*1 438 Mich EXAMINER v WAYNE COUNTY MEDICAL SWICKARD 6). (Calendar Argued No. Decided No. 89602. March Docket 19, 1991. September brought under of Informa- an action the Freedom Joe Swickard against Wayne County Court tion in the Circuit Act report Examiner, autopsy seeking release and Medical regarding Judge toxicology the late Chief test results Jr., Court, Longworth Quinn, he order that 36th District court, might copies inspect The make the documents. and Olzark, J., request for an L. denied the defendant’s Roland hearing evidentiary be made and ordered that the documents copying. Appeals, inspection and The Court of available for Cynar P.J., JJ., stayed Cavanagh, and execu- ShepheRD, and tempo- and the decedent’s mother tion of the order and allowed rary personal representative his There- estate intervene. P.J., after, Appeals, Cavanagh, and McDonald the Court of Marilyn JJ., affirmed, finding Kelly, and compelled of the documents and determined (Docket hearing evidentiary no for an No. there was need 127076). appeals. The defendant opinion by joined Riley, Chief Justice In an Justice Brickley Supreme Cavanagh Boyle, and Justices Court held: Wayne County justified not under Medical Examiner was withholding the Freedom Information Act Judge Quinn report regarding test be- results clearly to a unwar- cause the disclosure would amount family judge the late or his under ranted invasion of 4.1801(13)(l)(a). 15.243(l)(a); physician-patient MCL MSA case, privilege inapplicable the facts of this and thus under 13(l)(a) 13(l)(i) exempts the from neither nor documents § References 46.14-46.16, 2d, Recording 46.19. Am Jur Records and Laws §§ agency under are "records” of which must be made available What 680. of information act. ALR4th state freedom exempt personal inva- constitutes matters from disclosure What privacy exemption of information act. sion of under state freedom 26 ALR4th 666. Wayne Med Swickard v Examiner 1991] refusing the defen- disclosure. The trial court did not err in request evidentiary hearing. dant’s for an Act, seq.; 1. The of Information MCL 15.231 et MSA Freedom 4.1801(1) complete seq., persons et entitles all to full *2 government regard and the information with to the affairs public represent them as officials and official acts of those who fully participate public employees they may so that the record, process. Upon request describing public a democratic a copies person right inspect, copy, of the has a or receive policy exempted by 13 of the act. A record unless release is public body full disclosure underlies the foia. When a refuses reques- requested to disclose a document under the act and the disclosure, compel public agency the bears the ter sues to proving justified. burden of the refusal was The foia is exemp- primarily prodisclosure the intended as a statute and narrowly tions to disclosure are to be construed. 13(l)(a) pro- 2. Section of the Freedom of Information Act public body may exempt vides that a from disclosure a personal public record information of a nature where clearly a disclosure would constitute a unwarranted invasion of requested person’s privacy. To determine whether disclosure of any privacy rights, the common law information would violate customs, mores, ordinary or and constitutional law as well as community views of the are considered. An action for invasion living person privacy only by a whose can be maintained privacy Such an action not be main- would be invaded. invaded; privacy might on of a decedent whose tained behalf Thus, right assignable. Judge Quinn’s common-law nor is the rights disputed autopsy privacy are in disclosure of the results virtually nonexistent. right privacy personal, the 3. the common-law is Because persons objects publicity may who are relatives of deceased their own not maintain actions for invasion of unless occur, violated; a relative must be is for an invasion case, brought unjustifiable publicity. In this disclosure of into autopsy report foia would not and test results under the rights expire any privacy rights Judge Quinn. Foia threaten rights. personal, of the The material is not with the holder intimate, findings embarrassing family. The of the to the deceased, family. solely not the examiner relate to the medical privacy, Upon surround- of the law of the circumstances review leading legal figure community, ing a in the and the death of prodisclosure statute with view of the fact that the foia narrowly exemptions, failed to meet construed the defendant Mich of a are information materials at issue his burden personal nature. 27A.2157, privi- physician-patient 600.2157; 4. MCL MSA physician-patient protects of the lege, nature the confidential the doctors relationship, encouraging between free discussion ensuring between patients that communications their in an no communication Since there is two are confidential. autopsy further privilege autopsy, applying to an would perfor- acquired in the purpose The information of the act. privilege. scope falls outside mance of an refusing case, did not err trial court 5. In this ruling hearing. evidentiary sufficient to make The record was hearing. evidentiary a formal without only. result in the Griffin concurred Justice Affirmed. family Levin, writing separately, of a stated that Justice autopsy report person interest in an has a deceased report contain and test results results. Such a test case, personal In this nature. information demonstrat- County the burden of Examiner sustained Medical clearly unwarranted ing constitute that disclosure would family. personal privacy of the decedent’s invasion of *3 exemption, privacy applying Information Act a Freedom of and non- in the interests disclosure should balance a court justified if it would Generally, cannot be disclosure disclosure. on, about, light any nothing or fail to shed little or reveal report autopsy agency government official. An or conduct by county prepared a toxicology and obtained test results and compiled investigatory for law- records examiner are medical personal a purposes information of and constitute enforcement person nature, family an has of a deceased in which the privacy privacy personal Disclosure interest. and a individual generally concerning private a citizen of such information on, about, light any nothing or shed little or would reveal agency government official. or conduct of a exemption as invasion-of-privacy not be construed should The rights cognizable only at common law including those prodisclosure by protected The foia is a the constitution. or statute, compiled a requiring or maintained all records is within an public body unless the record be made available exception is exemption. enumerated Where an enumerated novo, on, de and the matter the court must determine relied asserting exception public body to on is the burden particular requesting applicability. for The reason sustain its making request, material, person identity a or Med Swickard v Examiner 1991] sought purpose is to a for a record is not relevant which constitute an unwar- determination whether disclosure would court, making privacy. its A in ranted invasion of circuit exemption, determination of the merits of an asserted The in and nondisclosure. must balance the interests disclosure rights about is on citizens’ to be informed focus disclosure up to, government justified if it is cannot what their and about, light any nothing or or fail to shed would reveal little on, primary government agency or the conduct of a official. a is to determine whether function a medical examiner person’s The sole was the result of unlawful means. death authorizing autopsy toxicology test is reason for An au- was committed. determine whether a criminal offense report prepared by topsy medical results a test compiled investigating law-enforce- records examiner are purposes. ment personal privacy individual interests of individual family outweigh public’s in disclo- members of interest a reports nothing about matters sure. Individual tell properly policy the sub- that are substantive law-enforcement might public ject disclosure concern. While balance favor office, public record official misconduct where evidences case, rather, claim; only is a hint in this is no such there there person in office. office who was of misconduct out of a family reputational subject the decedent’s Disclosure would appropriate the effects of disclo- loss with no forum to address sure, government public what would inform the about to, nothing up about the conduct and would reveal little or government agency or official. part dissenting, with Justice Mallett, Justice concurred Levin. (1990) 662; App affirmed. 184 Mich NW2d — — — of Information Act 1. Records Public Bodies Freedom Exemptions. body exempt public public as record from disclosure A personal where information of nature clearly invasion of an individu- would constitute a unwarranted requested privacy; determine whether disclosure al’s rights, law and common information violates customs, mores, ordinary views law as well constitutional *4 (MCL 15.243[l][a]; community MSA to be of the are considered 4.1801[13][l][a]). Proper — Privacy — 2. Parties. of Action Causes only by may privacy for be maintained An action invasion Mich Opinion of the Court may invaded; privacy action not living person such an whose might be whose behalf of a decedent maintained on invaded, assignable. right nor is the Family Proper — — Privacy — Parties of Action 3. Causes Members. publicity objects to the related who are Relatives of a decedent invasion of actions for not maintain death decedent’s violated. has been unless their own Autopsy Privilege — Physician-Patient — Physicians-Surgeons 4. Reports. apply privilege of the physician-patient not to disclosure does 27A.2157). (MCL 600.2157; autopsy MSA an results of (by Honigman, Her- Miller, & Cohn Schwartz Jasinski) L. P. Fink and Sandra schel plaintiff. Corporation County Green, A. Saul Corpora- Mason,
Counsel, E. Assistant and Ellen Counsel, for the defendant. tion (by Gardner, Gardner, C. P.C. Samuel &Bell Siringas), for the James, Athina T. D. Frank intervenor. appeal, to decide we are asked
Riley, J. In this autopsy report test whether Judge regarding 36th late Chief results District exempt properly Longworth Jr., Court, are Quinn, Freedom the state’s disclosure under from seq.; Act, MSA MCL 15.231 et of Information 4.1801(1) seq. to deter- are further asked et We refusing erred the trial court mine whether hearing. evidentiary request We for an defendant’s justified under not defendant was hold that report withholding and test court did the lower further hold results. We request refusing for an defendant’s err hearing. Accordingly, evidentiary we affirm Appeals. of the Court decision *5 Wayne Med Examiner 541 Swickard 1991] Opinion of the Court I. FACTS PROCEEDINGS AND 4, Longworth 1990, the Honorable January On Jr., to death in his mother’s Quinn, was found shot Wayne County On the Medical January home. autopsy on the performed office an Examiner’s postmortem examina- Judge Quinn.1 body of death the immediate cause was tion found that the head.2 The gunshot wound to a self-inflicted of death. certificate no other causes death listed found, Roger body after was days Within Finkelstein, Joe plaintiff Swick- Chesley, Jim Free Press an article Detroit ard wrote one Judge Quinn.3 At concerning the death of point, the article stated: with in- Law officials familiar enforcement drug paraphernalia
vestigation that was indicated Quinn’s Detroit home of found in the west-side mother, judge of 36th 46-year-old chief where . house-sitting. . . Author- had been District Court ities of significance they had not determined said items recovered. and col- The article also stated "[f]riends nothing that would leagues they knew said drugs.” used suggest Quinn 23, 1990, Dr. plaintiff wrote January On Cassin, Medical Exam- the Wayne County Bader J. action, un- requesting in this iner and defendant autopsy and toxicol- report the foia der could plaintiff be released so that test results ogy Plain- of the documents. inspect copies and make MSA Friends cause of death of medical This The article 5.953(2), say judge attention information which appeared persons showed no during can be found on the certificate requires performed in the who troubles before his suicide. forty-eight the medical examiner die under Detroit violently, unexpectedly, hours Free authority Press prior of death. to death. of MCL investigate was entitled or without 52.202; Mich Opinion of the Court article to use the information
tiff intended planned Press. On for the Detroit Free to write he January he
29, 1990, advised that defendant receipt upon only information release the would "duly the decedent’s authorization” executed next of kin. plaintiff in the 14, 1990, filed suit
On March claiming re- Court,4 Circuit quired the results of to release defendant *6 complaint postmortem and an examination. on on defendant cause were served order to show complaint answered March 19. Defendant requested exempted the the foia claimed that disclosure, re- and defendant from information quested hearing pursuant evidentiary to MCL 4.1801(10X3). 15.240(3); 23, March On MSA request eviden- for an refused defendant’s court5 hearing, tiary introduced into and the court regarding parties’ agreement the sub- record testimony. proposed On of the defendant’s stance day, order trial court entered an same requiring make available "all defendant to reports, docu- results and related test plaintiff’s inspection copying. ments” appealed decision, and the Court Defendant stayed Appeals of the order. On execution Appeals April 24, 1990, allowed Doro- the Court of temporary thy mother and the decedent’s Quinn, personal representative estate, to intervene of his July 16, 1990, the Court in the action. On Appeals decision, and the trial court’s aifirmed compelled disclosure of the the foia found The Court also determined documents. properly there was no need
trial court ruled 4 15.240(1); pursuant MSA filed to MCL action was 4.1801(10)0). 5 L. heard the Honorable Roland Olzark. The case was 543 Med Examiner Swickard 1991] Opinion Court 662; 459 App hearing. Mich evidentiary for an (1990). NW2d Appeals the Court of deci- appealed
Defendant on sion, appeal granted and this Court leave 24,1990. 881. 436 Mich October
