ORLANDO (CN) - The family of a SeaWorld trainer who was drowned by an orca will have one more chance to fight the government for sharing so-called "death scene materials."
U.S. District Judge Gregory Presnell seemed skeptical, however, that an amended complaint due Friday will fare better than previous attempts.
"Given that the plaintiffs have already advanced and withdrawn claims based directly on FOIA, on the Privacy Act, and on the Declaratory Judgment Act, it appears unlikely that they will find a law that obligated OSHA to withhold its summary," Presnell wrote on Jan. 18.
Tilikum, a 20-foot-long male orca at SeaWorld's Shamu Stadium in Orlando, dragged animal trainer Dawn Brancheau by her hair and drowned her during a Feb. 24, 2010, "Dine With Shamu" performance. Witnesses eating dinner near a subterranean viewing tank said they saw Tilikum playing with the corpse.
After obtaining a seven-minute video of the underwater attack from Sea World, the Occupational Safety and Health Administration released a one-paragraph summary of the footage to the media.
OSHA's written summary followed the release of a longer and more detailed account by the Orange County Sheriff's Office. But Brancheau's family later received promises from both the sheriff and the medical examiner who investigated the death to keep the materials confidential.
SeaWorld was later fined $75,000 for violations of the Occupational Safety and Health Act of 1970. OSHA also has photos taken immediately after the incident showing Brancheau's personal effects and clothing, and two surveillance videos showing her death and rescue efforts.
Brancheau's family has fought to make sure that those with access to the videos never have the chance to release them. In August, they filed a reverse Freedom of Information Act request to block OSHA from showing so-called "death scene materials."
The complaint took issue with OSHA's alleged intent to release the written summary of the incident to anyone making a request and its refusal to notify the family should it receive requests for the video. Brancheau's family said OSHA has refused their request to block future release of the video, and that it refuses to classify the video as exempt from disclosure under the Freedom of Information Act.
Presnell ruled last week, however, that the family does not have a basis for a reverse FOIA suit. "FOIA is a disclosure statute and does not provide a right of action to enjoin disclosure," Presnell wrote (emphasis in original). "A plaintiff seeking to prevent disclosure under FOIA has no remedy until the agency determines that it will release the requested information."
OSHA has no plans to release the video, and neither the FOIA nor any other statute would require it to provide notice of any requests it may receive, the court found.
Several third parties have made requests for the video over the last year, and OSHA has denied each of them, according to the Jan. 18 order.
Though Brancheau's family has challenged OSHA's alleged intent to release its written summary of the video, there is no FOIA exemption that would apply to future releases of the document.
Agencies must disclose information that is "preserved in a permanent record or is otherwise easily accessible by the public." All of the information in OSHA's summary can be found in the longer summary released by the Orange County sheriff.
Presnell also rejected claims that OSHA's original release of the written summary was arbitrary and capricious, in violation the Administrative Procedures Act. To prove that the release was arbitrary or capricious, Brancheau's family would have needed to show that the conduct was somehow unlawful.
That would require pointing to a law other than FOIA that required the agency to withhold its summary
"Given that the plaintiffs have already advanced and withdrawn claims based directly on FOIA, on the Privacy Act, and on the Declaratory Judgment Act, it appears unlikely that they will find a law that obligated OSHA to withhold its summary," Presnell wrote.
Brancheau's family has until Friday to file amended complaint that shows how another law obligated OSHA to bar disclosure of the summary. Its remaining claims, however, were dismissed with prejudice.
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