Edais v. Super. Ct.

Filed 1/25/23 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MUSTAFA EDAIS et al.,
Petitioners,
A164947
v.
THE SUPERIOR COURT OF SAN (San Mateo County
MATEO COUNTY, Super. Ct. No. 21CIV04737)
Respondent;
ROBERT FOUCRAULT, as Coroner,
etc., et al.,
Real Parties in Interest.
MUSTAFA EDAIS et al.,
A165208
Plaintiffs and Appellants,
v. ORDER MODIFYING
OPINION; CHANGE IN
ROBERT FOUCRAULT, as Coroner,
JUDGMENT
etc., et al.,
Defendants and Respondents.
THE COURT1*:
It is ordered that the opinion filed herein on January 17, 2023, be
modified as follows. The entire Disposition will be replaced to read:
Let a peremptory writ of mandate issue directing respondent
court to vacate its April 4, 2022 order to the extent it (1) finds that
petitioners limited their CPRA request to certain photographs and the
* Tucher, P.J., Fujisaki, J., and Petrou, J. participated in the decision.
1
Investigation Report; (2) finds that the records sought are not public
records and/or are exempt from disclosure under the CPRA; and (3)
denies the Petition in its entirety. The portion of the April 4, 2022
order that declines to award attorney’s fees and costs to petitioners is
reversed. The matter is remanded to the trial court for further
proceedings and issuance of a new order consistent with this
opinion. Petitioners are awarded costs in the writ proceeding and the
appeal. (Cal. Rules of Court, rules 8.278(a), 8.493(a).)
This modification changes the judgment.
Dated:___________________ ________________________ P.J.
Edais et al. v. Superior Court/Edais et al. v. Foucrault et al. (A164947/A165208)
2
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Robert D. Foiles
Counsel: Mackenzie & Albritton, Mark L. Mosley for Plaintiff and
Appellant
John D. Nibbelin, County Counsel, Brian E. Kulich, Chief
Deputy for Defendant and Respondent
Edais et al. v. Superior Court/Edais et al. v. Foucrault et al. (A164947/A165208)
3
Filed 1/17/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MUSTAFA EDAIS et al.,
Petitioners,
A164947
v.
THE SUPERIOR COURT OF SAN
MATEO COUNTY,
Respondent;
ROBERT FOUCRAULT, as Coroner,
etc., et al.,
Real Parties in Interest.
MUSTAFA EDAIS et al.,
Plaintiffs and Appellants, A165208
v.
(San Mateo County
ROBERT FOUCRAULT, as Coroner,
Super. Ct. No. 21CIV04737)
etc., et al.,
Defendants and Respondents.
Thirty-two-year-old Munir Edais died of suicide by hanging at 2:41 a.m.
on January 21, 2020, according to an autopsy report prepared by the San
Mateo County Coroner’s Office (Coroner’s Office). The decedent’s parents,
petitioners Mustafa and Majeda Edais (together, petitioners), distrust this
conclusion. To investigate the possibility of foul play, they hired Judy
Melinek, M.D., a certified forensic pathologist, to undertake a forensic
autopsy review. The primary question before the court today is the extent to
which Coroner’s Office records that Dr. Melinek needs to conduct this review
1
must be released to her under the California Public Records Act (CPRA or
Act). (See Gov. Code, §§ 7920.000 et seq.; all unspecified statutory references
are to this code.)2 We conclude the records in question are public records and
may not, for the most part, be withheld.
BACKGROUND
Evidence submitted to the superior court establishes the following
facts. Munir Edais was a Los Gatos police officer, on his way to work the
night shift at 6 p.m. on January 19, 2020. The day before, he had confronted
Eman Edais, his wife of six months, with his suspicion that she was being
unfaithful, and he told her he intended to seek a divorce. As he drove to work
on January 19, Munir3 discussed this intention on a call with his sister, with
whom he was close, but then he uncharacteristically failed to respond to the
multiple voice and text messages she left over the next 36 hours.
In the early morning hours of January 21, 2020, Eman called 911 to
report Munir had hanged himself in their apartment. When Eman placed
her 911 call, a third person may have been present in the apartment.