II. FOIA INTRODUCTION TO 1977, Michi- of the Before the enactment free long allowing citizens gan enjoyed history Inc v Newspapers, Booth access records. Judge, App 203; Muskegon Probate Mich Booth, (1968). of Appeals the Court NW2d 546 stated: Michigan on the mat- The fundamental rule us, Bur- first enunciated in the case of
ter before
(1889),
282],
NW
ton v Tuite
onstrated unless there is privacy exemption necessary vacy. withholding. explicit authorization for 6) withholding only (exemption when allows pri- "clearly prevent invasions of unwarranted” in favor of are two built-in administrative biases There First, permissive; they exemptions allow are disclosure. Second, although withholding require sanctions never it. but penalize improperly withholds a an officialwho are available document, wrongful release of a there are no sanctions document. regard spoken Although professor’s to the remarks are Michigan’s they apply foia, statute. also federal *8 Wayne Med Examiner Swickard v 1991] op Opinion the Court dispute county med- Defendant does "public body,” nor does ical examiner’s office is a report dispute re- he the test results plaintiff agree quested by "public records.” We are "public body” county is a coroner’s office 2(b)(iii) that the under of the act.7 We also believe prepared prepared by defendant were documents performance function,” an official "in the "public records.”8 are therefore 13(l)(a) III. OF EXEMPTION § DISCUSSION 13(l)(a) provides: Section of the exempt public A from disclosure a body public under this act: record pub- personal nature where
Information of would constitute lic of the information clearly invasion of an individual’s unwarranted 15.243(l)(a); 4.1801(13)(l)(a).] privacy. MSA [MCL contend that this and the intervenor Defendant exemption justifies to disclose defendant’s refusal recently We most encountered the documents. body” "Public means: intercity, township, village, intercounty, county, city, or A council, district, special regional governing body, school board, district, department, municipal corporation, or or a 15.232(b)(iii); commission, council, agency or thereof. [MCL 4.1801(2)(b)(iii).] MSA used, owned, writing prepared, means a "Public record” public body perfor of, possession retained function, it is from the time created. This mance of an official (i) separates into 2 those which are act records classes: (ii) others, exempt section all from disclosure under subject under this act. [MCL shall be to disclosure which 15.232(c); 4.1801(2)(c).] MSA Mich Opinion op the Court *9 13(l)(a) supra.9 Employees Ass’n, In § in State plaintiff Employees Ass’n, was the labor State employees. representative 26,000 civil service requested plaintiff under the foia The Department Management Budget disclose and containing the in the the home addresses of information employees. department, the defendant The claiming addresses, case, that disclo- withheld the " 'clearly unwarranted sure would constitute ” 13(l)(a). privacy’ § Id. at 123. under invasion of interpreting "privacy” the notion of under While 13(l)(a), opinion § Justice in the lead Cavanagh wrote: Legislature attempt to define the made no principles right of our constitution. apply are left to privacy. We and developed under the common law are thus The contours and limits fact, court, the trier of determined be in the tradition of the case-by-case on a common law. Such deed each basis permits, in- approach requires, particular facts of scrutiny of the case, ordinarily in which identify those intensely on "an impersonal personal the information takes under justifying character” nondisclosure exemption. [Id.] 13(1)(a), discussing §
In
case
Kesten
an earlier
Michigan
510, 528,
Univ, 414 Mich
v
State
baum
(1982),
7; n
327
783
Chief Justice
NW2d
Fitz
noted:
gerald
pri-
Determining
degree of an invasion of
courts,
vacy
a difficult task for
since
should
to do so in
they have demonstrated their abilities
phrase "clearly
unwar-
other areas. When
13(1)(a)
Supreme
interpreting
are Kestenbaum
Other
Court cases
Univ,
510;
(1982);
Michigan State
414 Mich
A. COMMON-LAW JUDGE QUINN’S assert and the intervenor Defendant requested information, released, consti- if would clearly of the late invasion unwarranted tute a Judge helpful privacy. it to our We find
Quinn’s pri- analogize analysis the common law vacy. that disclosure Thus, the effect we evaluate Judge Quinn’s on would have of the test results rights. privacy common-law Torts states Restatement of 6521 of the Section privacy rights regard general of a rule with person: deceased or appropriation of one’s name
Except for the likeness, can be for invasion an action pri- living whose only by a individual maintained Torts, 2d, 6521, p Restatement vacy is invaded. [3 Emphasis 403. added.] (b) provides "[i]n to the section Comment statute, action for the inva- the absence maintained after cannot be sion invaded.” of the individual whose death Along lines, the same Prosser writes: assignable, right privacy] is not [of not survive may may action while the cause of death, according rules of to the survival after his state, right is no common law particular there concerning one who is publication for a of action (4th ed), 117, p [Prosser, already dead. Torts *11 815.] Fry Appeals rule in also followed this The Court of App 725, 730; Sentinel-Standard, 101 Mich v Ionia (1980). 300 NW2d creating Michigan no There are statutes Judge for violation of Quinn on of action right behalf privacy. out with the rules set of Consistent 1991] Swickard Med Examiner v Opinion of the Court Judge common-law Quinn’s above, privacy find we would disputed autopsy rights of the in disclosure virtually nonexistent. to be results RIGHTS PRIVACY FAMILY’S COMMON-LAW B. QUINN argue that further the intervenor Defendant and clearly unwarranted constitute would disclosure invasion Again, family. decedent’s of the analysis to the we look to assist our family’s scope of examine law and common common-law rights results. in the closely most that claim The common-law defendant the assertions resembles intervenor fami- would violate that disclosure right ly’s privacy ing private of embarrass- is disclosure Appeals Fry, the Court facts.10 embarrassing pri- public disclosure of that stated "requires information the disclosed that vate facts person highly and of to a reasonable offensive public.” legitimate 101 Mich to the concern no App Brown, 401 Mich v also Beaumont 728. See (1977). 80; 257 NW2d (a) §6521 the Restatement Comment Torts states: right protected for invasion the action Police, supra, pp Dep’t n 9 v of State in UPGWA Justice Levin
453-454, 42, n stated: "public the tort of showing would constitute that disclosure A re- private seem to evidence facts” would [Citing private. personal Hubert quested information (Tex Inc, App, Newspapers, 652 SW2d Texas Harte-Hanks 1983).] theory, parties intrusion arguably could assert While “ 'through some requires be obtained theory the information ” Tobin, supra n 9 at objectionable man.’ to the reasonable method case, letter of obtaining in this the information The means 672. request, objectionable to which would be intrusive means is not an person. the reasonable *12 Mich op Opinion the Court right, individ- privacy personal peculiar is a of action privacy ual whose is invaded. cause assignable, it is not and cannot be maintained persons of the individual’s other such members along family, their own is invaded unless his. with at [Id. 403.] subject: on the
Prosser offers a similar comment four, agreed that As to it is one, personal plaintiff’s right a does not is which unless, family, of as is extend obviously members his invaded possible, their own along [Prosser, supra, pp with his. § 814-815.] right Keeping of is a in mind personal right, only be asserted which can rights persons invaded, have we evalu- whose been family’s. rights of ate whether common-law implicated privacy are in the information. Fry, published stat- the defendant an article ing plaintiff’s decedent, husband, perished another woman were believed to have house The article went on to state the a fire. plaintiff of her chil- names and relations plaintiff brought to the dren decedent. against pri- of action defendant invasion Appeals vacy. The Court of referred to the Restate- discussing that a ment of Torts in successful claim embarrassing private facts legitimate pub- requires that the matter not be of lic concern: publicity publications con- "Authorized includes crimes, arrests, cerning police homicide and other
raids, accidents, suicides, marriages divorces, fires, nature, catastrophes death use from the disease, narcotics, a rare the birth of a child girl, twelve-year-old reappearance of one 1991] Swickard v Med Examiner Opinion op the Court ago, years supposed murdered to have been escape policeconcerning report a wild to the genu- many other similar matters animal and ine, popular ap- deplorable, if more or less even g, peal.” pp Torts, 2d, 652D, comment 3 Restatement App 730.] [101 390-391. Mich *13 say The Court went on to that main- of cannot be an action for invasion person concerned, un- relative of the tained pub- brought unjustifiable that relative is into less licity. [Id.] plaintiff could not main- The Court held that the did not action because the article tain a plaintiff, private mat- the the discuss facts about concerning were taken ters her and her children relating public record, to the the material from plaintiff highly reasonable not offensive to a subject person, with a matter and the article dealt legitimate public of interest. Knight-Ridder Newspapers, 10 Med
In Andren v (ED 1984), plaintiff Rptr Mich, sued the the L of after the defen- defendant for invasion recounting published the facts an article dant daugh- surrounding plaintiff’s the the murder of excerpts story supplied from author of the ter. The Michigan diary. Applying law, the the deceased’s plaintiff had no stand- the court determined privacy. ing for invasion to maintain an action private plaintiff’s life court found that the though public, the article even had not been made name, the victim’s identified her as mentioned her mother, gave background on information some family. the statements found that The court regard family not be offensive to the would with person. noted that court also the reasonable Mich op Opinion the Court newsworthy the article was because 1500 miles though murder occurred [e]ven readership, certainly it could from be of concern consider Free Press’s reading public would who leaving high crime of Michi- the so-called glamour gan for the of South Florida. at [Id. 2111.] had stand- the mother no The court concluded ing to sue. Publications, Inc, 419 F2d
In Cordell v Detective (CA 1969), court, Tennessee applying law, for invasion plaintiff’s disallowed the action an article sensa- The defendant wrote privacy. daughter. tionalizing plaintiff’s the murder of bring finding plaintiff could matters, private action for cause action the rule that highlighted court those who personal to be asserted only The court stated: subjects are publication. lapses Consequently, right with death it, person enjoyed the for this kind of invasion who and one cannot recover *14 privacy of of a rela- tive, relationship. matter close the no how [419 F2d 990-991.] The went to discuss the behind policy court on the rule: not policy underlying these limitations is unwisely wary hard law is not of to discern. The emotional; injury purely is actions for danger Torts, which spurious great. is too See Rest 2d of claims (1966). . 436A . . § it, put right "if the here As one court asserted sustained, fix it be difficult to its were would v Co, 275, Post 327 Mass Kelley
boundaries.” Pub (1951). 286, 277; relative could sue? 98 NE2d How distant At what relational distance danger feigned claims overcome does the likelihood of 991- of real emotional distress? at [Id. 992.] Wayne Med Swickard v Examiner 1991] Opinion op the Court Finally, the court wrote that prevailing authority, would which we believe Tennessee, regard an in- be followed does daughter giving rise to a jury inflicted on the right. in her own cause of action the mother at [Id. 992.] City Artesia, 339; 108 NM 772 P2d Smith v (1989), plaintiffs defendant, claim- sued
ing rights that their constitutional were learning police, in violated after investi- gating plaintiffs’ daughter, cir- the murder of the photographs culated nude of her which were taken deciding Before the constitutional after she died. question, the common-law the court discussed right privacy. The court stated: commentary supports a cause of action Isolated private the relatives of a decedent whose life is
for publicized. E.g., Green, Interests, 29 Ill Relational (1934). 460, judicial L Yet concerns Rev 485-490 framing scope possible of the tort and its about misuse, permit as well as traditional reluctance emotional, damages solely have out- are weighed to abuse of the dead. natural revulsion Broadcasting Corp, Supp 472 F See Justice v Belo 1979). (ND Tex, great weight 147-148 against granting relatives of a judicial authority is decedent a cause of action for invasion arising Annotation, the decedent. See from disclosures about Privacy by Invasion of Publication Plaintiff, Dealing 18 ALR3d With One Other Than (1968) Restatement, Reporter’s at .... Note supra, 6521. [Id. 341.] right general rule that We follow the personal, the relatives of deceased *15 persons objects publicity may not main- who are of privacy of unless their tain actions for invasion Mich Opinion of the Court no relational There is own is violated. Michigan. agree Fry right privacy in We with occur, must be the relative that for an invasion to brought "unjustifiable publicity.” into FAMILY’S
C. CONSTITUTIONAL QUINN TO RIGHTS PRIVACY point, we also look constitu- As a reference formulating scope privacy in tional notions 13(l)(a). protected "personal § under information” Defendant and family’s intervenor assert right would be constitutional report implicated autopsy results if and test released. were Roe, 599-600; 97 S 429 US Ct
In Whalen v
(1977), the
States
869;
Similar to the common-law right right personal privacy is a constitutional right person only by has whose to be asserted been violated.11 486; Shears, 403 Mich Hubenschmidt (1978), challenged plaintiffs admission
NW2d into evidence of blood-alcohol
test results removed plaintiffs’ from the bodies of the decedents wrongful Court death actions. The consolidated found the results evidence, properly into
could be admitted stating: Law, 631(a), CJS, p 317.
