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Having doubts Attorney for examiner wants agreement vacated
ORLANDO, Fla. (AP) -- An attorney for the medical examiner who autopsied Dale Earnhardt demanded Friday that an agreement limiting access to autopsy photos be vacated unless he gets clarification on how to handle further requests for the images. The agreement reached last week between the Orlando Sentinel and Earnhardt's widow, Teresa, calls for an independent medical expert to look at the photos and then submit a report to the newspaper and the Earnhardt family. Dr. Barry Myers of Duke University is scheduled to view the photos on Monday. They then would be permanently sealed as requested by Mrs. Earnhardt because of privacy concerns. But sealing the photos violates Florida's public records law and the medical examiner's office can't legally carry it out as a custodian of the records, said Dan Eckert, the attorney for the Volusia County Office of the Medical Examiner.
Portions of the agreement "are illegal and void ... unless the law provides for an exemption," Eckert said in a motion filed Friday in state circuit court in Daytona Beach. "The court's approval of a settlement agreement cannot create an exemption where one does not exist by statute." The county wants to avoid any liability for not following Florida's well-regarded Sunshine Law that opens most records, including autopsy photos, to the public, said county spokesman Dave Byron. "We want to make sure the taxpayers of Volusia County are protected," Byron said. Sentinel attorneys David Bralow and George Gabel said they supported the county's position. "They're genuinely concerned about how to fulfill that duty," Bralow said. "I think they're taking steps necessary for whatever happens so they're not being accused of violating the Public Records Act." Earnhardt attorney Thom Rumberger didn't return a phone call. Under current law, autopsy photos are public record. However, measures moving through the Florida Legislature would prevent the public and media from seeing autopsy photos unless they can convince a judge they have good cause. The House passed its version Thursday and the Senate is to debate its version Tuesday. Other southern legislatures have passed or are working on similar restrictions. The Sentinel originally wanted its own expert to review the images for an investigation of NASCAR safety, but agreed in mediation to let the courts select an outside expert. Newspaper attorneys then became upset upon learning that a NASCAR medical expert had looked at the photos the day before they were sealed. The attorneys briefly sought to reopen the mediation Thursday, but said they were satisfied with the selection of Myers, whose expertise is in the damage done to the human body in auto crashes. The president of a Web site and an independent student newspaper at the University of Florida, the Independent Florida Alligator, are pursuing their own court cases for access to the photos. A hearing for the Alligator is set for April 5. On Friday, WebsiteCity. com president Michael Uribe asked to see 33 images taken during the autopsy of Dale Earnhardt that followed his Feb. 18 fatal crash at the Daytona 500. The images, stored on a CD, include Earnhardt's brain, fractured skull and scalp, as well as body shots showing his torso, forearm, chin, abdomen and ankle.
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