According to a forensic audio analyst hired by petitioners, the sound of a
whispered voice can be detected in the background on an enhanced audiotape
of the 911 call. The Daly City Police Department responded to the call, and
soon summoned personnel from the Coroner’s Office to the Edais’s home. The
2 Former Government Code sections 6250 et seq., enacted in 1981, was
repealed effective January 1, 2023 and replaced by a new Government Code
sections 7920.000 et seq. addressing the same subject matters. (Stats. 2021,
ch. 614.) (See The People’s Business A Guide to the California Public Records
Act (2022) Appendix 2, pp. 83–88 (as of Jan. 13,
2023).)
3 We use first names only to avoid confusion and intend no disrespect.
2
Coroner’s Office examined and photographed the scene, interviewed Eman,
and took custody of Munir’s body. Neither the police department nor the
Coroner’s Office, in the reports they prepared, identify a third person as
having been present.
On March 22, 2020, after conducting an autopsy, the Coroner’s Office
published a report classifying Munir’s death a suicide.
A forensic autopsy review is common where bereaved family members
have unanswered questions about an official autopsy report. According to Dr.
Melinek, who has conducted many such studies, a forensic autopsy review
requires examination of scene photographs, autopsy photographs, various
reports (e.g., the autopsy report and death scene investigation report), all
notes and recordings taken by the coroner’s investigator who examined the
scene and by the forensic pathologist who examined the body, and recuts of
microscopic slides of any tissues retained. Petitioners sought the required
records informally and then, on April 22, 2021, served a formal CPRA request
on Robert Foucrault, in his capacity as San Mateo County Coroner.
Petitioners’ CPRA request sought “all DOCUMENTS received or
generated by, or currently in the possession of, the [Coroner’s] Office in
connection with the death of Munir Edais.” The request defined
“DOCUMENTS” broadly, to include photographs, video recordings, “and all
other electronically stored information.” For physical evidence that could not
be reproduced, petitioners requested an appointment for Dr. Melinek or her
designee to inspect the evidence. And petitioners offered, in making their
CPRA request, to have all the requested materials sent directly to Dr.
Melinek, who agreed to return or destroy them at the conclusion of her
assignment.
3
In response to this CPRA request, the Coroner’s Office produced, for
the second time, copies of several reports it had previously provided—the
summary Report of Investigation (Coroner’s Report), a Pathology Report, and
a Forensic Laboratory Report (Toxicology Report). But it declined to provide
photographs of the scene or the autopsy and declined to provide the full
Summary and Investigation Notes Report (Investigation Report) prepared by
the coroner’s investigator, explaining that the decedent’s widow had not
consented to such disclosure.
Petitioners then sought a writ of mandate to compel production, as well
as declaratory and injunctive relief. (See Gov. Code § 7923.000; Code Civ.
Proc., §§ 525, 1060, 1085 et seq.) On September 3, 2021, they filed in the
superior court a verified petition and complaint (Petition) against the
Coroner and the County (together, respondents).4 The Petition sought all of
the documents requested in the CPRA request, plus attorney’s fees.
Respondents answered, and delivered for the trial court’s in camera review
copies of the autopsy photographs and the Investigation Report. The matter
came on for hearing on March 25, 2022.
The Superior Court denied the requested writ “in its entirety” and
ordered judgment to enter against petitioners. In an April 4, 2022 order, the
court first found that the only documents petitioners sought were the
Coroner’s death-scene and autopsy photographs and an unredacted copy of
the Investigation Report. The court determined respondents were “justified
in refusing to make [these documents] public under the Public Records Act
because they are not Public Records and/or . . . would be exempt from the
4 Although the Coroner and the County are real-parties-in-interest in
the writ proceeding before us, they are respondents in the appeal and were
respondents in the trial court proceeding.
4
Public Records Act under Government Code Sections 6254(c), 6254(k), and
6276.34 [current sections 7927.700, 7927.705, and 7930.180, respectively].”
And, the order continued, respondents “established that, under Government
Code Section 6255 [current section 7922.000], the public interest served by
not disclosing the record[s] clearly outweighs the public interest served by
disclosure of the record[s].” As it made no order to release documents under
the CPRA, the court declined to award petitioners attorney’s fees or costs.
At the same time and in the same order in which it denied relief under
the CPRA, the superior court on its “own motion” required respondents to
produce to petitioners the requested photographs and Investigation Report.
The court cited Code of Civil Procedure section 129, subdivision (a), which
authorizes a court—on good cause and after notice to the district attorney—to
order the release of a coroner’s photos of the deceased. The April 4, 2022
order finds that respondents had agreed to provide petitioners the
Investigation Report and the photographs under this code section even before
the petition was filed, and that petitioners had subsequently notified the
District Attorney’s office they were seeking these documents. In ordering the
photographs and Investigation Report turned over to petitioners, the court
also ordered the parties to negotiate a protective order to prevent their
further release.
