Orlando Sentinel Editor Tim Franklin addressed more than 100 participants
in Tampa on Feb. 23 at the Pew/IRE workshop "Tapping New Data Territories."
If there's one thing you could say about the people across America who were
emailing me last March, it's that they certainly weren't mincing their words.
"Look under your car before you get in," suggested Bob Harker of Clarendon,
New York. "Make sure the back door is locked. Look over your shoulder. Is this
a death threat? Nah."
Another email writer, Marilyn Warga, dispensed with any pleasantries and got
straight to her point. "Die! Die! Die! You sucker," she commanded. "I want to
see your autopsy photos NOW."
A third writer, Mohay Sparks, was thoughtful enough to inquire about my family.
"Hey Franklin, is your Dad dead?" he asked. "If so, or when he does, can we
see his dead corpse?"
These emails - and thousands more like them - came from NASCAR fans across
the country who were nearly blind with rage over the Orlando Sentinel's request
to gain access to the autopsy photos of racing icon Dale Earnhardt.
The vast majority of these fans were appalled that images of Earnhardt - sprawled
on a steel coroner's table - might be published in the Sentinel or placed on
the Internet, for all the world to see.
Unquestionably, Earnhardt's status as an American folk hero -- and the pure
shock of "The Intimidator's" almost inconceivable death on Daytona's high banks
-- fueled the emotional onslaught from race fans.
But the intensity of their reaction was symbolic of a much larger issue, and
one that affects everyone here today.
There's a volatile confluence in America today. Fundamental, democratic principles
are bumping headlong into new technology. Here are the ingredients: a burgeoning
privacy movement, an understandable concern about national security, the ever-widening
reach of the Internet, and the right of the public to have access to the taxpayer-supported
work of our government officials - one of the fundamental tenets of our democratic,
I believe that we are at the crossroads of a watershed moment in our nation's
evolution, as our elected leaders and the courts react to set the boundaries
of this new playing field in the Internet Age.
Because of concerns about privacy and national security - and the easy availability
of information on the Internet - we are seeing an unprecedented rush to close
information to the public.
Essentially, the mood in the nation seems to have shifted from "the public
has a right to know" to "how much does the public need to know?"
Indeed, the actions taken by our elected officials and the courts in the next
few months could fundamentally alter how open the work of our government will
be. The stakes for our citizens couldn't be higher. And, regrettably, our industry
has done little to inform our citizens, or our elected representatives, how
these changes could affect their lives.
I still have the bruises from my own controversial public records fight last
year. So, I'd like to use that as a case study for these larger issues.
In the fall of 2000, the Sentinel set out to investigate why three NASCAR
drivers - Adam Petty, Kenny Irwin and Tony Roper - had all died in race crashes
in just a few short months.
It was an obvious story for the newspaper to pursue, with obvious questions
that needed to be asked: Was there a common link to the drivers' deaths? If
so, could anything have been done to prevent them? Or were these just three
random, horrible accidents that happened to occur in an unusually short time
After nearly six months of reporting, Ed Hinton, our auto racing writer, determined
that the three young drivers all died of exactly the same injury - a skull fracture
caused by the violent whipping of their heads when their race cars slammed into
concrete retaining walls at high speeds.
That revelation was significant, but Hinton discovered something else: A head
and neck restraint system, known as the HANS device, can prevent the very type
of skull fracture the three drivers suffered. And while other professional racing
leagues had mandated that drivers use the HANS device, NASCAR - America's most
popular racing organization - did not.
On Sunday, February 11, the first story in Hinton's three-part series appeared
on the front page of the Sentinel. The headline: "NASCAR idles while drivers
die; Racing officials fail to mandate lifesaving device."
One week later, in a prophetic and fatal turn of events, NASCAR's biggest
star was killed on the last turn of the last lap of the Daytona 500, with a
national television audience watching.
Earnhardt's death was met with disbelief, grieving and candlelight vigils
across the country. We, too, at the Sentinel were stunned that Earnhardt had
become the fourth NASCAR driver to perish in nine months. But his death only
intensified our resolve to find answers.
Early indications from the Volusia County Medical Examiner were that Earnhardt
died from exactly the same injury as the other three drivers - a skull fracture
caused by violent head whip.
But five days after the accident, NASCAR and Daytona's chief doctor dropped
a bombshell - they said Earnhardt's seat belt had broken, an event almost unheard
of in NASCAR's history.
The explanation had to be checked out. Either the seat belt and safety systems
of NASCAR's race cars were dangerously flawed, or the racing league was trying
to divert public attention away from its failure to mandate a safety device
that could have saved the sport's brightest star.
