Delaware court: Right to privacy ends at death
By The Associated Press 06.02.05 DOVER, Del. - A Chancery Court judge has denied a preliminary injunction aimed at preventing the release of autopsy records on a Rehoboth Beach businessman found dead in a car fire, ruling that the right of privacy in Delaware does not extend beyond death. State officials nevertheless said yesterday that they would not release the autopsy information, pending an appeal to the state Supreme Court. The ruling by vice chancellor Stephen Lamb in Wilmington came May 27 in a lawsuit filed by the widow of Duane Lawson, 40. Lawson, owner of Gold's Gym in Rehoboth Beach, was found dead Feb. 15 in a burned BMW in the parking garage of the Henlopen Hotel. Following subsequent requests by the news media for autopsy records, Lawson's widow, Lisa, filed a complaint seeking to prevent authorities from releasing information about the case. Named as defendants were officials with Department of Health and Social Services, the state medical examiner's office, the Rehoboth Beach police department, the state fire marshal's office, and the state fire prevention commission. The Associated Press and two dozen Delaware members of the Maryland-Delaware-DC Press Association sought to intervene in the case, arguing that the circumstances surrounding Lawson's death were a matter of public concern and that the autopsy report and related documents were public records. Lamb denied the motion on procedural grounds and said the media could file a lawsuit if they wanted to challenge denial of Freedom of Information Act requests. DHSS spokesman Jay Lynch said officials would not release the information because Lamb had agreed to issue a 10-day stay of his decision yesterday morning at the request of Lisa Lawson's attorney, John Phillips Jr., who plans to appeal to the state Supreme Court. "We're going to wait and see what happens with the temporary stay and see how the Supreme Court thing goes," Lynch said. Phillips did not immediately return a telephone message from the Associated Press yesterday. Lamb ruled that Delaware laws regarding vital records such as death certificates, protected health information, and the operation of the state medical examiner's office do not prohibit the release of autopsy information. He declined, however, to rule on whether autopsy information is exempt from release under the state's FOIA, saying the parties in the lawsuit had agreed that such information is indeed exempt. "As this issue is not in dispute, the court expressly makes no findings or rulings on this issue," the judge wrote. In denying a FOIA request from the Associated Press last month, attorney Walter Speakman Jr., representing Rehoboth Beach police Chief Keith Banks, said the department was withholding the information pending Lamb's ruling, even though "Chief Banks has taken the position that the autopsy report is a public record." "The court must have misunderstood me on that point," Speakman said yesterday. Lamb also rejected Lisa Lawson's argument that even if there is no statutory right to privacy in autopsy information, such information is subject to a common law right of privacy. Citing various court cases, including a 1992 Delaware Supreme Court ruling that recognized a common law right to privacy, as well as conflicting Michigan court cases involving autopsy information, Lamb declared that "the overwhelming weight of authority holds that a claim for invasion of privacy cannot be brought by a decedent's family." Lamb said a 1998 Washington Supreme Court ruling that immediate relatives of a dead person had a privacy interest in autopsy records was based on previous court interpretations of the federal FOIA statute, not common law. "Thus, their holdings are not dispositive as to whether the common law right of privacy survives death," wrote Lamb, who also noted that the federal FOIA cases involved attempts to force the government to release information, not, as in the Lawson case, to prevent the government from releasing information. "The distinction is crucial," he wrote. "Freedom of Information acts ... are based upon strong public policies favoring citizens' access to public records 'in order that the society remain free and democratic.' " The judge also noted that the Washington state ruling, and other cases on which it was based, involved photographs, not written records, and that Delaware's FOIA law likewise specifically exempts autopsy photographs from release. The implication of that distinction, he said, is that "the autopsy report and related information not covered by statutory exemption should be given less privacy protection." "Thus, the court holds that the majority rule - that the common law right of privacy does not survive the death of its holder - is the law of Delaware." [Non-text portions of this message have been removed] ------------------------ Yahoo! Groups Sponsor --------------------~--> Give underprivileged students the materials they need to learn. Bring education to life by funding a specific classroom project. http://us.click.yahoo.com/FHLuJD/_WnJAA/cUmLAA/TySplB/TM --------------------------------------------------------------------~-> -------------------------- Want to discuss this topic? 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