Opinion writer

This is a bad idea:

Despite a strong push to keep the records public in Tennessee, two Republican lawmakers are sponsoring a bill that would make the results of autopsies conducted by the state and county medical examiners secret.

The legislation is sponsored by Rep. Eddie Smith, R-Knoxville, and Sen. Joey Hensley, R-Hohenwald, a physician who also is the medical examiner for Lewis County. Both say having the forensic findings available to the public can be difficult for family members of the dead and means that family medical conditions may become public.

Although autopsy reports can be sensitive, critics of the bill say the reports are also vital resources to help ensure government accountability and that those in the criminal justice system adequately perform their duties, especially when suspicious deaths are involved.

“It’s important autopsy reports remain open in cases when there are questions about the death,” said Deborah Fisher, executive director of the Tennessee Coalition for Open Government. “This bill closes everything, things that can be used for accountability.”

The Nashville Scene reported Tuesday that the bill’s sponsor in the Tennessee House of Representatives has said that he plans to narrow the scope of the bill, though he hasn’t offered specifics, and it still seems as though the main aim here is to prevent the media from accessing autopsy reports. (Fun aside: Not only is the bill’s sponsor in the Tennessee Senate a county medical examiner himself, but also, in divorce papers, his ex-wife alleged that he was sleeping with one of his nurses, who happened to be his second cousin, and was also his patient — he was prescribing her painkillers. The avowed Christian gained national notoriety a few years ago for sponsoring a bill that would have made it illegal for public school officials to discuss homosexuality in front of students — the “don’t say gay” bill.)

As someone who just wrote a book about what can go wrong when a state’s death investigation system is opaque and unaccountable, I’ll just state the obvious — this bill is bad news. I understand the desire to protect the family of the deceased, but public interest ought to trump any privacy rights of the deceased — or their families. There could be exceptions. One of the sponsors of the bill cites a recent case in which a mother inadvertently transmitted the herpes virus to her young child, who then died. In that case, revealing how the deceased died directly affected the privacy of the living. One could envision an otherwise transparent law that allowed exceptions in such cases.

But otherwise, autopsy reports ought to be public record. Autopsies have shown discrepancies in the official narrative after police shootings. They’ve exposed coverups, sometimes after monumentally important incidents. They can vindicate people suspected of murder, or at least show that the crime didn’t happen the way the state claimed it did. Even in a closed system, the families of the deceased should have access to investigative materials such as autopsy reports. But here, too, in states with bad open-records laws, that can be difficult.

The main problem with these bills is that they put up a formidable barrier to journalists and watchdog groups. In my reporting in Mississippi, I once asked merely for the number of autopsies performed in the state crime lab on a given day. I was told that this information wasn’t public, as it would violate the privacy rights of the deceased. I wasn’t asking for the reports themselves, mind you. Just the number of reports.

Not all families will know their rights under such a system. The families of people killed by police, or who die in a jail cell, may not think to ask for an autopsy report. Or if they do and are illegally denied (which sometimes happens, particularly with in-custody deaths, which can remain “under investigation” for years), they may not have the resources to mount a legal challenge. The default setting needs to be open access, with exceptions for special cases. The proposed Tennessee law would do just the opposite.

Beyond in-custody deaths, open access to autopsy reports is also critically important to ensure that medical examiners themselves are properly performing their jobs. To see just how easily these laws can be abused, we can look again to Mississippi. After I published a series of investigative pieces into medical examiner Steven Hayne and frequent state expert witness Michael West, and after Kennedy Brewer and Levon Brooks were exonerated (they were convicted based on testimony from the two men), the Mississippi Innocence Project sent a request to every prosecutor in the state for a copy of any autopsy report involving Hayne or West. Every district attorney in Mississippi turned the request down. Nearly all of them cited a state law giving them discretion to refuse requests in order to protect the privacy of the deceased and their families.

As I wrote here in December, Tennessee too has a colorful and fairly nutty history with medical examiners.

My home state of Tennessee, for example, has had a medical examiner who reportedly threatened to kill a police officer, one who resigned after admitting to drugging and molesting minors and young men, and one who was charged with faking an attack by strapping a bomb to his chest. A previous state medical examiner was arrested for drug possession and accused of stealing marijuana from dead people. Another previous state medical examiner resigned after multiple allegations of sexual harassment, botched autopsies and other misconduct.

Some of these scandals and incidents were unrelated to the medical examiners’ work. But some, particularly with former state medical examiner Charles Harlan, were about the work itself. You’d think a state with that history would understand the importance of transparency in this area. (Given that one of the sponsors is himself a medical examiner, perhaps Tennessee lawmakers are all too aware of the history.)

It probably won’t surprise you to learn that Tennessee has some of the worst open-records laws in the country. You can’t even file an open-records request unless you live in the state — a good way of thwarting meddling journalists from outside the state. In 2015, the Center for Public Integrity gave the state a grade of in “public access to information.”

Meanwhile, in a related story, we can add Arkansas to the list of states where underfunded crime labs are hampering death investigations.