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Bill restricting autopsy photos sent to House

Dale Earnhardt's widow and the Orlando Sentinel remain at odds over the paper's bid for his pictures.

The first day of mediation over Dale Earnhardt's autopsy photos ended without an agreement Thursday, and a bill that would limit public access to them advanced in the Legislature.

Talks are scheduled to resume today between Earnhardt's widow and the Orlando Sentinel over her efforts to block the newspaper from seeing her husband's autopsy photos.

Teresa Earnhardt said in the meeting that releasing the photos of the NASCAR legend would cause "permanent distress" to the family without public benefit.

Meanwhile, state lawmakers took another step toward limiting public access to autopsy photos, positioning the full House to vote on the issue as early as next week.

A bill that cleared a House committee Thursday would make it a felony, punishable by five years in prison, to release autopsy photos without the family's permission or a court order.

House and Senate versions of the legislation call for the restrictions to apply retroactively, meaning the Sentinel would be barred from having an independent authority look at the Earnhardt photos unless his family or a judge agreed.

The Sentinel has said it doesn't plan to publish the photos, but wants an outside expert to examine them as it looks into NASCAR safety. However, another party has entered the case, a Web site called that hasn't ruled out publishing them.

The retroactive element makes the proposed legislation vulnerable to a lawsuit, said Jon Kaney, an attorney representing the Daytona Beach News-Journal in a related public records case pending before the state Supreme Court.

Florida courts have ruled that lawmakers cannot retroactively take away a "vested right" such as access to public records, Kaney said. "That is rightfully and certainly should be unconstitutional," he said.

On Thursday, the House Committee on State Administration approved the bill 3-2, rejecting an amendment supported by representatives of the Sentinel and the Florida Press Association. The amendment, by state Rep. Perry C. McGriff Jr., D-Gainesville, would have preserved current law allowing for public inspection of autopsy photos. However, the amendment would have required a court order to reproduce the photos.

State Rep. Paula Dockery, R-Lakeland, said her previous concerns that banning access to the photos would compromise public safety were resolved by changes in the bill that would make exceptions for local, state and federal agencies.

Otherwise, "I just can't see a reason why anybody would benefit" from public disclosure, Dockery said.

Gov. Jeb Bush has endorsed the effort to restrict access to the photos.

"We are disheartened by the growing number of media and individuals including a Web site that have joined the Orlando Sentinel in its quest to gain access to the autopsy photos of Dale," Mrs. Earnhardt said. "We are convinced that if access is granted it is inevitable that the images will soon appear elsewhere, including on the Internet, and cause permanent distress to my family and to Dale's legacy with no real public benefit."