On April 14, 2022, petitioners filed in this court a petition for
extraordinary writ. (See Gov. Code, § 7923.500.) Petitioners ask us to direct
the superior court to vacate its April 4 order and replace it with a new order
that would direct the Coroner’s Office immediately to release “all of the
public records that it generated or received in connection with its
investigation into” Munir’s death. Petitioners contend that the trial court
failed to comprehend the entire scope of documents they were seeking, that
5
respondents failed to establish any applicable exemption to disclosure under
the CPRA, and that the order to release documents misapplied Civil
Procedure section 129, incorrectly depriving petitioners of their right to
attorney’s fees under the CPRA. (See Filarsky v. Superior Court (2002) 28
Cal.4th 419, 427 (Filarsky) [“award of costs and attorney fees pursuant to
[section 7923.115] is mandatory if the plaintiff prevails”].) On May 27, 2022,
we issued an order to show cause why the relief petitioners seek should not
be granted.
Separately, petitioners have appealed the same April 4, 2022 order. In
their appeal, petitioners contend they had a right to attorney’s fees since the
superior court ordered partial disclosure of the documents their CPRA
request had sought, and that the superior court erred in ignoring their
request to compel discovery from the Coroner’s Office on the scope of the
relevant documents it retained. Because the appeal challenges the same
order as the writ and is now also ripe for decision, we consolidate the writ
and appeal for purposes of this opinion.5
DISCUSSION
“Openness in government is essential to the functioning of a
democracy.” (International Federation of Professional & Technical Engineers,
Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 328
(International Federation).) To that end, the California Constitution
declares, “The people have the right of access to information concerning the
conduct of the people’s business, and, therefore, . . . the writings of public
officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I,
§ 3, subd. (b)(1).) A public agency seeking to withhold a record from
5 This consolidation is on the court’s own motion, as we previously
denied petitioners’ request to consolidate before the appeal was fully briefed.
6
disclosure bears the burden of demonstrating that an exception to the CPRA’s
disclosure directive applies. (International Federation, at p. 329.) And in
determining whether the CPRA applies, or whether an exemption has been
established, the California Constitution instructs that a statutory provision
“shall be broadly construed if it furthers the people’s right of access, and
narrowly construed if it limits the right of access.” (Cal. Const., art. I, § 3,
subd. (b)(2); City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 617.)
Even as the Constitution and the CPRA mandate broad disclosure, the
Legislature has also “been ‘mindful of the right of individuals to privacy.’
(§ [7921.000].) Set forth in the Act are numerous exceptions to the
requirement of public disclosure, many of which are designed to protect
individual privacy. (See[, e.g., §§ 7925.005, 7927.700, 7927.705].) In
addition, a catchall exception applies if ‘on the facts of the particular case the
public interest served by not disclosing the record clearly outweighs the
public interest served by disclosure of the record.’ (§ [7922.000].) Unless one
of the exceptions stated in the Act applies, the public is entitled to access to
‘any writing containing information relating to the conduct of the public’s
business prepared, owned, used, or retained by any state or local agency.’
(§ [7920.530]; § [7922.525].)” (International Federation, supra, at p. 329,
footnote omitted.)
Where, as here, the trial court has refused to order records disclosed
under the CPRA, the court’s order is reviewable by petition for issuance of an
extraordinary writ. (§ 7923.500; Dixon v. Superior Court (2009) 170
Cal.App.4th 1271, 1275 (Dixon).) “ ‘Factual findings made by the trial court
will be upheld if based on substantial evidence. But the interpretation of the
[CPRA], and its application to undisputed facts, present questions of law that
are subject to [independent] appellate review.’ ” (Ibid.) “And when it comes
7
to balancing various interests under the CPRA, while we accept the trial
court’s express and implied factual determinations if supported by the record,
‘we undertake the weighing process anew.’ ” (Los Angeles Unified School
Dist. v. Superior Court (2014) 228 Cal.App.4th 222, 237 (L.A. Unified).)
I.
