About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Friday, September 16, 2011

Contrary To Media Reports, Video Of Dawn Brancheau's Death Is Not About To Go Public (UPDATED 9/20/11)

Yesterday (9/15/11), Judge Gregory Presnell of the United States District Court for the Middle District of Florida in Orlando denied a preliminary injunction sought by the family of the deceased SeaWorld trainer, Dawn Bancheau, to prevent video showing the events of Ms. Brancheau's death from being shown publicly at an OSHA hearing looking into potential OSHA violations by SeaWorld scheduled for September 19.  Having spent some time today looking at the media reports and the ruling itself, I am disturbed (although not overly surprised) at the extent to which the media has missed the point of Judge Presnell's ruling and has characterized at something it is not.

An Associated Press report, picked up by many news outlets around the country, leads with this sentence:

"A federal judge says there is no legal reason images of a SeaWorld trainer's death should be kept from the public."

To many (maybe most) readers, this suggests that Judge Presnell ruled that the video depicting Ms. Brancheau's death should be public or that he believes that the public interest would be best served if the video were to be released.  But that's not what he said in the ruling, and, in fact, there's every reason to believe that despite Judge Presnell's ruling, the graphic video of Ms. Brancheau's death will never be made publicly available at all.



I think its worth taking a moment to set the record straight on what Judge Presnell said in his ruling.  The plaintiffs, the family of Dawn Brancheau, sought an injunction that would prevent OSHA from showing the video at a hearing during which SeaWorld will challenge OSHA's imposition of violations and fines in connection with Ms. Brancheau's death during a killer whale show.  The Plaintiffs relied on the federal Freedom of Information Act, the Administrative Procedures Act, and and the federal Privacy Act to justify their petition seeking to seal the video.  Judge Presnell's ruling simply found that "None of the statutes purportedly relied upon by the Plaintiffs can provide them with the relief they seek."  In other words, Ms. Brancheau's family couldn't point the Court to anything in the law that required him to order OSHA not to use the video at its hearing.  So, given the lack of any law that required him to do what the Plaintiffs' requested, Judge Presnell could not give the Plaintiffs what they wanted.  Here's what the ruling did not say:

1.  It did not suggest that OSHA had to release the video or make it publicly available.  The upcoming OSHA hearing will be presided over by an administrative law judge who has very broad discretion in the admission of evidence and has authority to order the proceeding closed to the public.  Nothing in Judge Presnell's ruling affects this authority or mandates that the video be made public.

2.  It did not suggest that release of the video was in the public interest.  In fact, Judge Presnell's decision never mentions "the public interest" at all.  The ruling is actually pretty bland as far as rulings go - its only five pages long and relies entirely on statutory interpretation to hold that the statutes cited just don't apply to this situation.  No one could ever cite this ruling as standing for the proposition that the public has a right to see this video.

I also think it is important to realize that there is a lot more to this story than what is being printed in the media reports surrounding this ruling, and it is this background that, in my opinion, makes it likely that the Plaintiffs will get their way at the end of the day.  Here's what the media reports are not saying:

  • A Florida State Court has already issued a permanent injunction preventing the Orange County Sheriff's office from releasing the video in question. (The Sheriff had already given a copy to OSHA before the injunction issued).    The significance of this prior injunction is that it contained very detailed findings that the public interest would not be served by the release of the video and that, particularly in today's world where anything and everything can go world-wide in the blink of an eye on the Internet, the privacy interests of the family deserved significant protection from the pain the release of this video would cause. 

  • SeaWorld has already petitioned OSHA to close the hearing, in part, due to privacy concerns of the family.  SeaWorld has been vocal in its support of Ms. Brancheau's family's privacy interests, going so far as to file papers with the Florida state court supporting the imposition of the injunction discussed above.  SeaWorld also claims some intellectual property rights in the video (it was filmed on its cameras and uses official SeaWorld imagery), and this also influenced the State Court's ruling, but SeaWorld has always placed the family's privacy rights above all else.

It is inconceivable that the Administrative Law Judge presiding over the OSHA hearing does not know about the state court injunction, the family's persistent pleas to keep the video secret, or SeaWorld's support of the family in this respect.  Given the broad authority that the judge has to render the proceedings open or closed and to rule on the admissibility of evidence, it seems almost certain that this video is ultimately not going to be released.  The pain and torment to Ms. Brancheau's family that could be caused by the public release of this material is self-evident and no judge wants to be the cause of that pain by ordering the public dissemination of this material.

UPDATE 9/20/2011:  According to a Huffington Post report released today, OSHA attorneys did not attempt to introduce this video into evidence during SeaWorld's OSHA hearing.  While the report (and many many others I've seen over the last couple of days) erroneously suggests that Judge Presnell's ruling left it up to the attorneys, rather than the administrative law judge, to decide whether the video would be shown publicly during the hearing, the decision of OSHA attorneys not to show the video means that the ALJ will never have to make the decision and it appears that the video will remain shielded from public view.

One interesting note in the Huffington Post piece was this sentence:  "It wasn't immediately clear why the government chose not to show the footage."  Really?  While I certainly have no inside knowledge, I would venture a good guess that the OSHA attorneys knew they would be fighting a tough and unpopular battle if they tried to publicly display this footage in the courtroom.  Dawn Brancheau's family and their lawyers were there, presumably waiting to interject if OSHA attempted to introduce the video into evidence.  SeaWorld's lawyers no doubt would have raised a strong objection as well and renewed their reported efforts to have the proceedings closed while the video was shown.  And the judge would have had to contend with the reasonable conclusions, discussed above, reached by a Florida state court judge which, while not controlling in this proceeding, certainly raise good points about the public interest in releasing this footage that the ALJ could reasonably wish to avoid.  Unless that video had some kind of smoking gun that was integral to OSHA's case, which it presumably doesn't,  I think its relatively clear why the government chose not to introduce the footage.

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