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Jewish World Review March 16, 2001 / 21 Adar, 5761

Paul Greenberg

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Consumer Reports

NASCAR: Now it's top secret -- IT ought to be one of Parkinson's Laws:

Secrecy expands to fill officialdom's desire for it, which is unlimited.

It doesn't have to be a White House scandal or even a city council meeting that gets the secrecy treatment. This week it's been the fiery death of a much admired race car driver.

It seems the Orlando Sentinel has been trying to obtain pictures from Dale Earnhardt's autopsy -- not to publish the things, but to have an independent expert review them.

The newspaper would like to have an expert on head injuries examine the photographs and determine the cause of death. An independent judgment by a medical expert might prove useful in preventing other deaths in NASCAR competitions.

It may sound reasonable enough, but in this day and record time, NASCAR enjoys a popular immunity to public scrutiny and freedom of the press that George III might envy.

According to Florida law, these autopsy photos should be part of the public record, but a judge has sealed them at the request of Dale Earnhardt's widow. And now Governor Jeb Bush and some of that state's legislators are out to keepall autopsy photos from being considered public records -- retroactively.

Not even this is enough for those who look upon any scrutiny of NASCAR's sometimes fatal operations as a kind of lhse majesti, a pre-1776 concept that might loosely be translated as the offense of insulting the king. And NASCAR is king today.

A committee of the Florida Legislature now has unanimously approved a bill that would not only seal autopsy records, but make it a crime to release them -- a third-degree felony that would carry a maximum sentence of five years in jail and a $5,000 fine. That'll teach anybody to ask questions about seat belts, safety or anything else about NASCAR except how to promote it.


A wise judge in Daytona Beach told Mrs. Earnhardt and the Orlando Sentinel to meet with a mediator who will try to find common ground. One would like to think that, after meeting face-to-face rather than fussing through lawyers, the litigants will be able to see each other as human beings rather than plaintiffs.

Ethics and reason -- and full disclosure -- may triumph when people deal with one another as people. But the adversary process may leave people only, well, adversaries. Here's hoping the widow Earnhardt will come to see the editors not as ghouls out to exploit a family tragedy, but just folks trying to determine the cause of a fatal wreck and ensure the safety of other drivers.

The public has an interest in what happened to Dale Earnhardt -- as is obvious from the outpouring of grief. A lot is going on here besides an investigation into a traffic accident. Dale Earnhardt, like Princess Di, has become an even more powerful symbol in death than in life.

This isn't about Dale Earnhardt the man or even the race car driver anymore, but about Dale Earnhardt the icon, the image, and who should be allowed contact with it. It's about resurgent regional and class loyalties, and how untouchable NASCAR has become in the hierarchy of new Southern holies, where it's probably somewhere between college football and championship tractor pulls.

This is about power, as is almost any debate about secrecy versus openness, whether the subject is government subsidies for industry or access to the records of an autopsy. And when the issue is power, the politicians will want some -- in this case, the power to seal public records.

These legislators in Florida sound just like some ones here in Arkansas who are always trying to bushwhack this state's Freedom of Information law. That law was a model piece of legislation when it was passed in a fit of reform back in the 1960s, but the promoters of secrecy in government have been chipping away at it ever since.

There is something about open government these people just don't like. Maybe because it requires the powerful to be more accountable to the public. In a free country, even NASCAR's operation should be open to examination.

Give government a single opportunity to close the records in one celebrated case, and secrecy will expand exponentially. For our secret-keepers never miss a chance to keep the public out of the public's business.

But sealing the results of an autopsy has ominous overtones for a free society that even financial secrets may not. What if someone's death has been caused by the police or some other agency of government? How convenient it would be to keep the autopsy secret.

Here in Arkansas, the Democrat-Gazette has tried to open the case file in the killing of a man in a no-knock raid. But instead of an explanation, the newspaper was given a mysterious document with just about everything relevant blacked out. If only it were written in German, the Kafkaesque effect would be complete.

In Florida, another protection against the danger of a police state is now being whittled away. It's an important protection. There are few more basic safeguards than the right of a free people and a free press to examine the records of autopsies. This is supposed to be America, not General Pinochet's Chile.

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