Don't Hide the Autopsy Reports

Sunday’s editorial is a plea to keep autopsy reports open to the public:

If taxpayers pay for a public employee to investigate and write a report, should those same taxpayers be able to see that report? We certainly think so. But an S.C. judge has disagreed, ruling this month that autopsy reports should be withheld from the eyes of the public that paid for their creation. Fortunately, the case is being appealed, giving a higher court the chance to reverse the regrettable decision.

The facts of the case in question are these, as an Associated Press article laid them out this past week: The Sumter Item newspaper asked for the autopsy report of a man shot in the back and killed by police in 2010. When a reporter got the information from another source, it contradicted what officials said in the days after the shooting, including whether the suspect ever fired a gun. The county coroner continued to refuse to release his official autopsy report, calling them medical records that are exempt from disclosure under the state’s public access laws.

Seeking the details of such reports does not stem from some macabre urge to read and publish the details of local deaths. In fact, The Sun News has rarely sought full autopsy reports. The last instance that comes to mind was the death of Carolina Forest student Trevor Varinecz. In that case, we obtained the autopsy report from the State Law Enforcement Division, in part to settle confusion about the number of shots fired in his death. In most cases, local coroners often freely provide all the information most relevant to the public, such as a cause of death or the blood alcohol content of the deceased. That being said, the full report, paid for by S.C. taxpayers, should be available if and when any member of the public asks for it.

But don’t go getting your hopes up. Horry County Coroner Robert Edge or Georgetown County Coroner Kenny Johnson said this week that they are unwilling to release the reports. Both cited federal health privacy laws as the reason they won’t give out such reports. If that’s the only thing holding them back, we’re happy to put their minds at rest. Coroners aren’t subject to such federal privacy restrictions.

As Columbia attorney Jay Bender – an expert in freedom of information laws – told us, “It’s quite clear that coroners aren’t covered by HIPAA. From their comments, it suggests that they have not read the law.”

A spokeswoman for the federal Department of Health and Human Services concurred, saying unambiguously this week that “staff working within a coroner’s office, such as medical examiners and pathologists” are not covered by federal privacy laws.

Of course, now S.C. law has become another matter. If the latest ruling is allowed to stand, these reports will be placed out of reach of all but a few privileged public officials.

Johnson, the Georgetown County Coroner, was sympathetic on Wednesday, but unconvinced: “Not that the news or media don’t have certain rights to certain news or information, but it comes down to what would be the benefit of releasing that medical information?”

It’s a fair question. Why is it important for autopsy reports to be available? One obvious answer (though it might not be one that coroners or police appreciate) is that it offers the public one more way to ensure that the government employees whose salaries they pay are doing their jobs correctly. The Sumter case, as described above, involved a discrepancy between police statements and other information. Reviewing the autopsy report could have helped put those contradictions to rest and determine where the truth lay.

Other newspapers and investigators across the country have used death certificates and autopsy reports in reporting that uncovered patient abuse, physician negligence, medical errors, bungled child death investigations and even the sale of human body parts by coroner’s offices. They’ve been used to document the spread of infectious or dangerous diseases, like rabies or MRSA. They’ve been used to show that state agencies meant to protect children missed the red flags that should have pointed them to ongoing abuse. And they can shed important light on investigations that involve public safety organizations, bringing what otherwise might end as just an internal report into the public domain.

There’s no doubt a legitimate concern that making the reports open to public access could allow some unscrupulous folks to profit by publishing intimate and embarrassing details. But it’s hard to argue that there’s a great possibility of such a loathsome act occurring, as it certainly hasn’t yet. The Item won a similar case in 1989, at which point autopsy reports were determined to be records that should be released under the state’s freedom of information laws. As far as we know, that ruling set off no stampede for the reports or led to any large-scale public airing of dirty laundry.

Further, photos and videos that accompany autopsy reports are already specifically exempt from public access, a change made by the legislature in 2002 in response to concerns of Dale Earnhardt’s death in Florida. That change, in fact, is what The Item’s case hinges on.

Bender, who represented The Item, argued that if autopsy reports were medical records, as the coroner claims, and already exempt from disclosure, then there was no need for the legislature to add the exemption for autopsy photos and videos. By adding the exemption, legislators proved that autopsy reports are subject to disclosure and were in need of new rules to govern that disclosure. The judge was obviously unconvinced, but perhaps the argument will have better luck at the next level.

