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Photos of the dead

Terminal Athlete's FootLawmakers consider barring publication of autopsy photos, other records

On a recent legislative free trip around southeastern Arizona, lawmakers met with Cochise County Sheriff Mark Dannels, who gave them a tour of Arizona’s border with Mexico and a pitch for his legislative priorities next year.

Dannels was elected to replace former Sheriff Larry Dever, who died on the job in September 2012 in a single-person drunken driving accident. The death of the respected, straight-shooting border sheriff was a shock to the community, and a national news story.

After the death, the county offices received public record requests from the media for the autopsy report and photos from the procedure, along with photos of the crash scene where Dever died. The requests, and the fact that the county had to hand over graphic photos, disturbed Dannels.

So while riding on a bus with a legislative delegation, Dannels urged lawmakers to exempt from public records certain autopsy reports and photos.

“I think people in this state need to realize that if their family member or they die and a law agency is investigating their death that is now a public record for anybody to go out and share. That is wrong, in all ways,” he told the Arizona Capitol Times after the tour.

Lawmakers on the tour said he also talked about exempting crash scene photos and police personnel files from public records, but Dannels said he’s only focusing on autopsy photos and reports. He said crash site photos in active investigations should be reviewed by a judge before being automatically released, and police personnel files should be available to the public.

But Dannels called for a “zero tolerance” policy on autopsy photos.

“Right now, you can ask for an autopsy photo, whether it be a child or adult, and get copies of that. I think that’s alarming, I truly do, under our public records law. And I’ve asked for some redefining of the words on that,” he said.

Appropriate balance

Recently, The Arizona Republic gave up a battle with Yavapai County over public documents and photographs surrounding the deaths of the 19 Granite Mountain Hotshots who perished in the Yarnell Hill Fire.

Gannett Company, parent of The Republic and 12 News, sued the Yavapai County Sheriff’s Office and the Yavapai County Medical Examiner in September for not releasing public records, including photos of the scene of the firefighters’ deaths. Gannett originally included a request for autopsy reports, though the company later backed off suing over those records. In the suit, the company specifically said it was not requesting photos from the autopsy or photos of human remains.

Gannett dropped the suit after Yavapai County officials said they had already given all records they had that fit the request.

Attorney David Bodney of Steptoe and Johnson, who represented the company, couldn’t comment on the specifics of the Yavapai County case, but said the law in general already strikes the appropriate balance between privacy and the public’s right to know. He said there’s no need to enact legislation to address the issue.

Attorney Dan Barr of Perkins Coie noted that releasing autopsy reports to the media serves a public purpose. In instances where someone died amid suspicious circumstances, autopsy reports and photos can shed light on issues of public importance and help journalists figure out what actually happened, even if it is embarrassing to public officials.

“How someone died is important, and should be public record. With Larry Dever, you had a top law enforcement official dying under those circumstances, and information about how he died, what his blood alcohol content was, things like that, become important,” Barr said.

Barr said the open records laws are more likely ignored in high-profile or emotionally charged cases. He said if Dever were a transient instead of a respected sheriff, for example, law enforcement probably wouldn’t hesitate to turn over the records.

While autopsy reports and photos have been considered public records for decades, and the records are regularly released to the media, abuses are rare to nonexistent. And if a media company does print gruesome photos, the public can choose not to look at the photos, or not buy the paper, Basrr observed.

“It’s another legislative issue in search of a problem,” Barr said.

Lawmakers consider changes

But Republican Rep. Bob Thorpe of Flagstaff, who was on the tour with Dannels, said he would support changing the public records definition to exclude autopsy reports and photos.  He is considering running legislation next year if his party leadership is amenable to the idea.

He said police photos depicting crash scenes or dead people and some other sensitive documents need to balance a public’s right to know with the privacy of the families, and he may consider changing those laws also.

“If it’s being done just for sensational reasons, it doesn’t really fall into protection of the press,” Thorpe said, adding that maybe a court should review certain sensitive public records before releasing them to the public.

Thorpe, who said Dannels also brought up issues of police personnel files being public records, said exempting those from the public record may be going too far.

Republican Rep. Carl Seel of Phoenix, who was also on the tour with Dannels, said he sees autopsy reports as akin to medical records, which are exempted from public records under the federal Health Insurance Portability and Accountability Act of 1996 (HIPPA).

He said he would consider supporting legislation to make at least autopsy reports private.

Seel said he also remembered the sheriff making references to police personnel files and why they’re problematic.

Republican Rep. Gail Griffin, who represents Cochise County and is familiar with the issue, said records depicting dead people need to be treated differently than other public records, out of respect for the dead and their families.

She points to a photo posted on the website of a local online news organization, the Cochise County Record. The Record ran a photo from the scene of Dever’s death that showed the sheriff slumped over in his car, obviously dead.

“To open an email and see Sheriff Dever slumped over in a car, that’s not right,” Griffin said.



A local crusader

When he moved to Cochise County, David Morgan, publisher of the Cochise County Record, wanted to start a small weekly newsletter that would report news of who was born, who died, who got married, who got divorced and who got arrested that week.

But after realizing how hard it is to get public records from Cochise County officials, who he says flagrantly ignore public records laws, he became the local public records crusader.

“There’s just a horrible abuse of public records laws in Cochise County, largely attributable I think to the fact that we’ve never had strong media of any type in Cochise County. There’s just been nobody asking the questions,” he said.

Morgan boasts that government employees told him he has requested more public records than anyone in the history of the county. In the past few years, he has sued several different local agencies over public records, winning a few and losing a few cases. Recently, he started distributing fliers to government employees citing open records laws and warning that impairing the availability of a public record is a class 6 felony.

Morgan readily admits he used a photo of the body of Cochise County Sheriff Dever after his fatal crash for shock value, because more people need to pay attention to important issues like this one. But he said he chose one of the photos that was shocking without being gruesome.

“I’ve reviewed hundreds of pages of reports and photos that I would never publish. I want to see that the various government agencies involved in these things are actually doing their jobs. I want to know that they really did the autopsy,” he said.

Morgan said that photo and others he requested also proved an important point. In the first official report from the crash, Coconino County Sheriff’s deputies wrote that they saw no sign that the sheriff was drinking, Morgan said.

But the photos Morgan received from a public records request showed there was alcohol in the car. The autopsy report showed Dever had a blood alcohol content of .291, more than three times the legal limit.

“That’s why you cannot allow them to make documents that nobody sees but themselves,” Morgan said.

Hank Stephenson

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