Comaroto v. PIERCE CTY. MEO

• Decision Date: 05 April 2002
• Docket Number: No. 26792-6-II.,26792-6-II.
• Citation: 43 P.3d 539,111 Wash.App. 69
• Parties: Gregory A. COMAROTO, Appellant, v. PIERCE COUNTY MEDICAL EXAMINER'S OFFICE, Respondent.
• Court: Washington Court of Appeals

43 P.3d 539

111 Wash.App. 69

Gregory A. COMAROTO, Appellant, v. PIERCE COUNTY MEDICAL EXAMINER'S OFFICE, Respondent.

No. 26792-6-II.

Court of Appeals of Washington, Division 2.

April 5, 2002.

Gregory A. Comaroto, pro se Appellant.

Douglas Warren Vanscoy, Deputy Prosecuting Attorney, for Respondent.

HUNT, J.

Gregory Comaroto, convicted of child molestation, appeals the denial of his request for disclosure of his victim's suicide note under the Public Records portion of the Public Disclosure Act (Act), RCW 42.17. Agreeing with the trial court that this note is exempt from disclosure under the Act, we affirm.

FACTS

Comaroto was convicted of committing a lewd or lascivious act on a child, M. L., his wife's niece. M.L. later committed suicide, leaving a handwritten, two-page suicide note for her family. The suicide note was initially included in the Sheriff's Department's Incident Report on M.L.'s death. The Sheriff's Department provided the note to the medical examiner, who returned the original to M.L.'s family and kept a copy.

Comaroto's attorney requested that Pierce County Medical Examiner Dr. John D. Howard disclose "copies of the diary entries and/or suicide note left by [M.L.]." Clerk's Papers (CP) at 13. Dr. Howard responded:

In connection with this postmortem, my office received from law enforcement two sheets of original writings which were in fact considered in reaching the official classification of the manner of death. The originals were returned to the family, and my office retains copies.... Whether the Sheriff's Office keeps copies of such evidence, and whether it would produce such copies at your request if it did, are not matters within my province.

Writings of a suspected suicide are physical evidence considered by the medical examiner in reaching the conclusions required by law....

[T]he subject writings are not available for public inspection and copying ... and your request is respectfully denied.

CP at 15.

Comaroto sued the Pierce County Medical Examiner's Office, seeking disclosure of the suicide note under the Act, RCW 42.17.340(1). The Medical Examiner opposed the motion, arguing that its copies of M.L.'s suicide note are exempt from disclosure by operation of RCW 68.50.105, which exempts autopsy and post mortem reports and records, subject to limited exceptions. At Comaroto's request, the trial court reviewed the note in camera under RCW 42.17.340(3) and ruled that it was exempt from disclosure under RCW 68.50.10. The court denied Comaroto's motion for disclosure, sealed the copies of the note,¹ and dismissed the action with prejudice. Comaroto appeals.

ANALYSIS

I. PUBLIC DISCLOSURE ACT, RCW 42.17

The Legislature designed the Public Disclosure Act, RCW 42.17.250.348, to provide public access to public records. RCW 42.17.010; RCW 42.17.260. The Act's purpose is to preserve "the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions." O'Connor v. Washington State Dep't of Soc. & Health Serv., 143 Wash.2d 895, 905, 25 P.3d 426 (2001) (citation omitted). But as our Supreme Court has noted,

The basic purpose and policy of RCW 42.17 is to allow public scrutiny of government, rather than to promote scrutiny of particular individuals who are unrelated to any governmental operation.

In re Rosier, 105 Wash.2d 606, 611, 717 P.2d 1353 (1986), superseded on other grounds by RCW 42.17.255.

A. STANDARD OF REVIEW

The Act provides that "[j]udicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo." O'Connor, 143 Wash.2d at 904, 25 P.3d 426 (citation omitted). "[T]he appellate court stands in the same position as the trial court where the record consists only of affidavits, memoranda of law, and other documentary evidence." O'Connor, 143 Wash.2d at 904, 25 P.3d 426 (citation omitted).

The issues here are: (1) whether the suicide note is a public record under the Act; and (2) if so, whether it is exempt from disclosure. We answer yes to both questions.