Petitioners first assign error to the trial court’s conclusion that their
CPRA request was narrowed in discussions among the parties, until it
encompassed only the death-scene and autopsy photographs and the
Investigation Report. Petitioners contend, persuasively, that the language of
their CPRA request was much broader, seeking “all” documents relating to
Munir’s death that were received by, generated by, or in the possession of the
Coroner’s Office. Without disputing that point, respondents attempt to
support the trial court’s conclusion by pointing to language in Mustafa
Edais’s Claim Against the County of San Mateo (Claim), which he served
before filing the Petition. The Claim states, “To complete her assignment,
Dr. Melinek must examine the records of the Coroner’s Office’s investigation,”
in particular “the unredacted notes and reports prepared by the Coroner’s
Office’s staff” and “all post-mortem photographs taken of both the Decedent
and the scene of his death.”
Respondents focus on the portion of the Claim’s language mentioning
particular documents, while ignoring the broader statement that Dr. Melinek
requires “the records of the Coroner’s Office’s investigation” into Munir’s
death. We see no basis for concluding that by calling out specific documents
of particular relevance, petitioners have abandoned the broader aspects of
their Claim or their CPRA request. Respondents’ argument also assumes,
without evidence to support the assumption, that the Investigation Report
and the reports previously produced to petitioners are the sum total of the
8
“notes and reports” the Coroner’s Office has regarding Munir’s death.
Finally, respondents ignore that the Claim attaches a copy of the full CPRA
request, asserts without qualification that “the Coroner’s objections to [the]
request are meritless,” and nowhere purports to narrow the scope of the
attached request. Under these circumstances, we conclude the Claim cannot
reasonably be interpreted as having narrowed the CPRA request. We find,
accordingly, no substantial evidence to support the trial court’s conclusion
that petitioners narrowed their claim to the specified documents that
respondents had given the trial court to review.
II.
Petitioners next assign error to the trial court’s order to release the
photographs and Investigation Report under Code of Civil Procedure
section 129, subdivision (a) (section 129(a)). Petitioners correctly point out
that section 129(a) applies on its face only to photographs and video
recordings “of the body, or any portion of the body, of a deceased person,
taken by or for the coroner at the scene of death or in the course of a post
mortem examination or autopsy.” Where it applies, section 129(a) prohibits
copying or disseminating these sensitive images, except in specified
circumstances including after a judicial finding of good cause. Respondents
offer no counter to the argument that, because it concerns only photographs
and videos of the decedent’s body, section 129(a) provides no legal basis for
compelling production of the Investigation Report. And indeed, we see no
basis under section 129(a) for the trial court’s order compelling production of
that document. We will, however, conclude below that the Investigation
Report must be disclosed under the CPRA, which not only provides a legal
underpinning for the action the trial court has already taken but also has
9
consequences for appellant’s right to recover attorney fees, as we see in
part IV.
Petitioners contend that even as to the photographs section 129(a) does
not support the court’s order. Subdivision (b) of Code of Civil Procedure
section 129 (section 129(b)) expressly states, “This section shall not apply to
the making or dissemination of [autopsy photographs] for use in the field of
forensic pathology.” Petitioners assert that because Dr. Melinek is a certified
forensic pathologist who intends to use the photographs for work in forensic
pathology, the language of section 129(b) means that section 129(a) does not
apply to any of the records petitioners seek. Respondents contest this point
but, as we explain below, we see no need to resolve this aspect of the parties’
dispute.
III.
In petitioners’ third assignment of error, they contend the trial court
misapplied the CPRA in concluding the records requested were not public
records and/or fell within one of the statutory exemptions.
A.
We begin with the question whether the records petitioners seek are
“public records” for purposes of the CPRA. Petitioners assert that they are,
citing Dixon, supra, 170 Cal.App.4th 1271. We agree. Dixon held “coroner
and autopsy reports that constitute investigations of a suspected homicide
death—in which the prospect of criminal law enforcement proceedings is
concrete and definite—are public records that are exempt from disclosure
under Government Code section [7923.600].” (Id. at pp. 1273–1274; italics
added.) Section 7923.600’s exemption to disclosure is for investigatory files
compiled for law enforcement purposes, and it is not at issue here; the
important point for our purpose is the antecedent conclusion that “coroner
10
and autopsy reports . . . are public records.” (Dixon, at pp. 1273–1274.)
