Jessica Bennett at Newsweek brought my attention to a story about the family of the killer whale trainer (Dawn Brancheau) who was killed while training the whale at SeaWorld:
Brancheau’s family announced this week that they would seek an injunction to protect the release of the death imagery, captured by SeaWorld’s surveillance cameras on Feb. 24. And though the video has not yet been publicly released, it’s presently in the hands of the Florida Orange County Sheriff’s Office, which is investigating the woman’s death.
According to FoxNews:
The Orange County Sheriff’s Office, who now has the video, has received several calls from sources trying to obtain copies of the video, the Orlando Sentinel reported.Once the Orange County Sheriff’s Office concludes its investigation, the material would become public under Florida law. . . .
Brancheau’s family said through a spokesman that public airing of the killing would only worsen their grief.They could seek a court injunction to stop the release, at least temporarily. The family has been consulting the lawyer who represented Dale Earnhardt’s widow in a court fight over his autopsy photos.
I believe that the Brancheau family has a good case. They want to prevent the sad events that happened to the family of Nikki Catsouras, whose gruesome accident death photos started appearing all over the Internet. In that case, the court held that the family could bring common law privacy claims against the police department for improperly leaking the photographs.
In this instance, the video might be required to be disclosed by public records law, so tort privacy claims would likely not be available against the government if they conflicted with state disclosure obligations or against others who disseminated the video post-disclosure (due to First Amendment protection).
Thus, the family’s redress could come in two possible forms: (1) a provision of the public record law that would not allow for the disclosure of the video; or (2) a constitutional right to information privacy challenge.
Regarding Florida public records law, the Earnhardt Family Protection Act prohibits the disclosure of autopsy photos. It was enacted because of concerns over the distribution of autopsy photos of race car driver Dale Earnhardt, who died in a crash on the race track.
The Earnhardt Family Protection Act, Fla. Stat. ch. 406.135 (2001), provides, in part:
A photograph or video or audio recording of an autopsy held by a medical examiner is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that a surviving spouse may view and copy a photograph or video recording or listen to or copy an audio recording of the deceased spouse’s autopsy. . . .
The law doesn’t completely bar disclosure of autopsy materials — it allows them to be disclosed pursuant to a court order:
In determining good cause, the court shall consider whether such disclosure is necessary for the public evaluation of governmental performance; the seriousness of the intrusion into the family’s right to privacy and whether such disclosure is the least intrusive means available; and the availability of similar information in other public records, regardless of form.
The law was upheld against a constitutional challenge in the Florida courts. See Campus Communications, Inc. v. Earnhardt, 821 So.2d 388 (Fla. App. 20202), review denied 848 So.2d 1153 and cert. denied, 540 U.S. 1049.
The Brancheau family has a good chance of blocking the release of the video under this law.
Second, the Brancheau family could raise a constitutional right to information privacy challenge. The constitutional right to information privacy provides protection if a person has a privacy interest, if government officials violated that interest by disclosing personal information, and if the privacy interest isn’t outweighed by the government’s interest in disclosure.
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. This post was originally posted on his blog at LinkedIn, where Solove is a “LinkedIn Influencer.” His blog has more than 950,000 followers.
Professor Solove is the organizer, along with Paul Schwartz of the Privacy + Security Forum (Oct. 24-26, 2016 in Washington, DC), an annual event that aims to bridge the silos between privacy and security.