Privacy, open government and Earnhardt

By Richard A. Oppel

Dale Earnhardt’s neck snapped when his car, a mechanical missile traveling at 185 miles an hour, struck a wall at the Daytona 500 on Feb. 18. Teresa Earnhardt lost a husband, their children lost a father. We grieve for them.

NASCAR fans lost a 49-year-old superstar known for aggressive bump-and-bang driving.

“He kind of overcooked my grits,” said Darrell Waltrip in memorial to his friend.

NASCAR, a secretive organization, immediately impounded the wreckage at an undisclosed location and claimed sole jurisdiction over the investigation. Later, NASCAR reported Earnhardt’s seat belt had failed.

Tim Franklin, editor of the Orlando (Fla.) Sentinel, soon felt the anger of NASCAR fans.

I wish no further pain for Teresa Earnhardt, but Tim Franklin did nothing wrong. He used restraint and acted in the long tradition of editors wanting to print the news, and to push for reform where reform is needed.

Franklin asked that the Sentinel be allowed to have a national expert review Earnhardt autopsy photos. The Sentinel wanted to determine whether physical evidence was consistent with NASCAR’s seat-belt failure claim. The coroner’s report said the cause of death was basal skull fracture.

But not clear was whether Earnhardt died because of the seat belt failed, or because he wasn't wearing the HANS (head-and-neck support system) device. There is also the question of Earnhardt's open-face helmet, which clearly increased his risk.

Medical experts tell Franklin it is likely they’ll be able to tell cause of death from the photos.

NASCAR does not require drivers to wear the HANS device, while other major racing leagues (notably Formula One and CART) do.

When Teresa Earnhardt objected, the Sentinel modified its proposal, asking that a court only allow the Sentinel’s medical expert to view, but not take possession of, the photographs. The pictures would remain in custody of the coroner’s office.

“We express our sympathy to Teresa Earnhardt and to her family,” the Sentinel said in a published statement. “We have never once sought to publish the autopsy photographs; we have never once sought to copy the autopsy photographs.”

The records of an autopsy, including photos, are public in Florida and many states, and for good reason. Unnatural deaths should be investigated.

As columnist Howard Troxler wrote in the St. Petersburg (Fla.) Times, “There are deaths occurring in the custody of the state. There are prison inmates kicked to death by guards. There are little kids killed by their camp counselors.”

The Sentinel has investigated NASCAR safety and the deaths of three other drivers in less than a year.

Reaction of politicians was predictable. Florida Gov. Jeb Bush and legislative leaders called for more secrecy around such investigations.

U.S. House Majority Leader Dick Armey (R-Texas) wrote the Sentinel:

“Please count my voice among those who believe your efforts are outside the bounds of common decency. ... Enough is enough.”

After a day of discussion among officers, ASNE backed the Sentinel:

“It would be exceedingly unfortunate if this reasonable request were to be used by politicians to decimate the important principle of open government and open public records.”

Many newspapers stepped up NASCAR coverage as the sport’s popularity zoomed. You could argue that the Orlando Sentinel flap is a public relations disaster.

We face a growing privacy movement that all but drowns out right-to-know advocates, a reality you’ll hear more about this at the convention.

The theme of the convention is leadership, and Tim Franklin showed leadership in pursuing the investigation and explaining his purpose.

Did the message get out? One veteran ASNE member who is also a NASCAR follower told me, “Interesting the way our business works. When I see the totality (of Franklin’s argument), I have no trouble with what the Sentinel now wants.”

The message was worth explaining in columns and on editorial pages across the country. If we wait for “safe” examples to use in explaining open government concerns, we’ll lose open government.

Leadership means facing our readers straightforwardly, in good times and bad.

*****

A note: This is my final column for The American Editor. Thank you for the privilege of serving as president of ASNE in the past year.

Oppel, ASNE president, is editor of the Austin (Texas) American-Statesman.