COLUMBIA - Are autopsies medical records or public records?
South Carolina's Supreme Court will begin grappling with that question Wednesday, when it hears a lawsuit by a Sumter County newspaper against the county's coroner.
The Item newspaper wants the high court to toss out a lower court's ruling that said autopsies do not have to be made public because they do not fall under the state's Freedom of Information Act.
The coroner said autopsies should be considered medical records that are exempt from public view. The newspaper said autopsy reports are investigative tools, not medical records.
Open records advocates said the Sumter County case is an example of government officials making it harder to get public documents.
It's a debate that is far from settled nationally. About 15 states across the U.S. allow the public release of an autopsy report. About a half-dozen other states allow the release of reports not being used as part of a criminal investigation. The rest severely restrict what's released or don't give any information from the reports, according to the Reporters Committee for Freedom of the Press.
Keeping autopsy records secret closes off an important tool to make sure police agencies do the right thing when they investigate deaths, especially people shot and killed by officials or who die in custody, said Frank LoMonte, executive director of the Student Press Law Center.
"There is any number of cases over the years where journalist watchdogs have been able to shed light on suspicious circumstances only by having access on those records," LoMonte said. "And those records don't just show culpability, they can clear someone, too."
Autopsy reports have been a sensitive topic since the death in Florida of NASCAR driver Dale Earnhardt during a race in 2001. Florida lawmakers quickly amended laws to make sure the state's broad Freedom of Information Act didn't include pictures from Earnhardt's autopsy because they feared they might end up on the Internet. A number of states followed, some restricting the release of the written reports, too.
"It is really, really hard to draw a statute that says the only people can get public documents are people with good intentions. You have to decide what is more important - public accountability or the death investigation system or the possibility people might be traumatized," LoMonte said.
In Georgia, autopsy results released to reporters last year helped explain why investigators in a closely watched case concluded a teenager found dead inside a rolled-up gym mat was the victim of a freak accident. The death of 17-year-old Kendrick Johnson at his school in Valdosta, Ga., drew national attention. His family still rejects the official findings that Johnson got stuck upside down in the mat while reaching for a shoe.
The four-page autopsy report formed a final piece of the puzzle for Lowndes County sheriff's detectives, who ruled out foul play and closed the case last May. A medical examiner for the Georgia Bureau of Investigation found no external or internal injuries aside from a few tiny scrapes and tears on the teenagers' hands. She concluded Johnson died from "positional asphyxia," meaning his body was stuck in a position that prevented him from breathing.
In the South Carolina case, the newspaper requested the autopsy report after 25-year-old Aaron Jacobs was shot by police as they searched for a carjacking suspect.
Sumter County Coroner Harvin Bullock refused, saying that he was a health care provider and that releasing the report would violate medical privacy laws.
At the time, South Carolina Press Association Attorney Jay Bender called Bullock's claim of being a health care provider "absurd" since coroners only treat dead people.
The newspaper obtained the autopsy report from another source, and it contradicted several things that investigators had told the public after the shooting.
Circuit Judge Clifton Newman, in a decision in July 2012, sided with Bullock, saying he was not required under the Freedom of Information law to release the report.
Bill Rogers, executive director of the South Carolina Press Association, said South Carolina's open records laws have remained mostly unchanged in recent years, but public officials are becoming bolder about breaking them. A new tactic is to threaten people making public records requests with thousands of dollars of fees for gathering the information, then stonewalling challenges.
Columbia television station WIS was told it would cost almost $30,000 to gather emails from a Fairfield County administrator and other documents. The station was investigating whether the administrator sent pornography from his county computer. The station eventually got the information from another source.
A bill before the Legislature would prohibit agencies from charging for records that are available digitally and limit copying fees to market prices instead of the 25 cents or more a page some agencies try to charge. But a similar bill struggled last year.
LoMonte said he hoped this is a low point for public records and government openness will soon begin to improve again.
"We're in this time of so much anti-government skepticism that it doesn't make sense," LoMonte said. "After all, the best way to dispel skepticism is to put everything out in the open."