11 16B
Constitutional
*16
Swickard v
Med Examiner
1991]
Opinion of the Court
in
We are not concerned
these cases with issues
seizure/right
privacy, security
of search and
person
in Lebel v Swincicki
(1958)],
to
of
statutory
or
construction which were raised
427;
Mich
(1980).] evaluating right the constitutional of privacy claims, Artesia, supra the court in Smith v City at 342 stated:
Indeed, understanding both a common sense precedent privacy and of the United States Su- preme argue against recognition privacy Court person. Privacy inherently interest personal. eignty an the another right privacy recognizes the sover- privacy of the individual. The notion of expression sovereignty of individual underlies right proposition that the constitutional to to support in ninth privacy finds amendment Constitution, provides which enu- "[t]he Constitution, rights, in the of certain meration shall retained deny disparage not be construed to others people.” [Emphasis original.] parents in Smith held that had no The court against claim the defen- constitutional of their de- photograph dants who circulated daughter. ceased
Although Hubenschmidt and McLean deal with right of under the Fourth Amend- Mich Opinion op the Court rulings equally are ment,12 we believe right applicable under Four- rights pri- teenth Amendment. Constitutional personal. person vacy loses the A deceased are right right privacy, cannot be asserted backdrop against this the next kin. It is 13(l)(a) exempts we claim that assess defendant’s report from dis- contained in the matters closure.
IV. ANALYSIS *17 13(l)(a) recognize protects § that information We "clearly it from when would constitute disclosure privacy.” invasion of an individual’s unwarranted (Emphasis added.) only individuals we concern Judge family. and his Quinn with are ourselves Defendant has proving that the burden of argues applies, privacy exemption and defendant only that would invade decedent’s and rights. family’s privacy law and constitu- of the common
Our review points helpful given law insofar as we are tional is through subjective highly area of reference provided Legislature has little the law where guidance statutory the notion con- on tained in the foia. case, find that disclosure of the
In the instant we report not threaten and test results would rights Judge any privacy under Quinn foia. regard, majority rule under the this we note privacy rights 551, 5 USC federal foia, rights.13 expire Further- with holder 12 whether Hubenschmidt addresses federal It is clear However, right privacy. Michigan Fourth constitutional 1963, 1, art 11 are considered to be substan Amendment and Const tively the same. 13 (SD 216, NY, 1981); FBI, Supp F v 632 227 Rabbitt Diamond Swickard v Med Examiner 557 1991] Opinion of the Court more, provide the common law and constitutional law rights pri- of action for invasion of vacy perish with the individual. accept position
We further decline to defendant and intervenor the material "personal, embarrassing” intimate, or to the fam- ily, per- and that it constitutes "information of a findings sonal nature.”14 The of the medical exam- Dep’t Force, 1065, (SD Supp NY, 1974); of the Air F383 1070 United Schlette, (CA 9, 1988). States v 842 F2d Dep’t Services, The dissent cites Marzen v of Health & Human (CA 7, 1987), support position 825 F2d family’s its that the privacy rights under the foia would be invaded disclosure of the autopsy report. However, distinguishable Marzen is from the instant Marzen, baby case. In esophagus. syndrome surgery was born with Down and a blocked When faced with a choice of to correct esophageal problem, parents against surgery decided and chose only baby baby to treat the shortly enhance its comfort. The died thereafter. plaintiff requested infant Doe’s medical records under the foia, federal 552. USC The court discussed the records which were sought: plaintiff seeks [T]he access to the intimate detailed medical condition, deteriorating records which chart the infant’s con- parents doctors, anguished
versations between his and the parents. reactions of the infant’s F2d [825 1153.] justified The court determined that refusal to disclose the records was " exemption protecting 'personal under and medical files and simi- clearly lar files the disclosure of which would constitute a unwar- ” *18 personal privacy.’ ranted of invasion[ ] Id. at 1154. parents While it is true that the court found the would suffer an released, invasion of records reflected not tained intimately under the foia if the records were the only baby, they the condition of the but con- personal parents. parents information about the were process death, paren- involved with the of the infant’s baby’s undoubtedly tal decisions which affected the reflected in the medical records. In condition were contrast, the records at issue in any the instant members of family case do not contain intimate details about Judge Quinn. Another case relied on the dissent is Badhwar v United States Force, (1987). Dep’t App 397; of the Air 264 US DC 829 F2d 182 In Badhwar, the court remanded because the trial court did not consider requests portions autopsy reports exemption the for certain of under (invasion personal statement, privacy). 6 of In an isolated and with virtually analysis, presumably no the court stated that some reports "would not be of a kind that would shock the sensibilities of Mich op Opinion the Court solely family. deceased, the to the iner relate concerning family private be the would No facts if of information. Even the release the revealed the illegal results were to disclose Judge the Quinn in of at narcotic the blood stream any death, not reveal time of the disclosure would family personal the of the deceased. to information It lifestyle on the of be at best a comment would way the reflect on the deceased and in no lifestyle would family Furthermore, the of member. alleged surrounding suicide of circumstances public figure Judge 36th District and Chief legitimate public are concern.15 Court matters privacy, Upon law of the circum- review the leading legal surrounding the death of a stances figure community, in fact view the prodisclosure statute with nar- that rowly the foia is a exemptions, we conclude that de- construed failed to meet his burden that fendant has autopsy report results are "information test Having personal initially no nature.” found that privacy” threatened, we need not "invasion of is "clearly an invasion was unwar- address whether ranted.”16 surviving analysis, clearly 401. the last kin. Others would.” Id. at In request autopsy reports court did not for Badhwar consider exemption 6, under but remanded. case, determining the involvement of interests " 'customs, mores, ordinary helpful courts find it to look to the Kestenbaum, community 7. In ....’” 414 Mich n
views of Wayne County regard, practice this Examiner from 1972 to 1988 was to treat ogy reports public upon request. Apparently, changed we note that Medical autopsy reports and toxicol to the records and make them available longstanding practice has the The years. fact the custom within the last three years upon request prior lends release the records sixteen support implicated by to our view no interest would be release of the examination results. 13(l)(b)(iii), heavily Justice relies on autopsy report the law-enforcement a law-enforcement Levin arguing exemption, causing which without an invasion record privacy. cannot disclosed However, pertaining exemption to law-enforcement re- *19 1991] Swickard Med Examiner op Opinion the Court V. PHYSICIAN-PATIENT PRIVILEGE argue Defendant and the also intervenor 13(l)(d) 13(l)(i) justify § § defendant’s refusal physician- to disclose the documents because the patient privilege bars disclosure the informa- provide: tion. These subsections (1) public A body may exempt from disclosure as a record under this act:
(d) specifically Records or information described exempted by from disclosure statute. (i) subject physi- Information records cian-patient, or minister, priest psychologist-patient, practitioner, privi- Christian or other Science lege recognized by statute or rule. court [MCL 15.243(l)(d)(i); 4.1801(13)(l)(d)(i).] MSA physician-patient privilege is set out in 600.2157; MCL MSA 27A.2157: law, Except provided person as otherwise duly shall practice surgery authorized to not medicine or person profes- disclose information that the acquired attending patient has sional character, necessary if information was person prescribe patient to enable for the physician, patient do any a surgeon. or to act for the as a properly is cords not an issue which is before this Court. Defendant justifying autopsy report has burden of his refusal never to disclose argued exemption test results. Defendant below this 13(l)(b)(iii) applies, application nor did defendant raise his 7.302(F)(4)(a) appeal. leave to MCR states: Court, appeals Unless otherwise ordered shall be application limited to the issues raised in the for leave to appeal. Mich op Opinion the Court question must answer whether we *20 privilege doctor, in a situation attaches to where autopsy, acquires performance informa- the tion about the deceased. of an Resten, 372
In
v
Schechet
(1964),
346, 351,
the
3;
In Estate of Green (1989), App 478, 489; 438 NW2d Mich Court autopsy fit within whether considered wrongful privilege in context of a death action. The Court stated: performing of an very It is clear to us that from, on, autopsy withdrawing of blood and the discharged by not actions body Mr. Green’s were attending Mr. county medical examiner while treatment, patient purpose for the as a or Green surgery. physician-patient No relation- advice because, Kopp per- ship at the time Dr. arose acts, the medical Mr. Green was alive. formed arose; relationship physician-patient there- "No fore, privilege no existed.” physician-patient Os- Fabatz, 450, 456; App v 105 Mich NW2d born (1981). agree. privilege purpose of the is to
We relationship doctor-patient protect and insure the two are confi- that communications between 1991] Swickard Med Examiner Opinion of the Court dential. Since there is no communication in an autopsy, applying privilege autopsy to the purpose situation would not further the of the act. privilege provides Furthermore, informa- protected "necessary tion is which is to enable the person prescribe patient physician, for the as a patient surgeon.” or to do act for the as a added.) (Emphasis Certainly, per- when a doctor autopsy, prescribing forms an the doctor is not per- treatment deceased; nor is the doctor forming surgery. acquired per- Information in the scope formance of an the falls outside the privilege.
