Cochise County Sheriff Larry Dever lay dead in the driver’s seat of his wrecked pickup truck, his head turned away from the camera, his body slumped over toward the passenger’s side and his left arm bloody at the elbow.
The scene was captured in a photo taken by government officials in their investigation of the single-vehicle drunk-driving accident that killed Dever in September 2012.
A local online news organization in Cochise County obtained the photo through Arizona’s public records law and published it on its website, along with photos showing the crash scene from a distance and a close up of a half-empty bottle of peppermint schnapps in the truck.
The shock of seeing the respected lawman dead sparked lawmakers to review what kinds of images should be considered public records.
Last year, the media’s records requests for documents and photos depicting the circumstances surrounding the deaths of 19 Granite Mountain Hotshots who were fighting the Yarnell Hill Fire further heightened interest from lawmakers in ensuring that the right to privacy for the families of the deceased is weighed against the public’s right to know.
So Republican Rep. Karen Fann of Prescott sponsored HB2225 this year stating that photos, images, X-rays and recordings of human remains created by a medical examiner cannot be disclosed to the media or the public unless a Superior Court judge reviews and OKs the images first.
And while any attempted change to the public records laws in Arizona usually means a fight with the newspaper industry, the Arizona Newspapers Association didn’t oppose HB2225. The House Government Committee approved the bill unanimously on Jan. 28.
Avoiding legal battles
Fann said her primary motivation to sponsor the bill was to ensure county medical examiners, who are like coroners, are not caught in the middle of a legal battle over their records, like the Yavapai County medical examiner was following the Yarnell Hill Fire.
Paula Casey, executive director of the Arizona Newspapers Association, said the measure is a prime example of different stakeholders reaching a consensus on an issue, and the law will only cement in statute what is already the practice. She said the change codifies established case law on how to handle the dissemination of images taken by a medical examiner of dead bodies, and it won’t impede the public or media’s ability to access government records.
“We don’t believe it keeps people from getting the records. They’re just doing the same thing that they’ve had to do since 2009 (when the legal precedent was set). It won’t change anything. If someone needs the graphics or video of an autopsy there is a way to get those, so it’s not like they’re being shut out,” Casey said.
But David Morgan, publisher of the Cochise County Record, disagrees. His online news organization published the image of Dever dead in his truck and stirred up the controversy about public records containing images of the dead.
Morgan said there may be legal precedents for judges reviewing photos of human remains before releasing them to media and the public, but in reality, they are often assumed to be public records. He has requested and received autopsy reports and photos — including from Dever’s autopsy — without having to go to court, which is expensive and time consuming.
“These are not minor efforts. Going to court to fight the government in court isn’t exactly a few minutes effort, or a few hours effort,” he said.
Any requirement that photos need judicial review before they can be disclosed to the public will make it that much harder for outside parties to review the document for accuracy and context, he said. If a police report says a person was shot four times, Morgan wants to be able to review autopsy photos of the victim to ensure that there are four bullet holes in the body, to ensure they match up and nobody is lying or making mistakes.
Furthermore, in small towns like Sierra Vista, where he is from, judicial review creates additional problems, especially in high-profile incidents like Dever’s death or a recent police-involved shooting.
“If I have to go to a local judge to get access to information about a local death involving a prominent person, like Larry Dever, maybe, or a police-involved shooting like Cameron King in Tombstone last year, the problem is with these local politics. A local judge, a local medical examiner, a local sheriff. The deck is stacked against you if they don’t want you to have this information,” Morgan said.
He acknowledges he used the photo of Dever in his truck somewhat for shock value, but said it also served a legitimate public purpose in showing the facts surrounding Dever’s death, including that he had been drinking, wasn’t wearing his seatbelt and the airbag in his truck never deployed.
Morgan notes that the photo wouldn’t be exempted from public record anyway under the bill because it came from the Coconino County Sheriff’s office and not the county medical examiner.
Both Fann and Casey referenced the photo of Dever as a prime reason for sponsoring and supporting the bill, and Casey said a “legitimate media” organization wouldn’t have published that photo.
Morgan said the photo in question is only one of many that he received from public records requests about Dever’s death, and far from the most shocking one he could have published. He said he also reviewed autopsy photos of the sheriff, and didn’t even consider publishing those gruesome photos.
Not controlled by the “good old boys’’
Morgan’s website does its own records-based reporting, and has uncovered many issues the local newspaper has not. Though it’s a small operation, Morgan disputed that the Record isn’t a legitimate media organization, and said his site proves that readers will pay and subscribe to support high quality local news with unique content and reporting that isn’t controlled by the “good old boys” in town.
He notes that the issue was first brought to lawmakers’ attention by his local sheriff, Mark Dannels, who took over after Dever died. When Dannels made his original pitch to lawmakers, they said Dannels asked them also to exempt crash scene photos and police personnel files from public records, as well as autopsy reports and photos of the dead.
Dannels said he was only focusing on photos and autopsy reports, but Morgan argues that this is just the tip of the iceberg to lock down public records if Dannels has his way.
“I think this is about further chipping away at the Arizona public records law to make it more and more difficult to get access to basic detail on how our government is operated,” Morgan said.