ORLANDO (CN) – Pictures and video that depict an orca whale at SeaWorld drowning its trainer can be used by the government at a hearing this week to defend a $75,000 fine slapped against the amusement park, a federal judge ruled.
The video and photographs show animal trainer Dawn Brancheau being dragged by her hair and drowned by Tilikum, a 20-foot-long male orca at SeaWorld’s Shamu Stadium in Orlando.
Brancheau was killed during a Feb. 24, 2010, “Dine With Shamu” show. Witnesses eating dinner near a subterranean viewing tank said they saw Tilikum playing with the corpse.
A spokesperson for the Orange County Sheriff’s Office said at the time that rescuers could not “immediately jump in and render assistance to Brancheau due to the whale’s aggressive nature.”
Tilikum, which returned to regular performances at SeaWorld after a yearlong hiatus, is one of three whales that attacked and killed another Sea World trainer in 1991.
Brancheau’s family has fought since the tragedy to restrict SeaWold from releasing the videos under Florida’s open records law. The sheriff’s office and medical examiner who investigated the death agreed to keep the materials confidential.
But the U.S. Secretary of Labor and Occupational Safety and Health Administration released at least one video of the drowning to the media. OSHA also has photos taken immediately after the incident showing Dawn’s personal effects and clothing, and two surveillance videos showing her death and rescue efforts.
The government plans to use the materials against SeaWorld, which it fined $75,000 for violations of the Occupational Safety and Health Act of 1970.
A week-long hearing for those allegations kicked off Monday. The court will also decide whether trainers can get back in the water with the whales after SeaWorld takes some new precautions.
Brancheau’s widower, Scott, and other family members filed suit last month to block OSHA from showing so-called “death scene materials” in a reverse Freedom of Information Act request. The family requested an injunction against OSHA and said its actions had been capricious and indefensible.
Unrestricted viewing of the photographs and video would allegedly be disturbing, humiliating and painful for the family.
On Thursday, U.S. District Judge Gregory Presnell said OSHA can use the video, but the media will be barred from that portion of the hearing. An injunction is an extraordinary and drastic remedy that cannot be granted unless the movant clearly establishes the “burden of persuasion,” according to the five-page decision.
Presnell called the legal basis for the family’s request “murky, to put it mildly.”
He noted that the court lacks subject-matter jurisdiction because of the absence of final agency action.
At the time of the complaint, OSHA had not even decided whether to release the death scene materials. “The only requests that could result in such a decision were filed within the past two days,” Presnell wrote.
He also disagreed that the injunction was warranted for allegedly violating a section of the Privacy Act that protects records from disclosure.
Since the video and photos did not seem to qualify as “records,” and were not made available to any person, Presnell said the injunction request was unfounded.
The family has not demonstrated a likelihood of success on the merits and their request for preliminary injunction must fail, according to the order.