VI. EVIDENTIARY HEARING *21 We are also asked to decide whether the trial properly evidentiary hearing court ruled that no required. persuaded was We are not that the trial refusing evidentiary hearing. court erred in argument Defendant’s essential is that since he proving exemption has the burden of applies, he should be allowed to establish a record. argues: Defendant also However, by denying evidentiary Defendant an
hearing, Defendant has had to rely on each court to power use its discretionary pleadings allow descriptions which contain pro- cedure, and which describe the contents of a medi- cal examiner’s only file. Not was Defendant denied opportunity this case to cross-examine affiant, Plaintiff’s but also the Plaintiff was denied Defendant, the opportunity to cross-examine whose testimony by was admitted written statement the trial court. Apparently, only witness that defendant would have However, offered was himself. the trial Mich Levin, Separate Opinion regard parties stipulate to the with
court had the testimony, proposed of the defendant’s substance and the stipulation on the record. was entered permitted Therefore, proof. his offer of defendant undisputed facts, of the On the basis development judge no trial could ascertain factual agree satisfy We defendant’s burden. which would with the trial court sufficient that the record was evidentiary ruling without formal to make hearing. Appeals agree the Court We also with 13(l)(m) exempts arguments § dis- defendant’s Equal Pro- and that the foia violates closure court; the trial were decided tection Clause preserved arguments therefore, are not Dwyer, Jaguar appeal. Cars, Inc, 167 Inc Joe (1988). App 672, 685; Mich NW2d
VII. CONCLUSION summary, the au- find that disclosure of we topsy report would not test results "clearly unwarranted invasion amount Judge family privacy” his of the Quinn late 13(l)(a) Furthermore, find § of the foia. we under privilege inapplicable physician-patient that the 13(l)(i) 13(l)(a) § Thus, this case. the facts of exempt from disclosure. do not the documents Finally, for an that there was no need we also hold Accordingly, evidentiary hearing in the trial court. Appeals. affirm the decision Court we *22 Brickley Boyle, JJ., Cavanagh, C.J., and and Riley, J. concurred with only. J., in the result concurred Griffin, question (separate opinion). J. Levin, 1991] Swickard v Med Examiner Separate Opinion by Levin, county may whether a medical examiner withhold copies autopsy report of an test requested results under the Freedom of Informa- ground tion Act on the that disclosure would "clearly constitute a unwarranted invasion of an privacy” individual’s or an "unwarranted invasion personal privacy.”1 of family
I would hold that of a deceased provides: The Freedom of Information Act (1) public body may exempt A public from disclosure as a record under this act: (a) personal public Information of a nature where the disclo- sure of the clearly information would constitute a unwarranted privacy. invasion of an individual’s (b) Investigating compiled pur- records for law enforcement poses, only but to the extent that disclosure as a record any following: would do (iii) personal Constitute an privacy. unwarranted invasion of 15.243(1); 4.1801(13)(1).Emphasis MSA [MCL added.] It is unclear whether there is a real or intended difference between "clearly unwarranted privacy” invasion of an individual’s and an personal privacy.” Arguably, “unwarranted invasion of privacy exemption may the second justified on less evidence of invasion of Further, exemption than the may first. the second relate to "persons” invasion of the is the first tion of other than the "individual” who subject requested Conversely, records. it be that the exemption permits withholding "[ijnforma- disclosure where the personal respect "individual,” nature” in [is] whether subject requested or not the record. I would reach the same provisions. conclusion on the basis of either of these construing (5 552), the federal Freedom of Information Act USC Appeals the United States Court of for the District of Columbia 6, exemption Circuit when a document sonal permits said: "Unlike only which nondisclosure portends 'clearly per- unwarranted invasion of 7(C) privacy,’ exemption require does not a balance tilted emphatically in favor of Dep’t disclosure.” Bast United States Justice, (1981). App 433, 436; Exemption US DC 665 F2d 1251 corresponds 13(l)(a), 7(C) exemption the federal § corre- 13(l)(b)(iii) sponds Michigan foia, although there are language arguably significant. differences that are Similarly, Congressional Syndicate Dep’t see News v United States Justice, (D 1977). (The Supp DC, 438 F difference is investigatory attributable to the inherent distinctions between files files.”) "personnel, medical, and similar *23 536 Mich
564 by Separate Opinion Levin, J. report person autopsy privacy a interest an has report toxicology results, a that such and and test personal "[information a test results contain County Wayne nature,” Ex- Medical and that demonstrating aminer has sustained the burden clearly unwar- disclosure would constitute a Judge personal privacy of ranted invasion of family. Quinn’s part primarily conclude, in, I on the basis of Supreme analysis Court of the United States Reporters Dep’t v of Justice
in United States
Press,
US
for Freedom of
489
Committee
773;
applying
(1989),
1468;
109
—In I conclude that an pre- report toxicology topsy results and test county pared ex- medical and obtained compiled "[^Investigating records aminer are purposes”;3 law enforcement why part v, I —In conclude that report toxicology are "[i]nfor- test results and personal family nature,” and the mation of Dep’t warranted (Levin, public pose exemptions, All foia information See foia. See Int’l of State n 1. J.) Some of foia. and unwarranted because Police, Union, interests they exemptions 422 Mich requests United Plant Guard Workers of America require and thus consideration of disclosures, need not further 441; 432, are a court terms absolute. require a distinguish NW2d balancing core the core purpose between (1985). pur- Swickard v Med Examiner 1991] Separate Opinion Levin, person pri- of a deceased has an "individual vacy” "personal privacy”4 and a interest in an autopsy report toxicology results; test part why vi,
—In I conclude that disclosure autopsy report of an test re- concerning private gen- sults erally *24 citizen would nothing about,
reveal little or nor shed any light government on, the conduct of a agency why official, or and I reach the same presented, conclusion, on the record here re- specting autopsy report an and test concerning Judge results Quinn, an elected public official. suggestion Judge
There is no Quinn was guilty of hint, misconduct office. There ais solely discovery para- based on the of narcotics phernalia mother, in the home of his where he house-sitting death, was possibly at the time of his that he guilty personal misconduct, of
was the use prohibited law, substance violation of at the by death, time of his to have been caused found the medical examiner by gunshot a self-inflicted question presented wound. A different would if be Judge might occupying public Quinn office, were still again sought
have election to office.
i majority’s analysis, despite disclaimers, The es sentially equates common-law and constitutional privacy rights rights privacy with the statuto protected rily majority under the foia. The holds required solely that disclosure is on the basis of doctrines, common-law and constitutional not and does recognize any privacy other interest that was4 Id. Mich by Separate Opinion Levin, J. protected at common law or the constitu- not tion. Judge majority first, determines
The family could not maintain common-law Quinn’s damage if the au- action for invasion public, topsy report test results were made right and, second, because the constitutional personal right privacy expired decedent, to the such along Judge not be Quinn with family. majority concludes his asserted that because "no 'invasion privacy’ is threat- ened, we need not address whether invasion ”5 'clearly unwarranted.’ exemptions invasion-of-privacy should only privacy rights including construed as those protected by cognizable at law or common By imposing on the interests constitution. protected under the foia limitations in common- privacy doctrines, ma- law constitutional rights jority implicated the has persons living persons as those well as of deceased persons. and of the families deceased Supreme provided The United States Court *25 living greater protection privacy rights of of recently persons the when it said deceased meaning statutory privacy "question of of the is, course, the [federal] foia of not same under the question might lie the tort action whether a question privacy or the an invasion of whether by privacy protected individual’s interest is p Reporters supra, Committee, 762, Constitution.”6 n 13. added.) (Emphasis 5Ante, p 558.
6
Appeals
of
for the Seventh Circuit said:
The United States Court
privacy may
Although the common law doctrine of
assist
designed
analysis,
exemption
privacy
not
under foia is
Congresfs]
prevent
tortious at common law.
what would be
protected
privacy
under foia extend
intended that
beyond
interest
Dep’t
v
of Health
Human
the common law.
&
[Marzen
1987).
(CA
Services,
1148,
7,
Emphasis
F2d
1152
added.]
Swickard
Med
Examiner
1991]
Separate
Opinion
Levin, understanding
Judicial
under
applicable
be informed
law
in non-
foia
actions,
but
these several
interests
foia
particular, although
are not coextensive. In
a de-
family may
cedent’s
not be able to maintain a
common-law action for disclosure of the
results
autopsy
toxicology analysis,
or
that does not
question
Wayne County
resolve the
whether
may exempt
Medical Examiner
from disclosure an
toxicology analysis
or
because disclosure
would constitute an unwarranted invasion of the
personal privacy
individual and
of the decedent’s
family.7
majority unduly
focuses on whether
majority
prior
suggesting
While the
cites
decisions of this Court
principles may
helpful
resolving
that reference to common-law
exemption
provisions, Riley, J., ante,
p
claims of
under 546,
provisions
this Court has not asserted that such
should be read
compel
objecting party
prevail
to
damage
disclosure unless an
could
in a
Indeed,
privacy.
passages quoted by
action for invasion of
majority emphasize
particular
the
of each
the need to
facts
"scrutin[ize]
case,
identify
ordinarily impersonal
those in which
informa-
personal
intensely
justifying
tion takes on ’an
character’
nondisclo-
privacy exemption.”
Dep’t
Employees
sure under the
State
Ass’n v
(1987)
104,
Management
Budget,
123;
&
428 Mich
NW2d
J.).
added.)
(Emphasis
autopsy report,
(Cavanagh,
The details of an
Employees,
unlike the
of names
list
and addresses at issue in State
surely
"impersonal
are
information” in the
if
first instance. Even
characterized, however,
such intimate details could be so
their revela-
compelled by
application
tion should not be
the foia context.
mechanical
tort law
underlying
majority’s
qualita
analysis
The rationale
tort
tively
The
purpose
exemption.
different from the
of the foia’s Artesia,
339;
majority
City
cites Smith v
108 NM
568 438 536 Mich Separate Opinion Levin, constitutionally pro- remedy is a tort or a there right. tected
h prodisclosure is, indeed, statute. It The foia a compiled requires or maintained that all records "public body” unless the be made available exemption.8 Where record is within an enumerated exemption on, the is relied court an enumerated novo, the de must determine matter asserting exemption body has the burden exemp- sustaining applicability of the asserted tion.9 request ordinarily person making an foia
A requesting particular a reason for need not state this said that Justices of Court have material. neither quest making identity person a re- sought purpose is nor the for which record whether disclosure is relevant to a determination particular would constitute an unwar- of a record privacy.10 ranted invasion " rule,” id., p policy unwisely wary danger follows: 'The law is not behind the emotional; injury purely is of actions for which ” great.’ spurious is claims too case, publication, and the In a tort there have been disclosure policy issue for the courts is whether there should be a common-law case, question damage remedy. agency is In an is whether justified, legislatively public policy, in consistent with the declared and, hence, withholding publication, subject from matter presumably published. not be that otherwise would 4.1801(3X1). 15.233(1); MCL MSA 4.1801(10)(1). 15.240(1);MSA MCL circumstances, ordinary inquiry identity request of a into ing pointless purpose particular request ultimately material once party be will because, prodisclosure policy, under the foia’s person other who asks it. See released becomes available Univ, 510, 528; Michigan 414 Mich NW2d Kestenbaum State J.). (1982) (Fitzgerald, grants a court de novo review of When request, however, narrowly possible, more constrained release is particular public-interest purpose some courts have held that upon against predicated which disclosure balanced Id., sought. pp 528-529. nature of record *27 569 1991] Med Examiner Swickard by Separate Opinion Levin, J. Supreme similarly Court has The United States privacy is war- an invasion of that "whether said purposes for which turn on the cannot ranted (emphasis request information is made” identity original), generally, re- that, "the bearing party questing the merits of his has no on accordingly, request,” that, or her foia rights from different media11 "are no of the news might by any third other be asserted those that employer” neighbor prospective party, as a such added). approval quoted (emphasis with The Court " explanation: con- 'The Act’s sole Davis’ Professor public or not must made is what be cern with ” pp supra, Reporters public.’ Committee, made prelim- Davis, act: A The information 772. See (1966-67). inary analysis, 761, 765 34 Chi L R U addressing requests claimed to be within justices exemption, of this Court requests disagreed to be are whether such have pur- regard to the act’s "core evaluated without appropriate pose,”12 it to balance is and whether against "public in disclosure interest” right privacy.”13 "individual’s
A signed by justices opinion ruled that has four No purpose of inter- the balance the core foia, Court, respondents rights press "the of the two As stated Committee, supra, p Reporters 771. . . . in this case Kestenbaum, 441; supra. UPGWA, supra, p n 10 n 2 Budget, Dep’t Management n 6 Employees & Ass’n v 13 State supra. balancing expressly substantively apparently form of similar An exemptions language than the other of certain for in the called privacy (1), (n), (o), (t); 15.243(l)(c), MSA exemption. MCL (t). 4.1801(13)(l)(c), (1),(n), (o), and Mich Separate Opinion Levin, nondisclosure, the use to in disclosure and
ests
put,
are
the disclosed materials
which
analysis
privacy-exemp-
always irrelevant
opinion signed by major-
Absent an
tion claim.14
ruling,
ity
has not been "an authoritative
so
there
interpretation
binding on this
under
Court
of stare decisis.”15
doctrine
Dep’t Manage-
Employees Ass’n v
In State
Budget,
104;
Mich
15
justices partic
Plurality
majority
no
decisions in which
of the
reasoning
ipating agree
interpretation
decisis.