B. DISCLOSURE

The following "public records" are subject to disclosure under the Act:

any writing containing information relating to ... the performance of any governmental or proprietary function .... used, or retained by any state or local agency regardless of physical form or characteristics....

RCW 42.17.020(36).² RCW 42.17.020(42) further defines "writing" as

... photostating, photographing, and every other means of recording any form of communication or representation ... and all papers, ... and other documents including existing data compilations from which information may be obtained or translated.

If a statute is plain and unambiguous, we derive its meaning from the wording of the statute itself. Berger v. Sonneland, 144 Wash.2d 91, 105, 26 P.3d 257 (2001). Under the plain language of RCW 42.17.020(42), M.L.'s handwritten suicide note is a "writing" because it comprises papers and other documents, from which information may be obtained. The sheriff gathered and temporarily retained the note before delivering it to the medical examiner's office (a governmental agency) to investigate and to determine the cause of M.L.'s death (a government function). RCW 42.17.020(36).

The suicide note, therefore, meets the statutory definition of a public record, which must be disclosed upon request, "unless the record falls within the specific exemptions of subsection (6) of this section, RCW 42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of specific information or records." RCW 42.17.260(1).

C. EXEMPTIONS

Here, we analyze two exemptions: (1) a medical examiner's records, exempt under RCW 68.50.105; and (2) investigative records, the nondisclosure of which is necessary to protect "any person's right of privacy," exempt under RCW 42.17.310(1)(d).

1. Medical Examiner's Records

The trial court ruled that M.L.'s suicide note was exempt from disclosure under RCW 68.50.105. We agree. RCW 68.50.105 provides that autopsy and post mortem reports and records are confidential and exempt from examination by the public.³ The suicide note was part of the medical examiner's post mortem report about the circumstances of M.L.'s death.

Comaroto argues that because a suicide note is necessarily written before, rather than after ("post") death and creation of medical examiner's records, the note cannot be part of a post mortem record. The timing of the suicide note's creation, however, is not dispositive. "Post mortem" means "pertaining to or occurring during the period after death." STEDMAN'S MEDICAL DICTIONARY, 1413 (26th ed.1995). Although obviously written before death, the suicide note was collected and included in medical examiner Dr. Howard's post mortem report and record of his investigation of the circumstances of M.L.'s death.

As our Supreme Court has clearly held with respect to autopsy photographs,

RCW 68.50.105 ... reflects a public policy identified by the Legislature that records made during an autopsy remain confidential and should be released only to those persons which have a genuine interest in the reports. The County's assertion that Plaintiffs⁴ have no privacy interest in the autopsy records is refuted by RCW 68.50.105, which requires confidentiality....

Reid v. Pierce County, 136 Wash.2d 195, 211-12, 961 P.2d 333 (1998).⁵

If autopsy photographs are protected from public disclosure under the medical examiner's records exemption, then so are suicide notes for the same reasons; they, too, are part of the medical examiner's post mortem report on the cause of death. Consequently, analogizing to Reid, we hold that the suicide note is exempt from disclosure under RCW 68.50.105.

2. Personal Privacy

Washington's Act also protects individual privacy with exemption from public disclosure:

(1) The following are exempt from public inspection and copying:

....

(d) ... specific investigative records compiled by investigative, law enforcement, and penology agencies, ... the nondisclosure of which is essential .... for the protection of any person's right to privacy.

RCW 42.17.310(1)(d)(emphasis added).

A person's "right to privacy," "right of privacy," "privacy," or "personal privacy," as these terms are used in this chapter, is invaded or violated only if disclosure or information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.

RCW 42.17.255 (emphasis added).

The Act protects "any person's privacy," including the deceased's loved ones and their memory of her. As the Supreme Court concluded in Reid, albeit under the medical examiner exemption,

[T]he relatives of the deceased have a protectable privacy interest.

....

We hold the immediate relatives of a decedent have a protectable privacy interest in the autopsy records of the decedent. That protectable privacy interest is grounded in maintaining the dignity of the deceased.

Reid, 136 Wash.2d at 212, 961 P.2d 333.⁶

Our Supreme Court has also examined and identified the nature of facts protected by the right of privacy as follows:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.

Cowles Publ'g Co. v. State Patrol, 109 Wash.2d

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