Thursday, July 12, 2018

El Paso County coroner seeks to hide Flick and Zetina's autopsy reports

Posted By on Thu, Jul 12, 2018 at 5:19 PM

click to enlarge A sheriff's cruiser was parked outside the Sheriff's Office the day after Deputy Micah Flick was killed in the line of duty. - FILE PHOTO
  • File photo
  • A sheriff's cruiser was parked outside the Sheriff's Office the day after Deputy Micah Flick was killed in the line of duty.
El Paso County Coroner Robert Bux is asking a court to shield autopsy reports of Deputy Micah Flick and auto theft suspect Manuel Zetina, killed in a police shootout on Feb. 5, after the Colorado Springs Independent and the Colorado Springs Gazette sought them under the Colorado Open Records Act.

In his petition for review of the public records requests, Bux argues that disclosure of the autopsy reports would "cause substantial injury to the public interest." In support of that assertion, he states that their release would cause harm to Flick's family.

From the pleading:
The Coroner has also received information from Rachel Flick, Deputy Flick's wife, who has indicated she opposes the release of the autopsy to the public as it contains sensitive information and would cause additional stress and grief to her family. The death of her husband is still very raw and recent. She has twin 7-year-old children who are adjusting to circumstances of life without their father. To date, the focus for the family has been the loss of a husband, dad, son and brother. The focus has been on the life of Deputy Flick and not his death.

Release of the autopsy report will stir community conversation and will provide details difficult for 7 year old children to process as well as other family members, and adds substantial stress to their mother to protect her children from the detailed autopsy description and location of Deputy Flick's injuries.

Finally, she will be at the center of the community dialogue and will be unable to respond or answer questions as the details of the investigation have not been released, and the matter is still pending with the Office of the District Attorney. This family is still grieving and the release of the report is not helpful for the healing process.
The Indy published a cover story on June 20 revealing new details of the shooting, which also injured three officers and gravely wounded a 28-year-old innocent bystander, Thomas Villanueva. Villanueva has filed a notice of claim against the city and county, a precursor to a lawsuit.

The reason the coroner is seeking protection for the documents is because autopsy reports are considered public records under the law. "The custodian of the records has the burden to prove an extraordinary situation and that the information revealed would do substantial injury to the public," the petition states.

Bux's maneuver doesn't sit well with First Amendment advocates.

"Coroner Bux has previously sought permission to withhold a homicide autopsy report on grounds that would apply to a broad category of similar cases, and the court rejected that application," Denver First Amendment attorney Steve Zansberg says via email. "This case should yield the same result. The interests of surviving family members is always at issue in the aftermath of a murder, and if that were adopted as a valid basis to withhold autopsy reports, it would apply in every homicide case."

Zansberg also questioned the manner in which the coroner and the county attorney have litigated this case, and others. "The Open Records Act could not be clearer that anyone who requested access to these public records is entitled to be named as the Respondent and to be formally served with the petition."

The Indy's news editor, J. Adrian Stanley says:

Dr. Robert Bux is again trying to prevent the release of records that the law clearly allows the people to see and review. Autopsy reports are public records for a reason: They often reveal problems that would be ignored if they were kept secret.

Earlier this year, Gov. John Hickenlooper vetoed a bill instigated by Bux that would have blocked all children's autopsy reports from public view. In his veto, the governor noted transparency with these records has made our state a better and safer place. Without public autopsy records, for instance, there never would have been an investigative series by the Denver Post and 9News detailing oversights by government caseworkers who "failed" abused kids "to death." That series led to reforms that saved other kids' lives. 

Now Bux wants to block the public from knowing what really happened to Sheriff's Deputy Micah Flick and suspect Manuel Zetina. Flick was an officer of the law who was working for the public at the time of his death. Zetina was shot by police officers. The people should be suspicious of — if not outraged by — such a move, especially given that the Indy's reporting has uncovered serious questions about how the police operation that led to Deputy Flick's and Zetina's deaths was handled.

Bux is claiming that releasing the reports would "cause substantial injury to the public interest." We contend that the opposite is true. A substantial injury to the public interest occurs when government officials are able to cover up the deaths of a police officer and a suspect killed by police officers, even when the law says the public has a right to know what happened to them.

Think about the precedent such a move sets. If the government can hide these reports, what reports can't it hide?

In trying to hide extremely relevant information on a law enforcement action from the public eye, Bux cites the grief of Flick's family. Our whole community grieves with the Flicks. We all felt the loss when he was killed. But we also have a right to know what happened to our officer, and to call on our leaders to make changes that might prevent another such death in the future. What's more, grief alone — as difficult as it is — does not create a special circumstance. Those of us lucky enough to have friends and family will also be grieved one day. And our autopsy reports will be public records.

Bux also says that he doesn't want to release this report because there's an active investigation into the shooting. But that investigation will close, and Bux' intent isn't to simply delay the release of Deputy Flick and Zetina's autopsy reports, but to prevent them from ever being released.

If that sounds suspicious, that's because it is. Open records laws aren't just for the press; they're for the public. A government that can hide from the people invites corruption.
Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, tells the Indy in an email:
An autopsy report is an important transparency tool that can reveal crucial information, especially in cases such as this where there are many unanswered questions. And because they are not criminal justice records, autopsy reports are an independent source of public information that can help journalists and the public evaluate government agencies, including law enforcement. It is often very much in the public interest for these reports to remain open and accessible.
The Indy and Gazette could choose to intervene and argue for the records' release.

Stanley says the Indy is considering objecting to closing the records.

Here's the petition:

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