(1976).]
are
as to the
not an authoritative
binding
on this Court under the doctrine
stare
Slotkin,
105, 109;
[Negri v
Mich
244 NW2d
397
98
Michigan
majority
rule in
is that a
of the Court
The clear
agree
ground
on a
to make
must
for decision in order
binding precedent
merely majority
If
for future cases.
there is
a
result,
particular
parties
then the
the case are bound
to
authority
beyond
judgment
case is not
but
Anderson,
155, 170;
parties. [People
immediate
NW2d 461
v
389 Mich
205
(1973).]
Corp,
655;
Similarly,
Chrysler
Dean
434
455 NW2d
see
v
Mich
699
Beach,
450, 475,
(1990);
10;
(1988);
People
n
861
v
429 Mich
NW2d
(1987).
Mitchell,
364;
People
under one foia; opinions Accordingly, opinion. the several Employees Ass’n, justices like the in State opinions of Kesten in the earlier cases several Michigan Univ, 510; 327 414 Mich State v baum (1982), Union, United Plant Int’l NW2d Dep’t Police, of State v of America Guard Workers 422 Mich (1985), are not 432, 439; 373 NW2d binding decisis. the doctrine of stare under
B opinions in State UPGWA The lead uncertainty Employees whether Ass’n noted Dep’t Supreme Court, in the United States 1592; 48 L 352; 96 S Ct Rose, 425 US Air Force balancing (1976), test.16 had mandated 2d 11 Ed Reporters States Su- Committee, the United In regarding uncertainty put preme to rest the Court signed by opinion meaning Rose. articulating justices, read Rose the Court seven exemption balancing for the federal test a set forth 7(C), corresponds the Michi- §in which 13(l)(b)(iii): exemption gan un- document private disclosure of a [W]hether 7(C) turn on the must Exemption is warranted der nature its relation- requested document *29 Freedom purpose of the ship "the basic light action to open agency Act 'to Information of ” Air Force v Department public scrutiny.’ particular on the Rose, rather than 425 US at being re- is the document for which purpose Committee, p supra, [Reporters quested. 772.] 16 unnecessary opinion it signers found in UPGWA of the lead The Rose, test, balancing was in stated in dictum whether to decide mandated was invoked. exemption privacy Michigan foia where a or Employees the federal Ass’n, signers of the lead In State balancing test mandated a opinion had not that the Court concluded opinion reasons, signers of the lead Rose; other for this and in balancing provide test. Michigan a does not that concluded Mich Separate Opinion Levin, J. opinion, concurring justices, in a
The other two 7(C) exemp- privacy agreed applying that, employed.17 balancing tion, should be a test Reporters Committee, said Court, in The agency policy informa- disclosure unless of full the tion is right exempted "focuses on the citizens’ up government is their about 'what be informed to.’ ”18 added.) (Emphasis Court added: The "by purpose statutory not fostered is —The private citi- about of information govern- in various is accumulated zens mental files but nothing little or that reveals agency’s own conduct.”19 about involved, concluded, balancing majority the interests after The private exempt categorically from disclosure a the fbi could convictions, case-by-case bal without of arrests and citizen’s record ancing. balancing, case-by-case concurring justices favored The applicable "categorical balancing” to all that a were not convinced correct. such information was required balancing enforcement records majority because hoc said that ad request or information party’s for law "a third about a citizen’s reasonably expected to invade that private be citizen can request informa- privacy, seeks no 'official that when the agency, merely Gov- records that the but tion’ about a Government storing, is happens invasion of to be ernment 'unwarranted.’ ” Id., p 780. case, categorically fbi could The Court said that such record, case-by-case private exempt without citizen’s from disclosure balancing: obscurity maintaining practical of of interest in high. subject always rap-sheet will When information rap private the information citizen and when sheet is a such is in the Government’s a record of "what interest the FOiA-based Parts iv and holds for a class of cases compilation, than as as a rather control to,” up the Government is 7(C) apex Exemption protected by at its while fact its nadir. See in disclosure is at disparity interest justice v, supra. on the scales Such a regard to individual circum- without bright-line stances; present, may rules are thus the standard virtues adjudication to ad hoc the difficulties attendant [Id., p 780.] be avoided. 18Id., p 773. added.) (Emphasis Id.
1991] Med Examiner Swickard Separate Opinion Levin, J. request —Responding for the to a media "rap private sheet” disclosure of a citizen’s fbi light any conduct of not shed on the "would agency or official.”20 Government "rap provide de- sheet would —While story,” in that "is not tails to include a news Congress public for which the kind of interest although words, the foia. other enacted undoubtedly public interest there is some [emphasis history anyone’s added], criminal way especially history if the is in some related dealing subject’s official to the with a purpose agency, central is to or the foia’s [emphasis in the Government’s ensure that original] sharp eye opened to the activities be public scrutiny, not that information about [emphasis original] private citizens happens of the Gov- to be the warehouse ernment be so disclosed.”21 construing of our cases
—"[I]n none appropriate to order a found it foia have we request agency a[n] to honor Government foia particular private about a for information added.)22 (Emphasis citizen.” provides that an invasion The exemptions giving to either of rise (b)23 13(l)(a) "unwar- §in or must be delineated ranted.”24 vasion in- An whether an asserted assessment "clearly "unwarranted,” is added.) (Emphasis Id. 21Id., p 774. 22Id., pp 774-775.
23See n 1 for text.
24See n 1. Mich Separate Opinion Levin, implicates
warranted,” what "warranted.” specific inva- reference to an 'unwarranted’ "[T]he privacy” that "a court must bal- sion indicates *31 against public the the interest in disclosure ance Legislature exemption the interest”25 intended protect. A an invasion of determination whether require inquiry generally an is "warranted” will into request- potential26 justification for the phrase qualifying "unwar- or not. The warranted meaningless justifica- if the ranted” would become disclosure, de view of tion for or court’s novo27 public disclosure, the quence, interest in was of no conse- any justification if that
for were so—if good really any as other —invasion were privacy always To so con- would be warranted. contrary public clearly clude would policy, expressed in the that at some least foia, privacy are "unwarranted.” invasions of conclude, I the structure and on basis of language analysis of the of the and the Reporters Supreme Court in Com- United States making mittee, court, in determi- that a circuit its nation of the merits de novo of an asserted exemption, the interests in disclo- must balance assessing in the interest sure and nondisclosure. In right disclosure, is on "citizens’ to be the focus government up is informed about 'what their ”28 justified generally if it to.’ cannot be Disclosure 25 added). Committee, Reporters supra, p (emphasis controlling. justification requester is not See asserted Committee, 772, pre- Reporters supra, p quoted immediately in text ceding n 17. Committee, Reporters supra, p that Court said requirement the court "shall the matter de novo” —set determine 10(1), supra "specific Michigan in n 9 reference forth foia § —and privacy” must invasion of indicated that "a court to balance 'unwarranted’ public against Congress in the interest interest protect.” exemption intended Committee, supra, Reporters p 773. Med Examiner Swickard 1991] Levin, Separate Opinion nothing” about, fail to reveal "little or would light "any Government the conduct of on shed agency or official.” equate curiosity "the kind with
Public does Congress public [and the which of Legislature] interest there "is the foia.” While enacted anyone’s undoubtedly in crim- interest some report history test [or inal results], way especially history if the some public official, central "the foia’s related to” a purpose activi- that the Government’s is to ensure public scrutiny, opened sharp eye of ties be to the private citizens information about not happens Govern- to be the warehouse (Emphasis original.) ment” be disclosed.29
iv *32 Judge questions addressing the whether Before protected family has a interest Quinn’s under so, whether, if a different and foia, f pri- public and of the of the balance assessment vacy justified he or mandated because interests is Judge Court, I 36th District of the was the Chief first address question whether prepared report and test results and by county "[in- examiner are medical obtained compiled vestigating for law enforcement records purposes.”30 acknowledge relied medical examiner
I 13(1) exemption, general privacy and § on the 13(l)(b)(iii) exemption investi- for § on the pur- compiled gating for law enforcement records litigation. private poses. however, An not, is This affecting citizenry importance issue of exemption large being is decided. at 29 Id., p 774. 30 1. See n 536 Mich
576 by Opinion Levin, Separate compiled investigating law enforce- records for purposes clearly involved. ment Lipiec Zawadzki, 197, Court, in 346 Mich This (1956), 201; 77 763 held that when the NW2d by Legislature, 181,31 1953 PA the enactment of county examiner, the office of medical created coroner, and transferred the office of abolished duties examiner,32 it of the to the medical coroner "inquisi- medical not transfer to the examiner did investigative powers distinguished from au- tional consequently thority,” and "the act extends power investigative only” to the medical examiner. relevantly parenthetically, Court observed and present inquiry, "[p]rosecuting that general attor- to the examples attorney neys are having investigative inquisitorial but not officers powers county now
and the
medical officer
be-
(Emphasis
201,
Mich
n *.
comes another.” 346
added.)
medical
Before the office of
examiner
cre-
inquests
by jus-
181,
were
ated
Act
conducted
persons
peace33
of the
and coroners34"of such
tices
31
5.953(1)
seq.
seq.;
et
MCL 52.201 et
MSA
provisions
having medical examiner under the
In counties
act,
powers
duties vested
in the office of
of this
coroner are
medical examiners
law
hereby
county
to and
in the
transferred
and
vested
52.213;
deputies.
their
MSA
[MCL
5.953(13).]
RS,
167,
provisions
compiled
33 1846
Ch
1-11. These
were
with
§§
seq.;
seq.;
as 1857
et
7970 et
1897 CL
amendments
CL 6089
CL
seq.,
part
seq.; 1915
et
as
11818 et
CL 15645
reenacted
Procedure,
XIII,
seq.,
1927 PA
ch
et
Code of Criminal
compiled
seq.;
seq.;
1929 CL
et
773.1 et
MSA
CL
seq.;
seq.;
seq.;
1970 CL
et
MSA 28.1169 et
MCL 773.1
28.1169 et
773.1
*33
seq.;
seq.