The Sentinel immediately called medical experts about the broken seat belt
theory. They all told us that they could draw some conclusions from the medical
examiner's report, but couldn't say with relative certainty how Earnhardt died
without reviewing his autopsy photos. The photos would show whether Earnhardt
had suffered injuries to the face and chest, and reveal other telltale signs
of whether he died from a broken belt - or not.
That's why we filed our public records request - so that one of the nation's
top head trauma experts could examine Earnhardt's autopsy photos and draft a
report that would tell us not only how he died, but whether his death could
have been prevented.
The events that occurred next have not been widely reported, but are important
to the context of this story.
The day after we filed our public records request, Teresa Earnhardt's attorney
called our lawyer and asked if we would consider a settlement. Would we agree
not to publish the photos in return for gaining access to them? Yes, we said,
because we didn't want to publish the photos anyway. We simply wanted a medical
expert to view the photos so that he could draw an informed conclusion about
Earnhardt's cause of death.
The negotiations with Mrs. Earnhardt's lawyer continued over five days, and
her attorney even drafted an agreement, which we signed. We were told it was
a done deal.
Then, inexplicably, Mrs. Earnhardt fired her attorney and hired a new one.
Less than 48 hours later, without any contact from her or her attorney, Mrs.
Earnhardt held a press conference at a NASCAR event to denounce the Sentinel
on national television. She called on NASCAR fans to "let your voices be heard."
Chaos ensued. The Sentinel was flooded with more 15,000 angry emails, letters
and telephone calls. Our communications systems were swamped. Dozens of death
threats poured in, several deemed serious enough to turn over to the Orlando
police. Law enforcement authorities regularly patrolled my home, and company
security escorted myself, the publisher and our attorney to court hearings.
The situation surrounding our court-ordered mediation with Mrs. Earnhardt was
so tense that bodyguards surrounded the three of us into and out of the Volusia
County courthouse, and we had to be escorted between Orlando and Daytona Beach.
We also had a major public relations problem on our hands, to say the least.
The vast majority of NASCAR fans who were contacting the Sentinel mistakenly
believed that we wanted to PUBLISH the autopsy photos. Very few of them had
any idea that we had just spent six months investigating NASCAR driver safety.
Meanwhile, the nation's press clamored to cover this emerging courtroom drama
that had a made-for-television storyline: a celebrity death, an attractive and
grieving widow, spectacular crash footage and a visceral standoff between privacy
rights and public access.
Suddenly, the Sentinel became the story. We were bombarded with dozens of
interview requests from television, radio, newspaper and Internet news organizations.
We had to get our message out - that we were trying to make NASCAR racing safer,
not invade the Earnhardts' privacy. Four driver deaths in nine months was too
much of a trend to ignore.
Despite the relentless protests and intense media glare, we pressed our case
and eventually reached an out-of-court settlement with Mrs. Earnhardt. The settlement
allowed us to practice good journalism and to continue our investigation of
NASCAR safety. It DID NOT permanently seal Earnhardt's autopsy photos, as her
The settlement allowed Dr. Barry Myers of Duke University, a nationally renowned
head trauma expert, to examine Earnhardt's autopsy photos under court supervision,
which addressed Teresa Earnhardt's privacy concerns. Dr. Myers concluded that
Earnhardt did, in fact, die from a skull fracture caused by violent head whip,
the same as the other three drivers. Dr. Myers also concluded that a broken
seat belt had not caused Earnhardt's death.
The Myers report, and the controversy surrounding our request, did lead to
some major, tangible improvements in racing safety. Late last year, NASCAR mandated
that drivers wear a head and neck restraint system. Following a race crash in
June that was eerily similar to Earnhardt's, Jeff Gordon said such a device
saved his life. And NASCAR conducted its most extensive investigation ever of
Earnhardt's crash. As a result, black boxes, or crash data recorders, were mandated
for all NASCAR race cars. Just last month, NASCAR unveiled a new seat that better
protects drivers in crashes, and protects the head and neck.
NASCAR issued its own report contradicting Dr. Myers' findings. NASCAR concluded
that a broken seat belt had contributed to Earnhardt's death. But, NASCAR's
own investigators conceded that they didn't have all the evidence when they
drew their conclusions - they hadn't examined the autopsy photos.
So what did we all learn from the Earnhardt case? What does this case mean
for the future of open records? We learned many lessons.
First, we learned that when a debate involves open records versus privacy,
especially the privacy of a beloved sports figure, the privacy forces are loud,
powerful and at times, threatening. Privacy is a paramount concern to the American
public, and by extension to those government officials who seek to benefit from
politically popular causes.
Second, we learned that public access arguments have been forever reshaped
by the Internet Age. Even after we succeeded in getting the message out that
we had no intention of ever publishing Earnhardt's autopsy photos, our critics
still made the argument that they would end up on the Internet.
