D.C. Council Should Reject Medical Examiner Secrecy Proposal: Says Open Government Coalition

Fritz Mulhauser | November 3, 2021 | Last modified: November 17, 2023

UPDATE: Autopsies are a vital source for the press. See the December 2021 letter from Reporters Committee for Freedom of the Press with dozens of examples of important stories using death investigation records and urging the Council to reject the proposed bill. They wrote, the bill “hinders journalists from accessing key investigative tools they have traditionally relied upon, thwarts important reporting on matters of public interest, and inhibits the media from holding the government and law enforcement accountable.” Letter is here.

Records of death investigations by the D.C. medical examiner—records that are largely public in 31 states—will be removed from access via the D.C. Freedom of Information Act (FOIA) and will be available to the public only by court order under a pending bill in the D.C. Council.

These are drastic and unnecessary steps, according to Coalition comments to the Council urging that the bill be rejected. The mayor’s proposal, bill B24-203, “would create a presumption against disclosure and put on any requester the nearly insurmountable burden of demonstrating to a Superior Court judge a need for the records,” according to Coalition President Thomas Susman and board member Robert Becker.  

The Coalition favors clarifying the law so that public access via FOIA requests will continue. Current law emphasizes the broad District of Columbia policy of release including safeguards for privacy and law enforcement concerns unless release is necessary to serve broader public interests. That’s the time-tested legal principle, applied by every D.C. agency dealing with requests for its records. It should be strengthened not discarded.

Medical examiner death investigation reports are often of wide interest. They deal with results of examination of persons who die a sudden, unexpected, suspicious, or violent death. (The D.C. Office of the Chief Medical Examiner conducted about 930 full autopsies in 2019, according to its most recent annual report.)  As the National Academy of Sciences warned in its landmark report on forensic sciences:

Sensitive cases, such as police shootings and police-encounter deaths, jail and prison deaths, deaths in public institutions, and others, require an unbiased death investigation that is clearly independent of law enforcement.

National Research Council. 2009. Strengthening Forensic Science in the United States: A Path Forward. Washington, DC: The National Academies Press.https://doi.org/10.17226/12589.

There is no question these are official records, showing methods and results of government employees’ medico-legal investigations on behalf of the state. Nor should there be any question they’re not subject to safeguards for doctors’ office records. No medical care is involved, and examiners’ offices are not “covered entities” under federal health records privacy rules, called HIPAA. The AMA Journal of Ethics concurs that medical examiners are simply not covered by HIPAA. The Coalition disagrees as well with the opinion in testimony of the general counsel of the medical examiner’s office that death investigation records should be covered by general medical ethics rules.

In isolated instances, courts and legislatures have supported some limits on autopsy report release (often photos or narrated physical examinations, such as in 10 states, according to Coalition tally of data from the state-by-state legal encyclopedia compiled by Reporters Committee for Freedom of the Press). But even there the general importance of public release was crystal clear. Celebrated examples include:

• An expert proposed by the press was allowed access to Dale Earnhardt autopsy photos after a Florida court agreed about the public interest. His findings disproved official conclusions.  Legendary race driver Earnhardt in February 2001 hit the wall at Daytona at 150 mph and died, setting off a storm of concern that NASCAR was missing safety needs. NASCAR officials got to look at autopsy photos, then locked away Earnhardt’s car, helmet and the broken seat belt they blamed, adopting cause-of-death findings from an inexperienced medical examiner. Earnhardt’s widow got a sealing order and the Florida legislature under a hail of calls from fans quickly passed the “Earnhardt Family Protection Act” sealing all autopsy photos statewide, overriding openness guarantees in the state constitution. After press court intervention yielded an access order for the Earnhardt photos, the expert’s review showed both the official examination wrong in its conclusions and NASCAR incorrect in the limited safety implications it would admit. (See the full story here and here.)

• Even a unanimous Supreme Court, while withholding Vince Foster death photos, did so only after rigorous review of public interest in the details. After federal officials denied access to photos of the scene of White House lawyer Vince Foster’s July 1993 suicide at the Ft. Marcy Potomac overlook, the courts affirmed his family interest in keeping them private. In its opinion, however, the Supreme Court in National Archives and Records Admin. v. Favish followed the requirement in FOIA law to consider whether release was required by public interest sufficient to override any privacy issue. The Court decided unanimously against release only after careful weighing of facts such as the five prior independent investigations.

