing it would “cripple the news media’s ability to determine a true cause of death in cases of public importance” – and that it violated Florida’s State Constitution.
Other states followed suit with similar legislation, some of which excluded autopsies’ written reports as well. As of right now, 15 states allow autopsy reports to be released publicly. 6 other states will release the reports if they’re not a part of a criminal investigation. The other 29 states don’t release the reports at all or have very strict restrictions on what is released.
Despite my passion for government transparency, my initial research about the case in South Carolina gave me pause. The thought of whomever obtaining photographs of someone’s dissected and searched remains created a small pit in my stomach. There seems to be a human instinct to honor the dead in some fashion as eons of history have shown. Perhaps my reaction was religiously-based (I’m a fairly observant Jew), but there is something to be said for citizens having access to materials used in investigations – especially when journalists are looking into potential wrongdoing:
Keeping autopsy records secret closes off an important tool to make sure police agencies do the right thing when they investigate deaths, especially people shot and killed by officials or who die in custody, said Frank LoMonte, executive director of the Student Press Law Center.
“There is any number of cases over the years where journalist watchdogs have been able to shed light on suspicious circumstances only by having access on those records,” LoMonte said. “And those records don’t just show culpability, they can clear someone, too.”
The concept of Journalist As Watchdog is nothing foreign and there is substance to LoMonte’s claim. Authority figures should not be shielded from accountability by virtue of their positions and these are valid questions to ask of them. But when it comes to an individual’s remains, there is always a chance of posthumous exploitation – especially if photos are included. It’s easy to imagine the National Enquirer covers during some future sensationalized trial.
And there is the suspicious nature of the circumstances surrounding some of the FOIA request denials (e.g., The Item’s request for Jacobs’ report). Even when the documents are covered by a state’s FOIA umbrella, that doesn’t exclude the possibility of further obstacles. WIS, a TV station in Columbia, SC, was charged nearly $30,000 to collect documents that they had access to under the Freedom of Information act. WIS was investigating whether an administrator had sent out porn from a county computer.
It doesn’t cost $30,000 to gather emails. There are blatant cases of the government attempting to cut off citizens from lawfully accessible information. And this even happens at the state and local levels.
Currently there’s a bill stuck in the SC legislature that would stop agencies from charging for digital records and keep xerox costs at market prices rather than jacking them up to 25 cents (or more) a page. However, a similar bill didn’t get didn’t anywhere last year.
Looking into whether some guy was sending out porn from a taxpayer-funded computer is small potatoes compared to accusations of police coverups (it wasn’t child porn), but that doesn’t undermine the fact that it is all too easy for governing entities to stonewall outsiders from seeing things they don’t want people to see. When we live in a country where federal FOIA request denials have gone through the roof, these smaller-scale trends shouldn’t be overlooked.
Yet when trying to balance access to investigative materials and respecting the dead, the broader question isn’t necessarily clear-cut. Frank LoMonte, quoted earlier in this article, acknowledges this difficulty when defending access to autopsy records:
“It is really, really hard to draw a statute that says the only people can get public documents are people with good intentions. You have to decide what is more important — public accountability or the death investigation system or the possibility people might be traumatized,” LoMonte said.
On the one hand, the individual is already deceased and even abusing access to autopsy reports won’t result in “harm” to the dead person in a conventional sense. The argument that autopsy reports, as investigative tools, should be available to the public for worthwhile purposes is compelling.
However, the potential for exploitation is very real and the frankly graphic nature of an autopsied corpse can be considered intruding on the privacy of the deceased individual. As a friend pointed out to me “it’s odd to speak of the rights of the dead,” however we do already carry out the dead’s wishes as outlined in a will. We have the legal privilege to sort our affairs posthumously – perhaps this extends to literally keeping our insides inside too.
Yet there is no way to codify a system that properly sorts good intentions from bad ones. As a rule of thumb I resist calls for more legislation – and in the ongoing case in South Carolina, there are serious Freedom of the Press issues to grapple with too. But when it comes to this already-existing legislation: even if we could access any autopsy report under FOIA requests, the question really is if we should.
In cases of suspected foul play, the answer is generally affirmative. But when thinking about the larger implications of completely open autopsy reports, it’s not quite as straightforward.
What do you think? Let us know in the comments.