Given the CPRA’s broad definition of “public records,” Dixon called this an
“unremarkable proposition” that “no one could dispute.” (Id. at p. 1278;
§ 7920.530.) “The CPRA defines ‘ “[p]ublic records” ’ as including ‘any writing
containing information relating to the conduct of the public’s business
prepared, owned, used, or retained by any state or local agency regardless of
physical form or characteristics,’ ” the Dixon court explained. (Dixon, at
p. 1278; § 7920.530.) As in our case, the serious question in Dixon was “not
whether coroner/autopsy investigatory reports are public records, but
whether, in certain circumstances, they are exempt from public disclosure
under a particular CPRA exemption provision.” (Dixon, at p. 1278.)
Respondents protest that the photographs are not public records
because Code of Civil Procedure section 129, not the CPRA, governs their
release. We think the issue of whether section 129(a) prevents respondents
from releasing the photographs goes to whether the photographs fall within
an exemption to the CPRA, a question to which we next turn. We see nothing
in section 129(a) that prevents the conclusion, at the outset, that all of the
documents in petitioners’ CPRA request are public records.
B.
Three sections of the CPRA work together to exclude from disclosure
certain postmortem and autopsy photographs. Section 7927.705 excludes
“records, the disclosure of which is exempted or prohibited pursuant to
federal or state law, including, but not limited to, provisions of the Evidence
Code relating to privilege.” (Italics added.) Section 7930.005 fleshes out the
meaning of “pursuant to . . . state law.” It provides, “[r]ecords or information
not required to be disclosed pursuant to [Section 7927.705] may include, but
shall not be limited to, records or information identified in statutes listed in
11
Chapter 2 (commencing with Section 7930.100).” A long list of statutes
ensues. The list includes, at section 7930.180: “Postmortem or autopsy
photos, Section 129, Code of Civil Procedure.”
These statutory provisions together exempt from disclosure under the
CPRA postmortem or autopsy photographs whose disclosure Code of Civil
Procedure section 129(a) prohibits. Section 129(a) bars the Coroner’s Office
from disclosing its photographs depicting “the body, or any portion of the
body, of a deceased person,” unless a judge finds good cause or another
exception to section 129(a) applies. To the extent section 129(a) conflicts with
CPRA-mandated disclosure, the provisions of section 129(a) control. We
know this because the first words of section 129(a) are “[n]otwithstanding
any other law, . . . ” and because a canon of statutory construction instructs
that, where statutes conflict, “ ‘ “more specific provisions take precedence
over more general ones.” ’ ” (Grassi v. Superior Court (2021) 73 Cal.App.5th
283, 305.) Section 129(a) is more specific, in that it applies only to a coroner’s
photographs and videos of a decedent’s body, whereas the CPRA governs
public documents generally.
The parties disagree as to whether the requested photographs fall
within the scope of Code of Civil Procedure section 129(a)’s prohibition on
disclosure, given section 129(b)’s language authorizing the “making or
dissemination” of copies of a coroner’s photographs “for use in the field of
forensic pathology.” (See Code Civ. Proc., § 129(b).) We need not resolve this
dispute. The trial court ordered the photographs produced to petitioners
under a protective order, respondents do not challenge that ruling and have
already turned over the photographs,6 and petitioners do not argue that the
6 Petitioners contend there must be additional photographs responsive
to their CPRA request beyond those reviewed by the trial court and released
12
protective order hampers their use of the photographs. Petitioners thus have
already obtained the relief they sought regarding these particular documents,
albeit on a different legal theory from the one they invoked. And, since we
separately decide with regard to the Investigation Report that petitioners’
CPRA request has merit, petitioners’ request for attorney’s fees seems not to
hinge on the precise legal theory supporting the trial court’s disclosure order.
At some future point, if some other person were to seek access to these
photographs, the difference in legal theories could become significant.
Records released to one requestor under the CPRA generally must be made
available to other members of the public. (See City of San Jose v. Superior
Court (1999) 74 Cal.App.4th 1008, 1018.) Records released pursuant to
section 129(a) are likely not subject to the same requirement. But what
matters here is that petitioners received the photographs and respondents
are not seeking their return, so there is nothing further to decide as to these
documents. (See McLeod v. Vista Unified School Dist. (2008) 158 Cal.App.4th
1156, 1170, fn. 11 [we “ ‘review the trial court’s order, not its reasoning,’ ” and
affirm if correct on any theory supported by record].)
C.