et
28.1169 et
MSA
incorporated
provides
county
justices
peace
of
in
34
A investigate by "the cause Act 181 to authorized persons who in all cases of of death and manner by violence; or whose to their death have come unexpected; atten- medical or without death prior during hour of to the 48 hours dance any, attending physician, if unless the death accurately cause to determine able coroner, by inquests held a applicable held or to be are made peace upon justices to such such powers of the relative that all inquests conferred Further, holding coroner coroners. are conferred on power inquest to summon the attendance have the an shall surgeon, neces- such attendance "competent he shall deem whenever affording employed reasonable sary; ground in cases produced by poison.” and a chemist suspicion that death has been 7981-7983; compiled 1897 with in 1871 CL provisions of Act were 88, 11832, 11833; of Act The substance 1915 CL 15656-15658. CL amendments, cedure, part Criminal Pro- of the Code of was reenacted 17414, XIII, 12, 13; compiled 175, as 1929 CL 1927 PA ch §§ 773.12, 28.1165, 28.1166; 773.12, 773.13; 1970 CL 17415; MSA 1948 CL 28.1165, 773.12, 773.13; 28.1165, 28.1166; MSA 773.13; MCL MSA 28.1166. 12, Chapter Procedure the Code of Criminal XIII of 13 of Sections 506, Chapter XIII to by repealed PA which amended were justice magistrate, things, than a provide, among of the magistrate a rather that other coroner, inquest, to confer on the peace an shall hold or subpoena require by the attendance of power to chemist, employ surgeon if there is competent physician reasonable poison, inquest produced by suspicion ground death has been that testimony transcript at an provide a written by "prosecuting requested prepared unless not be need examiner, magistrate, judge in or of the court attorney, or a medical manslaughter, [murder, judicial the offense district which tried,” the the provide and amend form and to could be assault] "inquisition deceased "came appeared findings jury” regarding if it 773.6- means.” MCL death unlawful to his or her added.) (Emphasis 773.8; MSA 28.1174-28.1176. subsequent compilations. RS, This n 33 for 1. See § Ch 506; Chapter XIII of the Code repealed 1 of 1980 PA section was of Criminal inquest pursuant holding magistrate Procedure, providing now 181, creating the office of medical PA to 1953 chapter. prescribed examiner, procedures in that shall follow 773.1; MSA 28.1169. MCL *34 578 Mich 536 Separate Opinion by Levin, J. appears pro
death . . . .”36It thus that while conducting autopsies for has been succes cedure sively updated, streamlined, routinized, and purpose autopsy of an fundamental nature and resulting report unchanged prior from law. recently Attorney ruled, on the General readings creating 181 office basis of his Act provision of medical examiner and a of the Public prohibiting physician perform- Health Code ing from permission autopsy an without written person assuming purposes custody body of the for burial,37 that a medical examiner who has deter- required by autopsy mined that an is not law is perform autopsy, statutory authority to an without requested if do even so.38 Chapter Procedure, XIII of the Code of Criminal "Proceedings captioned Discovery for Crime,” was amended in 1980 to eliminate the 36 92, 181, 52.202; by PA 1969 PA MCL MSA 1953 as amended 5.953(2). provides Section 2 further for examination where death abortion, otherwise,” is "the result of an that if the whether self-induced or any prisoner county city jail imprisoned, in a "dies while so county body medical examiner” shall examine the of the deceased prisoner. 37 14.15(2855X1) 333.2855(1); provides: MCL MSA performed upon body An shall not be except by physician deceased who has been individual autopsy by
granted perform the whichever 1 written consent to following custody body of the of the purposes of kin of the deceased individual or individuals assumes parent, surviving spouse, guardian, of burial: or next charged by an individual responsibility body. If 2 law with the for burial of the or more custody body, the consent of of those individuals assume ordering prevent the of an 1 is sufficient. This section shall not autopsy by a medical examiner or a local health officer. 38 OAG, 6,696 23,1991). 1991, (August No Attorney part General relied in on a decision of the Court of Examiner, 761, Appeals, 766; App Courts of Wayne Burse v Co Medical 151 Mich (1986), Supreme 391 479 and on decisions of the NW2d construing Scarpaci their statutes. v Milwau- Wisconsin and Vermont Co, 663, 675-681; (1980); State v kee Wis 2d NW2d (1984). Chambers, 234, 239-240; 144 Vt 477 A2d 1991] Swickard Med Examiner Separate Opinion Levin, peace power justice or of a coroner magis- inquest provide that a an conduct inquest pursuant holding to Act trate creating examiner, fol- shall the office of medical Chapter prescribed procedures XIII of low the of Criminal Procedure.39 Code primary apparent function of a It is per- whether a is to determine medical examiner son’s death that and public policy means, and of unlawful was the result *35 authorizing autopsy an for the sole reason exception testing toxicology to an —as Health Code40 in the Public set forth family determines the deceased that whether make autopsy, whether to and thus to have an toxicology report public autopsy or test an of- a criminal to determine whether results —is 39 773.1; 506, amending MCL MSA 28.1169. 1980 PA conducting amendment, provision an made for Until the 1980 RS, petition Ch inquest than five citizens. on the of not less upon provides the subsequent compilations. Act 181 n 2. See 33 for § Attorney attorney prosecuting Gen- or written order of the the eral, county, signed by filing petition of a upon six electors or investigation of the county an shall conduct medical examiner any surrounding have occurred in death believed to circumstances 5.953(7). 52.207; provision was amended to county. This MCL MSA upon prosecuting attorney "or provide upon determination of by inquest held a an shall be of the examiner the determination 274; municipal judge.” judge 1968 PA court court or a district added.) (Emphasis PA 92. may, in provides county medical examiner 181 also that the Act person body of a deceased of the case where an examination required, carefully perform autopsy reduce or cause and "shall an tending writing every to show and circumstance fact be reduced death, body manner of the cause and of the and the condition together present any persons at the names and addresses with 5.953(5X3). provision 52.205(3); of Act This autopsy MSA . . . .” MCL amended, language quoted subsequently remains but 181 was unchanged. keep a provides "shall medical examiner that a The act further dead, together and with their view found all views of bodies record of 5.953(11), 52.211; that a medical autopsy reports,” and MCL MSA any testify "in required in behalf of the state examiner matter investigation required” under the arising the result of 5.953(12). provision 52.212; Act 181 also was This MSA MCL act. subsequently unchanged. amended, quoted language remains but 40See n 37. Mich Separate Opinion Levin, J. report was committed. Clearly,
fense results, prepared by test when examiner, records "[investigating medical are purposes.” for enforcement compiled law question Judge Quinn’s I turn to the whether protected family statutorily has a interest the foia. A 13(l)(a) speaks, general privacy The in the § and, of an "individual’s exemption, privacy,” (13)(l)(b)(iii) exemption investigat- for ing compiled pur- records law enforcement "personal While "individual” poses, privacy.”41 would, during the lifetime of an "personal” person individual or for whom a record has been compiled by refer to that individual body, include, phraseologies after person, both least, the "indi- person, death of such terms at vidual” interests "personal” *36 person. members of the of a deceased family of the of a deceased privacy family interests recognized protected have as person been Dep’t foia.42 In Marzen v of Health & federal 41 n 1. See 42 556) (ante, majority p privacy rights expire states "that foia FBI, 216, rights.” Citing Supp Diamond 532 F with the holder of the v (SD NY, 1981); Force, 1065, Dep’t Supp v Air F 227 Rabbitt of the 383 (CA (SD NY, 1974); Schlette, 1574, United States v 842 F2d 1988). 9, Diamond, professor sought relating In disclosure of documents academicians, himself, governmental including during surveillance of McCarthy government the privacy exemption. era. The invoked the law enforcement balancing required. The court stated that was sought thirty years Some of the records observed that some of the were over old. The court persons who had been interviewed dead, probably privacy fbi were "in which case their interests are Med Examiner Swickard 1991] Separate Opinion by Levin, (CA Services, Human 1148, 1152, 825 F2d 1987), United States Court of for the Appeals Circuit, observing that "the inter- privacy Seventh the com- protected beyond est under extend[s] law,” from agency exempt mon held that could infant disclosure medical and other records of an esopha- with Down and a blocked syndrome born that, gus. among The court said other considera- tions, "would release of medical and related data more certainly parents almost cause Infant Doe’s . .”43 anguish . . Id., tips p . . . the balance towards disclosure.” 226. diminished say privacy expire at death.
The court did not Instead, that interests government the court that the could search its files to stated living, persons they if or if "have determine involved were still Id., expressed p 227. a desire that their involvement be disclosed.” crashed, Rabbitt, killing persons plane Air two In Force sought injuring a third. The estate of one of the deceased records. The government exemption personnel files. In invoked the for medical and ordering disclosure threatened the required, of crew report, if the medical the court said that the release of individual, balancing any perceive any particular in case fail to invasion but "we ground releasing report the medical of the deceased Id., p member.” 1070. Schlette, newspaper sought presentencing disclosure of a who, report upon prison, from killed the district of a felon his release attorney himself. The who obtained his conviction and then killed reports government were to disclose on the basis that refused confidential court records. stated, disclosure, may ordering "privacy concerns still The court given against But the defendant is militate disclosure case. when dead, case, present ground nondisclosure is in the this in this . . . And there is no evidence foreclosed. [Citations omitted.] anyone the dead defen- that the interests of other than case dant presen- implicated by the contents of the disclosure of added.) (Emphasis report Id. at 1581. tence and related documents.” seeking person agreed that the The court with the district court " adequately any issue in the demonstrated disclosure had 'not public policy any available in the medi debate turns on information already disclosed to the cal records but not oversight public’s record would contribute to the withheld medical ” Rights’] in the matter.’ Id. at 1153. for Civil role Office [the autopsy report Similarly, appear that it does not oversight public’s would contribute to the or any government test results Quinn agency. Judge had used illicit Revelation that family, yet shortly likely drugs add little his before his death would embarrass drug paraphernalia already public knowledge to the home. was found in his mother’s *37 Mich Separate Opinion Levin, J. Appeals for the of States Court The United autopsy said of Columbia Circuit District reports viving sur- "shock the sensibilities that would may withheld, and remanded
kin” be reports case-by-case review of the military accidents. Badhwar aircraft victims of App Dep’t Force, 264 US the Air States United (1987). court, in 397, 401; 829 F2d 182 DC Dep’t Justice, 204 US v United States Lesar (1980), App had earlier 200, 214; 636 F2d DC withholding government’s of records sustained pertaining investigation Dr. Martin to an fbi investigation King, of his Jr., the later Luther assassination. included The excised materials personal nature, the disclosure of a information King’sfamily allegedly Dr. could embarrass which damage reputations. . . . or their and associates exemption for district court sustained [T]he materials, privacy interest finding that these involved sure. in disclo- outweighed interest [Emphasis added.]
B good to a name benefits The lustre that attaches persons hap- family members, other who and also pen The success of name have the same name. judicial elections attests and other candidates good importance Contrariwise, name. to the from the worth on a name detracts a blemish name, render the name liabi- even liability probably lity. to be named It be would Adolph Dillinger, Hitler, James, John Jesse Josef Stalin. probably an asset to be It would Dwight Churchill, Eisen- named John or Winston especially Roosevelt, if one is a hower, or Franklin descendant. good name is rather "[a]
It has been said Wayne Med Swickard v Examiner 1991] *38 by Separate Opinion Levin, J. ,”44 great Maintaining . . .
be chosen than riches good impor- legacy name is of considerable private and, not infre- tance to one’s heirs. The public papers prominent persons quently, are deposited understanding in an on archive public years, they fifty will not be made for over likely and thus until after persons acquainted death of most person papers with the whose deposited. have been
Judge Longworth Jr., benefited, no doubt Quinn, judicial good office, when he ran for from the Longworth pub- father, Sr., name of his Quinn, Michigan pub- of the An lisher Chronicle. article byline shortly Judge lished over Swickard’s Quinn after Judge lineage: Quinn’s died referred to respected "Quinn, heir to one of the Detroit’s most leading emerging names, legal figures.” as one Detroit’s embarrassing Surely, any informa- provided by autopsy and tion disclosure of the test might good name, from that and results might thereby detract to individual members
cause harm family, similarly heirs to Quinn of the who are respected name. Although judged only by theory one should be accomplishments failures, and descendants one’s and other harmed
family and members will benefit by family other do. The what members apple aphorism, "the does not fall far from the experience. tree,” this shared reflects principle, therefore, well as on the author- On ity cases, Marzen, Badhwar, of federal foia language Lesar, of the ex- and because emption includes, least, in terms at the individual person family of the for whom a members record has been compiled agency, I would hold that the individual members 44Proverbs 22:1. 438 Mich Levin, Separate Opinion
family Judge an individual and Quinn have protected by personal privacy interest exemptions of the foia.
c
people’s right of
Swickard contends that
"public
is a fundamental
tenet
access to
records”
Michigan law,
on
v Auditor
and relies
Nowak
(1928),45
General,
200;
243 Mich
A pre-FOiA had the seeking person establishing he could maintain burden of Nowak, mandamus, for superin- in as in or action Newspapers. Booth control, in Under tending as the public body justify- the the has burden foia, an foia re- ing nondisclosure.47 Swickard made A if question might presented be quest. different count in his separate pre-FOiA he had filed a complaint. 45 Nowak, granted manager newspaper was editor permit inspec to to
writ of mandamus directed tion of the Auditor General public records. Newspapers right of in said that the access was The Court Booth absolute, Legislature may "by provid access not ing and that the restrict Further, opposed 'public’ 'private’ definitions of as to records.” legislature may
the restrict be access, intended courts determine public access cases where harm to interest outweigh right of members of the to have said harmed, reputations may pas- or or . . . where be time, [Id., pp Emphasis fancy. or 207-208. added.] whim 10(1) provides: Section public body to its denial. burden is on the sustain [MCL [T]he 4.1801(10X1).] 15.240(1);MSA Swickard Med Examiner 1991] Separate Opinion Levin, J.
