Next week is Sunshine Week, March 11-17. The annual observation was created by the American Society of News (formerly Newspaper) Editors to spotlight the importance of public access to government information in a democratic republic, allowing citizens to be the watchdogs over their elected and appointed representatives.
The sunshine label was derived from a quote by Justice Louis Brandeis, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
The point is that for the public to be able to perform its democratic role in voting into or out of office the most suitable personages, they must be kept informed as to how well or ill the current office holders and their minions are doing their jobs.
Which brings us to the current tension between the right to know and the right to privacy.
Earlier this year a district court judge ruled in favor of a request from The Associated Press and the Las Vegas Review-Journal to obtain copies of the autopsies of the 58 victims of the Oct. 1 Route 91 country music show shooting. The judge did require that the names of the victims be redacted.
A few weeks later another judge, at the behest of the widow of off-duty police officer Charleston Hartfield who was killed at the concert, ruled that his autopsy report was private and demanded the news outlets return it. How they were to determine which one was his is unclear.
A three-justice panel of the Nevada Supreme Court quickly stepped in and basically ruled that once the cat’s out of the bag it can’t be put back. It left unsettled the question of whether autopsy reports are public records under the law in the first place.
The court opinion, penned by Justice Kris Pickering, relied on a U.S. Supreme Court ruling in a 1989 case involving a Florida newspaper called the Florida Star. The paper published the name of a rape victim, even though Florida law makes it “unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense …”
That court ruling said the Star’s intern reporter lawfully copied the information from records made available by the local sheriff’s office and the paper could not be punished because the sheriff’s office failed to follow its own policy of redacting the names of rape victims.
Pickering wrote, “For purposes of our analysis we assume, without deciding, that the Hartfield Parties had a protectable privacy interest in preventing disclosure of Mr. Hartfield’s redacted autopsy report.” The key phrase is “without deciding.”
The question remains: Are records prepared by a public official using public funds to determine a public safety matter covered by the state’s strong public records law that states records are available to the public “unless otherwise declared by law to be confidential …”?
Back in 1982 then-Attorney General Richard Bryan issued a non-binding opinion that they are not, writing, “An autopsy protocol is a public record, but is not open to public inspection upon demand, because disclosure would be contrary to a strong public policy …”
That public policy was described as the expectation that “the secrets of a person’s body are a very private and confidential matter upon which any intrusion in the interest of public health or adjudication is narrowly circumscribed.”
But does that privacy expectation carry over beyond death and supersede the public’s right to observe how well their public servants are serving them?
The closest the state Constitution comes to addressing this question is when it states that victims of crimes are to be “treated with fairness and respect for his or her privacy and dignity” and defines a victim of a crime as including a deceased person’s family members.
All the Nevada high court panel did was say the media obtained the records legally and prior restraint would be unconstitutional. It did not say whether in the future the coroner could refuse to release autopsies.
We believe the courts or lawmakers should make a final determination in favor the public’s right to know and let the sun shine in.
It is analogous to the debate currently underway in Florida over what information should be made public about what law enforcement did prior to and during the tragic high school shooting that killed 17.
The public needs to see how well public officials are doing their jobs … or not.
A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.
Nevada Supreme Court