As to the Investigation Report, we consider the other specific exemption
on which the trial court relied. Section 7927.700 exempts from disclosure
“personnel, medical, or similar files, the disclosure of which would constitute
an unwarranted invasion of personal privacy.” In determining whether an
invasion of personal privacy is “unwarranted,” the court balances the public
interest in disclosure against the individual’s interest in privacy.
(International Federation, supra, 42 Cal.4th at pp. 329–330; L.A. Unified,
under the protective order. If there are, then the trial court on remand can
address in the first instance whether those, too, should be disclosed.
13
supra, 228 Cal.App.4th at pp. 240–241.) We undertake this balancing with
respect to the Investigation Report specifically, but in so doing illustrate how,
on remand, the trial court is to balance the competing public and private
interests in disclosure when deciding whether to order the disclosure of other
documents responsive to the CPRA request that have not yet been produced
to it for inspection.
The public interest in release of these Coroner’s Office documents is
significant. “[T]he fact that a member of the public is interested in a matter
does not, by itself, make it a matter of public interest.” (L.A. Unified, supra,
228 Cal.App.4th at p. 248.) A matter is of public interest where “disclosure
‘would contribute significantly to public understanding of government
activities’ and serve the legislative purpose of ‘ “ ‘shed[ding] light on an
agency’s performance of its statutory duties.’ ” ’ ” (Id. at p. 241.) Here,
release of the Investigation Report will assist interested members of the
public in assessing whether the Coroner’s Office investigated Munir’s death
thoroughly and competently, as the document contains work product on
which the Coroner’s Office based the Coroner’s Report it released to the
public.
L.A. Unified instructs that the weight of the public interest “ ‘ “is
proportionate to the gravity of the governmental tasks sought to be
illuminated and the directness with which the disclosure will serve to
illuminate.” ’ ” (L.A. Unified, supra, 228 Cal.App.4th at p. 242.) Here, the
gravity of the governmental task looms large, as the requested documents
will support (or fail to) the government’s determination that Munir was not a
homicide victim, but a suicide. The public interest in correctly distinguishing
suicide from homicide is patent. It justifies even compromising the
confidentiality of a patient’s medical records. For example, a separate
14
provision of the civil code requires a health care provider to disclose medical
information upon the request of a coroner investigating a death that “may
involve . . . suicide[]” or is otherwise suspicious. (Civ. Code, § 56.10,
subd. (b)(8).)7 The requested information is also of a nature that should
illuminate directly the quality of the Coroner’s Office’s work on this case.
Petitioners’ forensic pathologist has opined that the requested records are
essential for her forensic review.
As against this weighty public interest in disclosure, the individual
privacy interests are more elusive. Petitioners assert that Munir, because he
is dead, no longer has privacy interests to protect. Respondents counter that
the privacy of a decedent’s family must also weigh in the balance. In the
abstract, respondents may be right. “Family members have a personal stake
in honoring and mourning their dead and objecting to unwarranted public
exploitation that” intrudes upon their grief. (National Archives and Records
Admin. v. Favish (2004) 541 U.S. 157, 168 (Favish).) For this reason, the
common law has long recognized “a family’s control over the body and death
images of the deceased.” (Ibid.)
7 The Coroner’s Office contends that Munir’s medical information
produced to it under this provision is exempt from disclosure under section
7927.705, which incorporates by reference other protections from disclosure
in state law. Under Civil Code section 56.10, subdivision (b)(8), a “coroner
shall not disclose the information contained in the medical record obtained
pursuant to this paragraph to a third party without a court order . . . .” Here,
the court has already ordered the unredacted Investigation Report to be
produced to petitioners under a protective order, but the trial court should
carefully consider this provision if other requested documents include
additional information that the Coroner’s Office obtained from Munir’s health
care providers, or if other persons request that the Coroner’s Office disclose to
them records containing Munir’s medical information.
15
But respondents’ argument ignores important facts. First, members of
Munir’s own family (his parents, supported by his sister) are the ones seeking
these documents. It cannot be the role of the Coroner’s Office to protect these
family members from themselves. In assessing the weight of the family
members’ privacy interest, we consider it significant that three members of
Munir’s family believe their privacy interest pales in comparison to their
interest in having these documents disclosed. (Cf. Wessler v. United States
Dept. of Justice (S.D.N.Y. 2019) 381 F.Supp.3d 253, 259 (Wessler) [family
members of deceased detainees “ ‘expressed gratitude’ ” for public disclosure
of medical neglect in prisons].) To the extent the Coroner’s Office is seeking
to protect the privacy of Munir’s widow, it is on somewhat firmer ground.