Thus, the Coalition disagrees with the medical examiner’s testimony that the new proposal “balances public interest.” In fact, it does the opposite. It withdraws medical examiner reports from FOIA coverage including the law’s public interest balancing test (honed in thousands of court opinions) and access to zero-cost appeal of denials. And the new bill substitutes only a lengthy and expensive court action where a requester must meet a heightened “compelling public interest” test as the route for access.

In contrast, the Coalition concludes this bill is simply unnecessary, and 31 other states have the right approach that D.C. should also follow.

D.C. doesn’t need new law; but practice here should improve so that the medical examiner office applies existing FOIA law correctly. It’s a sad fact that FOIA requests for autopsy reports face routine hostility despite signals from court decisions that blanket denials won’t hold up.

• The Washington Post is still waiting after seven months to review the examiner’s report on the death investigation of Capitol Hill Police Officer Brian Sicknick. In April the Post reported their effort to understand conflicting accounts of the death of Officer Sicknick since “exactly what caused Sicknick’s death has remained unclear for more than 14 weeks.” House managers in then-President Trump’s second impeachment said Sicknick was killed by rioters during the January 6 insurrection (citing the New York Times, which later withdrew its report). The D.C. medical examiner said in brief interviews Sicknick died of natural causes related to two strokes a day later. The office denied the Post FOIA request, with one sentence of familiar explanation — again calling the entire file “medical records” exempt from FOIA on privacy grounds. In June, lawsuit papers challenging the denial included a reporter’s account that a D.C. official told him “they will never release an autopsy report unless ordered to by a judge,” a view totally at odds with the D.C. policy found in FOIA emphasizing record release. After repeated delays by the District, the case has not yet been heard in Superior Court.

• It took three years until a judge overruled D.C. opposition and ordered release of the report on the death of a Russian dissident in a D.C. hotel room. Beginning in 2016, Radio Free Europe sought release via FOIA of the examiner’s findings about the 2015 death of Mikhail Lesin, a former Russian official and RT television network founder. The examiner’s brief public report of accidental death contrasted greatly with FBI and MPD accounts. RFE court papers in their lawsuit challenging the D.C. FOIA denial explained that finding was “facially implausible” and a “risible explanation” that had been “widely questioned.”  RFE requested the examiner’s materials to clarify the discrepancy, in view of global concern about a series of suspicious overseas deaths of Russians who fell out of favor with President Vladimir Putin. Associate Judge Hiram Puig-Lugo in D.C. Superior Court in 2019 ordered release, rejecting the agency wholesale denial and familiar District claims that everything was exempt as a medical record, and that no public interest offset family privacy concerns. The resulting RFE story on the 149-page report is here. RFE said, “Despite the official conclusion that his death was ‘accidental,’ Lesin’s links with Russia’s ruling elite, the bizarre circumstances of his demise, and a string of strange deaths of Russians across the globe have fueled persistent speculation that he may have been killed.”

The Coalition has successfully challenged other D.C. agencies’ extreme views of privacy protection, for example in a complaint leading to the advisory opinion of the Office of Open Government that MPD over-redaction of body-worn camera video released under FOIA has no sound legal basis.

The issue of accessing autopsy files needs similar in-depth review by the Office of Open Government and more case opinions from the courts before jumping to any new legislation. The mayor’s letter accompanying the bill cites no significant problems, only a policy preference that “the decision to give public access to the intimate details of a decedent should generally be in the hands of the decedent’s family,” which differs from the considered judgment of 31 states.

More secrecy, and more difficult procedures for the limited remaining access, are not the directions the Council should take.

The Des Moines Register put it this way, in a 2016 editorial criticizing the Iowa “Earnhardt law” that followed the Florida example and sealed medical examiner records there:

Government records that detail the precise manner in which people die can have a profound, positive effect on public policy and public safety. They can also bring to light facts that provide a small measure of justice for the deceased. But they can do all of this only if they are open to public inspection.

No public witnesses testified at the brief Council hearing May 3, 2021, on Bill 24-203 that would make autopsies even harder to access here than they already are. The Coalition has spoken how FOIA access and privacy protection are compatible under current law with proper oversight and no new legal scheme is needed. But the conversation needs more voices; let the Council know your views at judiciary@dccouncil.us.