Page 2 - Denying Investigative Photographs - AFI-LLC March 2022

Denying Investigative Photographs – AFI-LLC – March 2022 2 of 4
UPDATE (last month: Your Rights and Dignity – End of Life is Not End of Dignity)
The day after we released our February commentary (www.DeathCaseReview.com/afi-llc-blog/your-rights-and-dignity-
afi-llc-february-2022), we were provided this news story about a bill in the Colorado legislature with this purpose –
“Colorado hospital visitation rules often keep families from dying loved ones during the pandemic. Is there a better way?”
(www.denverpost.com/2022/02/14/hospital-visitation-during-covid-19-colorado-familiy). The bill – Health Facility
Visitation During Pandemic - Concerning visitation rights at health-care facilities – is at
https://leg.colorado.gov/bills/SB22-053. it was assigned its first committee – known as the ‘kill committee’ in late
January, and still sits unheard with no activity. We continue to monitor this bill and plan to testify at all hearings. We ask
for you to send your support of the bill to the sponsors, as well as committee members. We have also been contacted by
a nearby local newspaper for a story, which is expected to be published soon.

Stay tuned – we will post updates to this bill and our efforts here.

Denying Investigative Photographs to Families
This month we follow-up our January commentary: Evidentiary Photographs - Originals vs. Everything Else
(www.DeathCaseReview.com/afi-llc-blog/evidentiary-photographs-originals-vs-everything-else). Too often, specific to
photographs and videos, there is a statutory and/or official agency’s policy denying release due to potential public harm.
Here we discuss the reasons for the policies, and the problems created.

Every state has a different statute for the release of criminal justice and non-criminal justice records. Criminal justice
being those of law enforcement and related agencies; and non-criminal justice being other government agencies. These
two dictate the actions of Open Records Requests. To further this complication, states have different laws specific to
certain releases or restrictions to release of photographs; and some have none or are very vague. Florida has the ‘Dale
Earnhardt Law’ – which says the medical examiner offices photographs can be released only to next-of-kin. This came
about, in short, because a national gossip newspaper illegally obtained photographs of the Dale Earnhardt autopsy –
which could have then been legally obtained, but would have been too late for their breaking story. This screwed things
up for the public, attorneys, and investigators with the best of legal intentions and purposes. We won’t go into detail of
the good and bad with the underlying event and misplaced law. Another negative impact to this process is the general
media. Too often they make requests for scene and autopsy photographs of active criminal cases to use in a story. There
is simply no reason for this. Recent court cases have seen poorly made arguments by the media, and the subsequent
court denial impacts all of us. The most restrictive state is California – records, reports and photographs (including
videos) of any death investigation are not released – period.

Specific to our needs – 1) scene and autopsy photographs are very important to our death case reviews – family, civil,
and criminal – and may involve the next-of-kin as a person of interest. In Colorado there is not statute concerning the
release or restriction of official photographs. Instead, it is left to the policies of the individual county coroners and their
interpretation of the two statutes – criminal justice and non-criminal justice records. Of the 67 counties in Colorado, we
are not aware of any who will release photographs by request – regardless of the purpose and confidentiality. We have
used very sound legal arguments for these releases, and have been successful only one time. The reasons given, and
misusing the statute, are: 1) coroner offices are criminal justice agencies; and 2) the release of photographs could cause
public harm. We’re glad to have the finer points of this discussion with any coroner or medical examiner, office
manager, investigator, legislator, county commissioner or attorney – anyone. In reality the law is on our side and we
‘win’ every request. However, the power of ‘denied’ is bigger when the family cannot afford to seek judicial review and
order the release.

With this background in the difficulty of obtaining photographs (or video – used here as the same), why are these
important? Our office provides services primarily to attorneys in civil and criminal litigation; and also families who
privately seek an independent review and analysis of their loved one’s questioned death. This process requires the same
evidence as the official investigation – not some, part, or what the public agency selects for us to receive – all of the
evidence. This is just the same as civil and criminal litigation disclosures and discovery. Criminal litigation is straight
forward – its part of the required discovery process. Civil litigation can be trickier, as often the representing attorney is
seeking information prior to filing, in part to determine the facts and merits of the case, and to reach a settlement
without filing (which adds costs to the client) – and as such, there is no immediate disclosure requirement or ability to

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