The VICE Channels

    New Jersey Says Releasing Dolphin's Autopsy Would Infringe Its Privacy [Updated]

    Written by

    Jason Koebler

    Staff Writer

    Update, 1/11/16: Bob Schoelkopf, founding director of the Marine Mammal Stranding Center, got in touch with us after we published this story to clear up what happened with the dolphin necropsy.

    Schoelkopf says his organization euthanized the dolphin and paid the state of New Jersey to perform the necropsy. The results of the necropsy were released to his organization, which expressly asked the state to not publicly reveal its findings. He said because of the controversial nature of dolphin euthanasia, the organization wanted to keep the findings private.

    "It hadn't eaten in six months and had morbillivirus, which killed all those dolphins we had here two years ago. It also had rubella which is a deadly disease in these animals," Schoelkopf told me. "Our job is not to release the necropsy. Our job is to worry about the animals and not have people who say you shouldn’t euthanize any animals weigh in on this, to have people from upstate New York say that you shouldn’t put these animals down for any reason. With an animal in that condition it shouldn't be rehabbed, it won’t be rehabbed, it can't be rehabbed. You can’t put it in captivity for rehab. We ordered right away to euthanize it, and that's something we don’t have to put out to the public."

    "We couldn’t even transport the animal, it was so bad. Without experience in this field, you wouldn't know that. Trying to save it is not a favor to the animal. If it’s dying, it needs to be taken care of in the sense it’s not going to suffer anymore," he added. "Some of these people don't have the best interest of the animals in mind, they just want to make waves."

    The records request response from the New Jersey Department of Agriculture made no note of the involvement of Schoelkopf's organization and did not specifically mention whose privacy it was attempting to protect.

    The original article is below.

    In August, a mortally ill dolphin wandered into the South River in New Jersey. After it died, New Jersey state officials promised to perform a necropsy, but never released the results of it.

    Now we know why. The New Jersey Department of Agriculture responded to an Open Public Records Act request seeking the results saying that the report is “confidential” because it is “related to a medical diagnosis or evaluation.” In other words, the state of New Jersey says it’s holding the report back because, in its view, dolphins have the same medical privacy rights as humans.

    At the time, there was lots of interest in the case in and around New Jersey, with many local media organizations covering the dolphin’s death (photos of the poor thing here). A necropsy is an autopsy for animals.

    As Muckrock, a government transparency organization that Motherboard often works with, points out in a blog post, this isn’t the first time that New Jersey has gotten creative in order to keep potentially embarrassing records out of the hands of the public. Without seeing the necropsy, it’s impossible to say if the animal got sick because of pollution—just one hypothetical scenario that New Jersey wouldn't want to make public. In the past, Governor Chris Christie has been sued by (and lost to) the ACLU because of his stonewalling of public documents related to his closure of a lane on the George Washington Bridge (you may know this as “Bridgegate.”)

    The idea that dolphins have medical privacy rights is absurd and has no legal basis. Though several groups have argued that dolphins and other cetaceans deserve some sort of legal rights under a category such as “non-human persons,” there has been no actual ruling or law classifying them as such.

    And so releasing the results of the necropsy shouldn’t be a violation of HIPAA or the 2002 NJ executive order that deemed “information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation” off limits to records requests so long as it is “concerning [an] individual.”

    The animal was in very bad shape before it died: It was “terribly emaciated,” according to the Marine Mammal Stranding Center, which attempted to rescue the dolphin. The records request rejection may not seem like a big deal, and maybe it’s not. Perhaps it died because of a pollution-related illness, for example—without seeing the necropsy, we can’t actually know for sure.