D pre-FOiA determinative, While not law would be guidance divining legislative of some intent regarding scope exemptions of the under the failed, however, foia. Research has produce clearly ques- authoritative evidence on the autopsy reports tion whether and test results were public records in this state before the foia was enacted.48
Before the creation of the office of medical exam- pre-FOiA,autopsies iner, conducted, and thus were part inquest. justice all, if at of an peace conducting inquest could, coroner but required physician to, was not summon a to con- autopsy.49 inquiry, grand jury duct an inquiry, like a inquisitorial,
was not adversarial. Pro- ceedings could be held secret.
If inquest murder, jury found that "any manslaughter or assault had upon been committed deceased,” justice of the peace or coroner would return to the circuit court or Recorder’s "inquisition, Court to be called a coroner’s . inquest . . .”50 The jury’s determination murder, manslaughter, or an assault had been committed, grand like a jury presentment, could kept secret until the culprit apprehended state, and arraigned. however, The statutes do not *40 whether any public report was to be made when jury did not find that crime had been com- mitted. parties provided The have not any evi- regarding dence the practice before the office of medical examiner was created. only evidence 48 333.2882; Death certificates are made records MCL 14.15(2882). Legislature provided respecting MSA has not so autopsy reports. RS, 167, subsequent compilations.
49 1846 Ch 4. See n 33 for 50 RS, 167, 8, subsequent compilations. 1846 Ch 9. See n 33 for §§ Mich Separate Opinion by Levin, J. practice regarding presented examiner medical regard of a former an affidavit stating County it his Examiner Medical reports practice re- to and test disclose sults. Publishing Co, Inc, 420 Mich
In In re Midland
(1984),
held
148, 173;
Court
determine writings suggest be found to ity scholarly or can Rather, gleaned from that which can be otherwise. leading to a history proceedings indicates open public. person’s were not indictment See, [Co, DePasquale, Inc v generally, Gannett (1979)] 395; 2898; L Ed 2d 608 US 99 S Ct J., (Blackmun, C.J., (Burger, concurring), p 437 ,24 dissenting) . . . proceedings might "The such have been held fact that country private England at or in this does not common law suppression hearings my pretrial detract from conclusion that juries— be, grand more than the fact .that should does inquests preliminary proceedings such coroner’s at com (Black- Gannett, supra, p 437 mon law —were and are secret.” J., mun, dissenting). [Emphasis added.] signed the law
A few the Governor weeks before creating 1953, he examiner in the office medical *41 1991] Swickard v Med Examiner Separate Opinion Levin, signed recognized family a law that person may autopsy,51 deceased refuse to have an power prevent and thus has the disclosure of autopsy and test results unless the circumstances of the death were such that the medical examiner empowered by autopsy. law to conduct an Legislature thereby recognized in effect right family prevent autopsy in the disclosure of toxicology ordinary and test results in circum- stances. legislation could, indeed,
The 1953 be read as eliminating power family prevent autopsy toxicology disclosure of test results ordinary where the circumstances are not and the performs autopsy. medical examiner would, I legislation creating however, read the 1953 recognizing office of medical examiner and family creating interests of the as a nar- exception purposes row for enforcement, of law shielding pre-POiAautopsy and as from view except and test results it where is found that "any manslaughter death murder, was a result of only or assault.” I so conclude because the reason authorizing a medical examiner to conduct an autopsy is to determine whether the death was a means, result of because, unlawful until autopsies office of created, medical examiner was only part conducted, all, were if at of a secret inquisitorial proceeding. may,
Be that as it under foia, reports results, test like all other compiled by public body, are, records sure, to subject agency to disclosure unless the with- reports hold such and results under one of the exemptions. 328.151; 1953 PA MCL MSA 14.524. See n 37 for current
provisions. Mich Separate Opinion Levin, J.
E majority the contention does not address the intervenor medical examiner and *42 autopsy reports are also test results exemption subject records: to for medical the foia (l) public body may exempt A from disclosure public under this act: record (m) Medical, counseling, psychological facts concerning if the an individual or evaluations a disclo- identity would be revealed individual’s 15.243(l)(m); or evaluation. sure of those facts [MCL 4.1801(13)(l)(m).] MSA Appeals medical The Court of said preserve for to this issue had failed examiner argument appeal, on and declined consider merits.52 Supreme Massachusetts, Judicial Court Newspaper Examiner, v Medical Co Chief Globe (1989), 132, 135; 533 found 404 Mass that NE2d concerning autopsy reports suicide victims " ”53 exempt information’ 'medical files or were under Massachusetts foia. from disclosure "strong public policy in Massachu- noted the court (1990). 662, 668; App 52 184Mich NW2d court, opinion exemption, as in the The text of set forth is as follows: information; any other materials or files or also "[M]edical individual, specifically relating disclosure named data of personal which an unwarranted invasion of constitute [Globe, p privacy.” supra, 134.] 52, Michigan immediately preceding text of foia text n for See 13(l)(a) general exemption, n the text of the of a medical Michigan exemption "personal nature” for information public clearly "a unwarranted would constitute where privacy.” of an individual’s invasion Swickard Med Examiner 1991] Separate Opinion by Levin, J. confidentiality setts that favors as to medical data person’s body,” citing governing about a pital laws hos- testing, reports records, aids or records Reye’s syndrome, disease, of venereal and infec- tious diseases: Autopsies performed by physicians diagnos- are detailed,
tic in yield nature and intimate informa- tion about tion. subject’s body and medical condi- Therefore, they [Globe, are medical records. supra, p 134.] recognized diagnostic Globe that medical records protected generally public scrutiny by are from provisions designed protect per- various sonal topsy of law privacy.54 require production To of au- except results, or test in the context of a proceeding, contrary criminal would be to the spirit generally of the statutes which shield such information from view.
VI Having determined that the individual members Judge family privacy Quinn’s have a interest protected by privacy exemptions, the foia I next public consider whether the in interest disclosure outweighs privacy the interest. I first consider Judge private whether, if Quinn were a citizen and 600.2157; (physician-patient See privilege); MCL MSA 27A.2157 14.800(750) 330.1750; (psychiatrist/psychologist-patient MCL MSA privilege); 333.20175; 14.15(20175) (health facility MCL MSA or agency hospitals]-patient privilege); 333.6111; [includes MCL MSA 14.15(6lil) (patient records of licensed substance abuse treatment and service, prevention service, approved rehabilitation program, licensed service emergency service); 333.6521; or medical MCL MSA 14.15(6521) (patient approved program records of service or emer gency recipient service); 14.800(748) (records 330.1748; medical MCL MSA facility entity of mental health services from licensed operated by public agency); state or or under contract with MCL 333.2631, 14.15(2032) 333.2632; 14.15(2631), (medical MSA research projects). Mich Levin, Separate Opinion public privacy formerly official, interest a the outweigh public family I interest.
of his would the family privacy that the interest of the conclude private outweighs interest in disclo- citizen the a sure. Judge noteworthy connection, it is this longer public the was no official when
Quinn autopsy autopsy conducted, re- was or when toxicology port prepared test results private arguably, applying received; were citizen/public recognized dichotomy, in official regarded cases, should, death, he to after his private public I official. closer citizen than a secondly nevertheless consider a different whether public in- assessment of balance between privacy and the interest is terest required Judge formerly an Quinn was because public elected official.
A report in in interest toxicology results, test and the interest respecting convictions, records of arrests and private person appear in that to be much same autopsy report results, test like an a record of arrests and convictions, is not a record " ” up to,’ with 'what Government family of a result that interest apex private citizen "is in fact at its while its FOiA-based nadir.”55 interest in disclosure is at Judge private citizen, Quinn Had been a reports exempt clearly from at issue would be Supreme under States disclosure Court’s the United *44 analysis of the law-enforcement-records exemption, Reporters supra. Committee, third- A Committee, Reporters supra, p 780. n 17. See 1991] Swickard v Med Examiner Separate by Opinion Levin, party request request information, for this like the Reporters for records of arrests and in convictions reasonably expected Committee, could to invade subject or, of the records in this family. case, of his Further, immediate in the absence of a tenable claim that records would somehow assist the release of the in learn- ing up to,” "what their Government was the inva- clearly sion of would be "unwarranted.” identity requesting party of a is not rele- privacy-exemption analysis. vant "Either all requestors special access, have or none do. The one, needs of another, or the lesser needs of do not Dep’t matter.” United States of the Air Force v Authority, Federal Labor 229, Relations 838 F2d (CA 1988). balancing in interests disclosure and nondisclosure must conducted at a more therefore "be
general level. Do the several many people put uses to which would the informa- justify dispositive inquiry tion its release? And the legitimate uses, is whether there are not whether tacky.” (Emphasis we think them noble or Id. added.) Legitimate comport uses are those that underlying policy with the of the foia. Appeals
The United States Court of for the concluded, Seventh Circuit in case, the cited represented employees the home addresses of represented employ- a union that some civilian exempt ees at an Air Force base were not from disclosure, a conclusion similar to that reached this Court it when ordered the disclosure of names university and addresses of students at a state guards security Kestenbaum, UPGWA, and civil employees Employees service in State Ass’n. case, instant Kestenbaum, contrast with Employees UPGWA, Ass’n, and State information might stigmatize memory particular person, particu- and affect the interest of a *45 438 536 Mich by Separate Opinion Levin, J. being sought, family, re- information
lar specting persons hundreds thousands person. stigma respecting particular carries no report may autopsy in well The "uses” of concerning "publications . . . . . . suicides clude genuine, many matters of even other similar appeal” deplorable, popular without if more or less running tort of tort This is so because afoul law.56 generally next doctrine, denies relief which publication, kin such reflects concern after might jury play sympathies of a on the relatives story publisher payment of a news exact from even when the deceased is about the deceased legitimate public subject of concern. protecting policy news media from com- damage brought by members of actions
mon-law support family however, not, re- does decedent’s personal quiring of intimate informa- release "merely it [because is found tion about a decedent happens to be in] records Government storing supra, p Reporters Committee, .” 780. . . . balancing required by unlike the foia, public balancing "legitimate concern” tort-based weighing majority, requires conducted " [against] right private public’s 'the to know personal right secure in his affairs citizen’s to be bearing general no on the have or effect which ”57 reports, public.’ like individ Individual convictions, "tell us ual records arrests and nothing law enforce about matters of substantive properly subject public policy ment that are concern.”58 390-391, Torts, 2d, 652D, pp g, cited comment Restatement
ante, pp 550-551. Committee, Reporters supra, p n 18. 58Id. 1991] Swickard v Med Examiner Separate Opinion by Levin,
B During Judge his Quinn life held elective office expectation and therefore have had a lesser personal privacy private than would a citizen. governmental post may His also have affected his family’s privacy right during his life. Appeals
The United States Court of rejected, however, District of Columbia Circuit argument privacy rights public that "the em- ployees right are limited *46 government.” monitor its The court said that it government was well established "that officials do rights personal privacy not surrender all to when they accept public appointment.” The court person’s position may added that while a official determining enter the balance in enforcement whether the law exception properly in- records voked, determine, accord, "it does not of its own outweighed.” that the interest is Bast v Dep’t App Justice, 214 DC United States US (1981). 433, 436, 437; 665 F2d charged Bast had that a United States District Judge secretary improperly and a had induced reporter court and the partment to delete a discussion between Bast
judge transcript. De- from a Justice investigated complaint,