Because Eman declined to provide the Coroner’s Office with written
authorization for the release of the requested documents we can infer that
she opposes petitioners’ request, but we have no affirmative statement from
her on the subject. As the surviving spouse, she has certain rights with
regards to Munir’s remains and estate. (See, e.g., Gov. Code, § 27520 [right
to request coroner to perform an autopsy]; Health & Saf. Code, § 7100 [right
to make funeral arrangements and dispose of remains]; Prob. Code, § 6401
[right of intestate succession].) But so, too, do a decedent’s parents have such
rights, either behind or alongside the rights of a surviving spouse. (See, e.g.,
Gov. Code, § 27520 [parent may request, if no surviving spouse]; Health &
Saf. Code, § 7100 [parent’s priority below surviving spouse]; Prob. Code,
§ 6401 [parents and their issue to split decedent’s separate property with
surviving spouse].) Here, where the surviving spouse has made no
affirmative request for privacy, where there is no evidence that disclosure
will lead to public spectacle, and where other close family members uniformly
favor disclosure and distrust the motives of the surviving spouse in failing to
16
agree, we assess the private interest in nondisclosure as somewhat
attenuated.
A second important fact in assessing the weight of the individual
privacy interest is that the documents we discuss here are not photographs
and videos of the deceased, but technical documents such as coroner’s notes
and observations recorded in words and numbers. State law recognizes the
extreme sensitivity of death-scene and autopsy photographs of the deceased,
often protecting these images from disclosure (Code Civ. Proc., § 129(a)), but
we know of no comparable statute protecting the other documents petitioners
seek.8 This is not to say that surviving family members retain no privacy
interest in a document such as the Investigation Report, but any such
interest is somewhat diminished, as compared to graphic and unsettling
images of the deceased. (Cf. Wessler, supra, 381 F.Supp.3d at pp. 259–260
[decedents’ family members have a moderate privacy interest in medical and
autopsy records, “even if the records do not depict graphic death scene images
as in Favish”].)
In Favish, the United States Supreme Court refused to order the
release of death-scene photographs from a federal investigation into Vincent
Foster’s suicide, construing the federal Freedom of Information Act (FOIA) as
recognizing a personal privacy right of surviving family members with
respect to these images. (Favish, supra, 541 U.S. at pp. 160–161, 170.)
Despite some factual similarities, Favish is of limited utility here. The
California Supreme Court has warned that the FOIA provision “at issue in
Favish is not comparable to” section 7927.700, and Favish’s “expansive view
8 As previously noted, state law also protects as particularly sensitive
the decedent’s medical information disclosed to the Coroner’s Office, which
should be separately considered. (See ante, at p. 15, fn. 6 [discussing Civ.
Code, § 56.10, subd. (b)(8)].)
17
of the concept of personal privacy” may not carry over when interpreting the
CPRA. (International Federation, supra, 42 Cal.4th at pp. 336–337, fn. 8.) In
particular, the California Supreme Court warned against shifting to the
person requesting public documents the burden of establishing a sufficient
reason for disclosure. (Ibid.)
The California Supreme Court in International Federation illustrates
the proper application of section 7927.700. The question before the Court
there was whether the CPRA requires a city to disclose the names and
salaries of all its employees earning at least $100,000 per year.
(International Federation, supra, 42 Cal.4th at p. 327.) The city and unions
representing public employees argued against disclosure, asserting the
employees’ right to financial privacy. (Id. at pp. 327–328.) The California
Supreme Court rejected that argument. Although it recognized that
individuals generally have a privacy interest in their own financial
information, the Court observed that compensation of public employees has
long been a matter of public record. (Id. at pp. 330–331.) This custom and
practice means public employees cannot reasonably expect their salary
information to remain confidential, and their privacy interest “is, accordingly,
entitled to diminished weight in the balancing test we apply under section
[7927.700].” (Id. at p. 331.) The Court then discussed the benefits of public
disclosure, which enables citizens to review whether their money is being
properly spent, before concluding: “The [c]ity and the [u]nions failed to
present any evidence establishing that the [c]ity’s consistent past practice of
disclosing its employees’ salaries created any safety or privacy problems for
those employees that would outweigh the public interest in disclosure.” (Id.
at p. 337.)