However the next judge rules, this is one area that would benefit from attention in the General Assembly this coming session. Legislators should clarify the intent of the law, making it clear that autopsy reports, while full of medical information, do not fall under the blanket “medical records” exemption and preventing further foot-dragging and expensive lawsuits from stalling the search for truth.

 

 

Seeking the details of such reports does not stem from some macabre urge to read and publish the details of local deaths. In fact, The Sun News has rarely sought full autopsy reports. The last instance that comes to mind was the death of Carolina Forest student Trevor Varinecz. In that case, we obtained the autopsy report from the State Law Enforcement Division, in part to settle confusion about the number of shots fired in his death. In most cases, local coroners often freely provide all the information most relevant to the public, such as a cause of death or the blood alcohol content of the deceased. That being said, the full report, paid for by S.C. taxpayers, should be available if and when any member of the public asks for it.

But don’t go getting your hopes up. Horry County Coroner Robert Edge or Georgetown County Coroner Kenny Johnson said this week that they are unwilling to release the reports. Both cited federal health privacy laws as the reason they won’t give out such reports. If that’s the only thing holding them back, we’re happy to put their minds at rest. Coroners aren’t subject to such federal privacy restrictions.

As Columbia attorney Jay Bender – an expert in freedom of information laws – told us, “It’s quite clear that coroners aren’t covered by HIPAA. From their comments, it suggests that they have not read the law.”

A spokeswoman for the federal Department of Health and Human Services concurred, saying unambiguously this week that “staff working within a coroner’s office, such as medical examiners and pathologists” are not covered by federal privacy laws.

Of course, now S.C. law has become another matter. If the latest ruling is allowed to stand, these reports will be placed out of reach of all but a few privileged public officials.

Johnson, the Georgetown County Coroner, was sympathetic on Wednesday, but unconvinced: “Not that the news or media don’t have certain rights to certain news or information, but it comes down to what would be the benefit of releasing that medical information?”

It’s a fair question. Why is it important for autopsy reports to be available? One obvious answer (though it might not be one that coroners or police appreciate) is that it offers the public one more way to ensure that the government employees whose salaries they pay are doing their jobs correctly. The Sumter case, as described above, involved a discrepancy between police statements and other information. Reviewing the autopsy report could have helped put those contradictions to rest and determine where the truth lay.

Other newspapers and investigators across the country have used death certificates and autopsy reports in reporting that uncovered patient abuse, physician negligence, medical errors, bungled child death investigations and even the sale of human body parts by coroner’s offices. They’ve been used to document the spread of infectious or dangerous diseases, like rabies or MRSA. They’ve been used to show that state agencies meant to protect children missed the red flags that should have pointed them to ongoing abuse. And they can shed important light on investigations that involve public safety organizations, bringing what otherwise might end as just an internal report into the public domain.

There’s no doubt a legitimate concern that making the reports open to public access could allow some unscrupulous folks to profit by publishing intimate and embarrassing details. But it’s hard to argue that there’s a great possibility of such a loathsome act occurring, as it certainly hasn’t yet. The Item won a similar case in 1989, at which point autopsy reports were determined to be records that should be released under the state’s freedom of information laws. As far as we know, that ruling set off no stampede for the reports or led to any large-scale public airing of dirty laundry.

Further, photos and videos that accompany autopsy reports are already specifically exempt from public access, a change made by the legislature in 2002 in response to concerns of Dale Earnhardt’s death in Florida. That change, in fact, is what The Item’s case hinges on.

Bender, who represented The Item, argued that if autopsy reports were medical records, as the coroner claims, and already exempt from disclosure, then there was no need for the legislature to add the exemption for autopsy photos and videos. By adding the exemption, legislators proved that autopsy reports are subject to disclosure and were in need of new rules to govern that disclosure. The judge was obviously unconvinced, but perhaps the argument will have better luck at the next level.

However the next judge rules, this is one area that would benefit from attention in the General Assembly this coming session. Legislators should clarify the intent of the law, making it clear that autopsy reports, while full of medical information, do not fall under the blanket “medical records” exemption and preventing further foot-dragging and expensive lawsuits from stalling the search for truth.