and the fbi the brought charges. but no Bast then filed an request. Appeals exam- The United States Court documents, ined in camera each of the and con- outweighs the cluded that "the incremental benefit interest far excep- public,” to the the with interpreted to tion of one document that "could be judge the in favor of the indicate was biased p government Id., 437. the and the While fbi.” might judge remarks attributed to the have been "designed agents judge the to reassure the questions previous their had not been offended Mich Separate Opinion Levin, J. procedures,” court ordered disclosure or the passage, stating: three-sentence Judge Pratt could possibility that the [E]ven significant to a bias raises a have intended reveal impartiality public issue of concern. Judicial If integrity of the nation’s courts. essential agent incorrectly attributed comment if comment was intended judge, the assuage feelings or than to influence inves- rather explained. It cannot be tigation, that must be importance judicial impar- assumed. this tiality outweighs interest case. [Id., pp 437-438.] private investigator with a considera-
Bast was a litigants might poia practice. have He or other ble aligned against De- the Justice found themselves pbi partment in another case before might judicial partiality judge. same Evidence acting judge justify disqualifying from in an- Judge acting in not be Quinn other case. will sup- Further, there is no reason to another case. pose report information contained in might toxicology test results cast light of his office. on the conduct *47 similarly Appeal of
United States Courts have where that the balance favors disclosure held public evidences official misconduct record office:59 59 (CA States, 9, 1985); v 757 F2d 1010 Sullivan Castaneda v United (D Administration, 258, DC, 1985); Supp F 259-260 617 Veterans Packing Dep’t Agriculture, 563 F2d Co v United States
Columbia 495 (CA 1, 1977). Investigation, App US DC 237 also Stern v Federal Bureau of See 302, 312; (1984), Appeals Court 737 F2d 84 where United States fbi could withhold the District of Columbia Circuit held for pbi agents under the law two of three censured the identities of identity required exemption, third but enforcement higher disclosed, employee level and said: 1991] Swickard 595 Med v Examiner Separate Opinion by Levin, J. purpose basic of the foia "to ensure an [T]he functioning citizenry, informed vital to the against society, democratic needed to check cor- ruption governors and to hold the accountable to governed.” National Labor Relations Board Co, 214, 242; Robbins Tire & Rubber 437 US 98 S (1978) 2311, 2327; L Ct Ed 2d 159 [citation Therefore, courts favor disclosure under omitted]. balancing government the when a offi- test cial’s actions constitute a violation of trust. (CA States, 11, v United 770 F2d [Cochran 1985).] present claim, case,
There is no in the of miscon- is, rather, duct in office. There hint of a miscon- by person duct out of office who was office. drug paraphernalia Judge were found at home, mother’s Quinn’s his chambers. Appeal United States Courts of have held that persons investigated interests of possible wrongdoing Watergate Special by the prosecuted, Force, Prosecution but not indicted or "legitimate substantial,” are and "cannot be general public curiosity” overridden so as to warrant disclosure. Fund for Constitutional Gov Service, 211 ernment v Nat'l Archives & Records (1981). App 267, 277; DC US F2d analysis applied same to information persons targets revealed facts about who were not knowing participation There is a difference decided between high-level deception negligent officer in such and the performance employees. particular hy duties the two other lower-level United States district courts have held that the balance favors requires disclosure where a disclosure statute publicized, information be sought suppressed and the record to be is evidence of Congressional noncompliance such a statute. News with Justice, Syndicate Dep’t supra; n 1 v United States Dow Jones & (D 1989). Co, Justice, DC, Dep’t Supp Inc v United States 724 F *48 Mich by Separate Opinion Levin, J. investigation.60
of criminal appeals rejected argument court of exception inappli records the law-enforcement it "the to whom relates because individuals cable are corporate high government officials level in is at best minimal”:61 whose interest "public as a an individual’s status [While] might individ- figure” . . . diminish an somewhat degree intrusion privacy, ual’s interest occasioned dependent by necessarily is disclosure question. upon the the information character of indicated, already we revelation As fact have investigated has that an individual been significant cognizable activity represents a suspected criminal intrusion on that individual’s exemption]. law enforcement under [the potentially aug- degree is indeed of intrusion ais well by mented known the fact that the individual investigation one which figure and the those con- much national attention as attracts as ducted Force]. [Watergate Special Prosecution by the would The disclosure of that information placing produce the unwarranted result having to position in the named individuals forum outside of their conduct in defend procedural protections normally afforded the [Id., 276. proceedings. p Em- accused in criminal phasis added.]
Judge family in the instant case Quinn’s Although similarly no incommoded disclosure. proceeding contemplated by criminal was ever autopsy report examiner, medical Judge might subject fam- Quinn’s and test results exempt categories refining properly of information from exemption investigative federal under the records disclosure foia, grounds approved "on the the district court had deletions made they condition of individuals” that identified revealed medical emotional investigative reports. Fund for Constitutional Gov Service, supra, p n Archives & Records 14. ernment Nat’l 61 Id.,p 273. 1991] Swickard v Med Examiner Separate Opinion Levin, appropriate reputational ily There is no loss. *49 Judge disclosure; the effects of forum to address family himself, his defend cannot Quinn having placed position of should not be do so.62 rejected the contention in Bast also
The court protecting privacy already hope is of that "the forlorn” because transcript alteration inci- "the public already atten- has received substantial dent tion”: however, case, previous publicity con- In this speculation. journalistic more than
sisted of little While such privacy, trast, personal invade publicity may well con- By established. accuracy its is not in the twelve the information revealed of an imprimatur agency carries documents of nature investigation. The authoritative official such an individual’s or editorial the damage to greater findings threatens much newspaper articles reputation than reason, publicity columns. For this the foia popular media cannot vitiate Furthermore, information. exemption for official brings it a renewed inva- publicity with renewed Chairman, of Infor- Justice Comm v Freedom Criminal See also (1991),barring Comm, 193, 196; disclo- A2d 96 217 Conn mation general attorney performance under a of a state’s evaluation sure " withholding 'personnel permitted medical files exemption and similar files of attorney, rights however, invasion would constitute an the disclosure of which ” personal privacy.’ insisted that the "state’s The FOI Commission 'minimal or nonexistent’ official has court, The to his official conduct.” in information related potential and the for embarrassment took account of expectation privacy in determin- of the individual’s reasonableness ing privacy: invasion of would constitute an of the information that release implicates concerns first amendment fact that the foia necessarily imply that . . . does not to information of access privacy rights personal on the
first amendment constraints statutory privacy application public figures emptions ex- control at 198-199.] under the foia. [id. 156; Co, Georgia Napper 257 Ga 356 SE2d Television also v See (1987). Mich Sepakate Opinion Levin, J. subject, privacy. The is sion of in renewed intrusion right, protection. [Bast to foia United its own Dep’t p Justice, 437.] States c question re- to whether narrows provide quires informa- examiner medical might that a in his to show tion files tend prohibited judge using substance, albeit was private, in violation law be- but nevertheless against prohibited it the law to use a cause private. even in substance report If and test results were judge using prohibited sub- show that this report, publicized stances, unlikely it is media and the be a clamor to root out that there would *50 judges by offi- and other elected substance abuse cials. Absent other public
evidence, would rightfully probably this aber- so—that assume — judicial Possibly typical I not behavior. rant and am that being naive, I no but have reason to believe atypical judicial
any is other than such use belief, If I in that then the am correct behavior. curiosity public simply or to know is asserted need voyeurism, curiosity in similar to the interest Reporters Committee found insufficient outweigh interest. assessing validity conclusion, I Judge Quinn mind if had entered a
have in hospital public abuse, for treatment substance party, media, as not a compel such the news could third of the record because of the exemption for medical records.63 autopsy report and
To hold that disclosure of required test results is would be invoked, exemp immediately preceding text n 52. When this See permit balancing. appears n to be See also tion absolute 54. Wayne Med Swickard v Examiner 1991] Levin, Separate Opinion exception create a narrow adventitious —from person’s general rule that medical records of a public sui- substance abuse are not records64—for relatively This is a small cidal elected officials. requiring group. A rule of law the disclosure of autopsy test results for suicidal elected officials occasionally prohibited only will reveal evidence of distinguished home, from substance abuse at alcoholic substance abuse at home. lawful Clearly, in there should be at least an camera judge results examination a circuit the test they prohibited sub- to determine whether show judge redact evi- stance abuse.65 The should abuse. He dence of lawful alcoholic substance embarrassing any other infor- should also redact disease, mation, venereal such as evidence of aids, embarrassing regard- potentially details and other ing personal history, judge’s lifestyle or might particularly genetic history, which last personal embarrassing who to his relatives genetic history. share that
Requiring disclosure of the test results infre- elected officials will result most for suicidal providing public quently useful infor- with former elected officials with a mation about their change legislation. ”[T]he to a view 13(l)(m), patient-physician privilege. exemption, Foia n 54. See 10(1) provides: Section of the foia motion, court, view the record on its own *51 private reaching
controversy before a decision. [MCL 15.240(1); 4.1801(10)(1).] MSA Justice, supra, p Dep’t of where See Bast v United States Appeals each of the of examined in camera United States Court concluding that disclosure was documents involved before twelve required passage only in one of the documents. a three-sentence case, requested court, evidentiary an the medical examiner the instant by hearing and the Court of which was refused the circuit App Appeals 184 Mich 668. affirmed that decision. Mich Levin, Separate Opinion to benefit incremental outweighs interest far private by violation revealing law public” supra, Bast, 437. p official. former elected a pilot, airline were an If involved person a City, York in New subway train operator of driver, or a bus engineer, railroad substance revealing lawful alcoholic results test abuse, might be abuse, substance prohibited or such evidence because purpose the within persons test randomly need to indicate might I doubt public conveyances. such operate who using prohibi- Judge Quinn was revealing that random justify thought would be substance tive abuse. substance prohibited testing judges health public were a involved person If the might disease worker, of aids or venereal evidence need disclosable because arguably be a highly suffered from person such a to know that dangerous disease. contagious and Judge change because does the balance Nor pertinent Judge. only the Chief Quinn was judges and other Judge Quinn between difference to the office of him that elevated process is the informing judges I doubt whether Judge. Chief prohib- used a Judge Quinn courts that multijudge future effect on any would have ited substance suggests information judges. of chief elections substance abuse prohibited nothing potential about chief seek to become might who judges of other information would I think that do Nor judges. the selec- Court to revise of this justices cause the require likely are that we tion process, more testing judges, of chief drug random testing require random prepared are than we generally. judges of an public disclosure
I conclude that concerning possi- test results report judge a former substance abuse prohibited ble *52 1991] Swickard v Med Examiner J. Opinion Dissenting Mallett, public private about inform would not up to,” and would their Government "what nothing” about, not and would "little or reveal light "any a Government the conduct of on shed agency that the hold I would therefore or official.” family Judge in nondis- Quinn’s interest outweighs disclosure, interest closure of the Court the decision reverse and would Appeals. (dissenting). Justice I concur with Mallett, my opinion. separate indicate I wish to Levin’s part's agreement I i, n, hi, do and vi. with parts presented analysis agree iv with opinion’s agree con- with v, nevertheless but clusion.