Why the public deserves to know

In 2001, the Orlando Sentinel filed a public records request seeking to have a private medical examiner view the autopsy photos taken after driver Dale Earnhardt was killed in a race car crash at the Daytona 500.

The request came on the heels of an investigative series of articles in the newspaper questioning the safety equipment used by NASCAR. Among other things, the newspaper was seeking to determine whether a different kind of safety device used in other racing leagues might have saved the superstar’s life.

The rage against the newspaper was immediate, loud and angry. Earnhardt’s widow and thousands of NASCAR fans called the request ghoulish and predicted the autopsy photos would wind up on the Internet as some form of bizarre necro-porn.

The newspaper did not ask for copies, but merely to allow its expert to view the photos.

Anyone standing in the doorway of the houses of the state Legislature in Tallahassee would have been trampled by the lawmakers rushing to pass a law exempting autopsy photos from the state’s strong public records law.

The lawmakers let emotions over some far-fetched potential misdeed and vague privacy concerns shroud a legitimate public policy concern — safety in the sport of auto racing.

This issue of public access to factual information in the realm of public policy debate came up again this past week when Review-Journal reporter Arnold M. Knightly and photographer John Gurzinski reported observing workers drinking in various bars and then going into the multibillion-dollar MGM Mirage CityCenter project.

What makes this a public policy issue is that 12 workers have died in construction-related accidents in the past 18 months. In June, 17 unions put together a 24-hour strike of the CityCenter and the nearby Cosmopolitan project to demand certain safety concerns be addressed.

General contractor Perini Building Co. quickly agreed to several demands, including allowing union and safety offices full access to the sites.

The accidents have raised questions about adequate safety training, safety nets to prevent falls, safety harnesses and more. The accidents also prompted government officials to set up a task force to take a look at what government, construction and union officials could do to improve safety.

The topic is a matter of public concern and debate. But one part of the safety equation is not on the table — toxicology reports for those who were killed on the job site.

As part of our reporting endeavors for this story, we asked the Clark County coroner for that information. We asked if any of the deceased, even without identifying anyone by name, had been found to have alcohol or drugs in their systems. This is not to imply anything about any of the workers, but simply due diligence.

We were told the coroner’s office “does not release such reports to persons who are not legal next-of-kin to a decedent. The reason we do not disclose these reports is to maintain the confidentiality of medical information contained in such reports.”

Though the state public records law clearly says any government record not specifically exempted by law — and no such law has been passed — is available for public inspection, the coroner relied on a 1982 attorney general’s opinion written under the auspices of then Attorney General Richard Bryan, who went on to serve as governor and U.S. senator.

“While cognizant that public inspection is the rule and secrecy the exception,” the opinion declares, “we can ascertain no public interest in disclosure sufficient to outweigh the public policy of confidentiality of personal medical information.”

Never mind that the public policy was snatched out of thin air and not the law.

But the opinion also leaves open the possibility that such a sweeping cloak of secrecy might not always be appropriate.

The opinion so notes, “There may, of course, be a situation when a particular report would be available for a particular party who has sufficient interest to justify that access. This access is, as always, available through the correct procedures of law.”

For the purposes of debating public policy, I contend access to all pertinent information is necessary to reach a reasonable conclusion. Facts should trump emotion in any discussion — though that is seldom the case.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.

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