Who will speak for the dead, if they can’t speak for themselves?
The day after the coroner announced that the death of impressionist/singer Danny Gans was accidental, the Review-Journal received a reply to our public records request for Gans’ toxicology report.
No surprise. Denied.
The letter cited precisely the document we expected, a 1982 opinion from then-Attorney General Dick Bryan, who later served as a U.S. senator and has since retired to private law practice.
The letter explained, “The opinion, rendered on June 15, 1982 states that autopsy reports are not open to the public for inspection, copying or dissemination. The reasoning is because the reports contain confidential medical information about the decedent that should not be open to the public.”
Yes, we are fully familiar to the Bryan extra-legal concept fashioned out of vagaries and sleight of hand.
In a bizarre conclusion to his opinion, Bryan opines that autopsy records are in fact public records, which state law declares to be open to public inspection unless otherwise declared closed by law, but then declares them private.
“An autopsy protocol is a public record,” the opinion states, “but is not open to public inspection upon demand, because disclosure would be contrary to a strong public policy … maintaining the confidentiality of the medical information contained in the protocol accords with the intent of the governing ordinances and the administrative interpretation thereof.”
In the opinion Bryan finds that the medical records of living persons are widely construed to be private and personal, and then makes the leap that the privacy is carried to the grave.
One could argue that living people have a right to defend themselves against defamation, but the courts have declared the dead have no such rights. The living can speak for themselves. No one can really speak for the dead.
Nothing against the coroner’s conclusion in the Gans case, but if the toxicology report were allowed to be inspected by an independent medical examiner, might not another opinion be found? Now the case in closed. No one, so far as we will ever know, will be found culpable or contributory.
Gans can’t speak for himself. Who will?