18
The privacy interest here is similarly diminished and is outweighed by
the public interest in disclosure. Dr. Melnick’s unrebutted testimony was
that “[i]t is common practice for coroners and medical examiners to permit
release of records to outside forensic consultants to perform a secondary
review of the medical evidence.” The Coroner’s Office has presented no
evidence establishing that this common practice creates privacy problems for
family members of the deceased, in this case or more broadly. Following
International Federation, we accordingly conclude that the public interest in
disclosing the Investigation Report—which will facilitate a forensic review
that directly bears on how well the Coroner’s Office has performed its
duties—outweighs any individual privacy interest. Section 7927.700 does not
exempt this document from disclosure.
D.
Finally, respondents contend that the catchall exception of section
7922.000 protects from disclosure the documents petitioners request. Like
section 7927.700, section 7922.000 requires us to balance the public interest
served by disclosure against other interests. With the catchall exception, we
ask whether the public interest served by disclosure is clearly outweighed by
a public interest in not disclosing the records. (§ 7922.000.)
For the most part, respondents’ discussion of a public interest in
nondisclosure reiterates the private interests we analyzed with respect to
section 7927.700. The only truly public interest they add into the mix is a
concern that public disclosure of the requested records will chill cooperation
from members of the public in future coroner’s investigations. A coroner’s
ability to gain cooperation from the public is undoubtedly a significant public
interest, but petitioners point out that the law gives coroners sweeping
powers to control death scenes and the disposition of human remains while
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completing their investigations, and that anyone who interferes with a
coroner’s investigation is chargeable with a misdemeanor. (Gov. Code,
§§ 27491.2, 27491.3, subds. (a) & (c); Health & Saf. Code, § 7102). Petitioners
also point out that the declarations of a Deputy Coroner and Supervising
Deputy Coroner, which respondents submitted in opposing writ relief, are
silent as to any such chilling effect. On this record, respondents have
established no public interest served by withholding the requested documents
that is any more substantial than the private interests we have already found
insufficient under section 7927.700 with regard to the Investigation Report.
We have already found the public interest in disclosure to be significant
since the Investigation Report is essential to a forensic review of the
Coroner’s Office’s determination of the cause of Munir’s death. We
accordingly conclude that any public interest served by refusing to disclose it
does not clearly outweigh this public interest in disclosure. (See L.A. Unified,
228 Cal.App.4th at p. 243.)
IV.
In their appeal, petitioners urge two ancillary points. They contend
that the trial court’s April 4, 2022 order erroneously identified respondents as
the prevailing party and prevented petitioners from recovering attorney’s fees
or costs “pursuant to Government Code section [7923.115] or any other
provision of law.” They also contend that the trial court erred in ignoring
their request to compel limited discovery from the Coroner’s Office as to what
responsive records exist and on what basis they are being withheld.
We will remand for the trial court to consider these issues anew in light
of our conclusions above. We have determined the trial court erred in
limiting petitioners’ CPRA request to solely the Investigation Report and the
postmortem and autopsy photographs. On remand, the trial court should
20
address petitioners’ motion to compel discovery from the Coroner’s Office in
light of this conclusion. We have also determined that the trial court erred in
refusing to order disclosure under the CPRA of, at least, the Investigation
Report. This conclusion means that petitioners are entitled to reasonable
attorney’s fees and court costs. Section 7923.115 makes such an award
“mandatory if the plaintiff prevails” in CPRA litigation. (Filarsky, supra, 28
Cal.4th at p. 427.) We accordingly vacate that portion of the April 4 order
which denies petitioners’ request for fees and costs.
DISPOSITION
The judgment on the Petition is reversed, and the April 4, 2022 order is
vacated to the extent it (1) finds that petitioners limited their CPRA request
to certain photographs and the Investigation Report; (2) finds that the
records sought are not public records and/or are exempt from disclosure
under the CPRA; (3) denies the Petition in its entirety; and (4) orders
petitioners to bear their own attorney’s fees and costs. The matter is
remanded to the trial court for further proceedings consistent with this
opinion. Pursuant to California Rules of Court, rule 8.278(a), petitioners are
awarded their costs on appeal.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
21
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Robert D. Foiles
Counsel: Mackenzie & Albritton, Mark L. Mosley for Plaintiff and
Appellant
John D. Nibbelin, County Counsel, Brian E. Kulich, Chief
Deputy for Defendant and Respondent
Edais et al. v. Superior Court/Edais et al. v. Foucrault et al. (A164947/A165208)
22