We proposed a solution that likely would have kept the autopsy photos off
the Internet. But that fear still resonated with the public and Florida politicians,
who hastily passed legislation last spring prohibiting access to autopsy photos
without judicial approval. We still believe there are many legitimate reasons
to allow public access to autopsy photos, and have challenged the constitutionality
of the new law in Broward County Circuit Court. We've been joined in that effort
by the South Florida Sun-Sentinel, ChicagoTribune, and The New York Times Co.
Several other major news organizations and professional groups are expected
to join our case in the next few days. After nearly a year lingering in the
court system, that case is scheduled to be heard early next month.
Concerns about personal privacy versus public access in the Internet Age were
already strong before Earnhardt's death. Now, in the wake of the September 11
terrorist attacks, we are confronted with a broad move toward secrecy and restricted
public access that could reshape how Americans do business and monitor their
government for decades to come.
Here are some stark facts, contained in a poll conducted in late 2000 by the
American Society of Newspaper Editors and the First Amendment Center, months
before Earnhardt's death and the terrorist attacks:
- Ninety percent of respondents supported open public records, but only 22
percent supported making them available on the Internet.
- Eighty-nine percent said they were concerned about their personal privacy,
the same number as those who said they were concerned about crime.
- Sixty percent believed that laws guaranteeing privacy should be strengthened,
even if Americans lose access to public records.
- Fifty-six percent would support tighter privacy laws, even if they hinder
Needless to say, the media industry has its face against the wind of public
opinion at a critical moment in the history of our democracy, one brought on
- in part -- by a new medium still in its infancy. These concerns could just
be the public's unease with the Internet and its still-evolving legacy. This
may be a temporary problem fueled by people who are frightened by the Internet.
But lawmakers read polls. They see some of the numbers that I just cited.
What direction do you think they'll move in? They have the opportunity to use
the cover of privacy concerns to shut off access to all sorts of government
Not only do they have the motivation of privacy, they also now have the political
shelter of national security. While Earnhardt put into sharp focus the issue
of privacy rights vs. public access, the terror attacks have thrust us into
deeper, uncharted waters.
Consider for a moment the situation in Florida right now. A staggering 126
bills already have been introduced in the current legislative session to weaken
- and in some cases completely gut - the state's Sunshine Law.
One measure would change the presumption that records are open, to a presumption
that they're closed. One would shut off utility records - all because a legislator's
friend was embarrassed after being exposed for wasting water. One would close
so-called "adverse incident" reports filed by doctors, which detail catastrophic
mistakes with patients.
Already, lawmakers have declared the right to hold secret House and Senate
committee meetings when discussing "state security issues."
We've seen this movement on the national level as well. Federal agencies now
are imposing stricter standards in reviewing hundreds of thousands of Freedom
of Information Requests - officials no longer have to show that disclosure would
cause "substantial harm" before rejecting a request. At least 15 federal agencies
have pulled potentially sensitive information off the Internet. Attorney General
John Ashcroft said that while "a well-informed citizenry" is essential to government
accountability, national security should be the priority. He sent a memo in
October, telling federal officials they could be assured of Justice Department
backing if they resisted FOI requests.
Without question, we are living in uncertain times and there are genuine security
issues to address. Nobody wants terrorists to get a playbook to wreak havoc
from public records.
But we also should be careful not to cede basic principles of our democracy,
like open government. To quote that other, better-known Franklin-Ben-"Those
who would give up essential liberty, to purchase a little temporary safety,
deserve neither liberty nor safety."
As an industry, we must get serious about this issue NOW. We must educate
our readers about why open government and public records are critical to our
way of life.
We must show real-life examples of how public records benefit the public:
How crime records can help make neighborhoods safer. How hospital and nursing
home records can be used to protect our loved ones who are sick or old. How
public health records can identify and prevent the spread of disease. How real
estate records can help people when buying a home. And, how autopsy records
can help experts and the media to prevent future injuries and death.
We can't simply espouse our Constitutional right alone as the basis for getting
access to records. We've got to tell our readers why we want the records and
what the greater good is in obtaining them. We need to engage in an ongoing
dialogue with our readers about the benefits of open government.
Toward that end, the Florida Society of Newspaper Editors has taken some significant
steps in recent months.
We retained a former state senator to lobby the legislature on open government
matters. Our most visible effort will come March 10th, which FSNE has designated
"Sunshine Sunday." On that day, FSNE is asking every newspaper in Florida to
run editorials about the importance of open government to people's lives. Sunshine
Sunday is being pegged to the birthday that week of James Madison, the father
of the Constitution and one of the most ardent supporters of the First Amendment.
Moreover, some Florida newspapers, including the Sentinel, are preparing to
run public service announcements about the benefits of public records to consumers.
This is a call to journalistic arms. We can't remain complacent about these
issues any more. If we are, we lose. And more importantly, our democracy and
our people lose.