Swickard v. Wayne County Medical Examiner, Docket No. 127076

• Citation: 459 N.W.2d 92,184 Mich.App. 662
• Decision Date: 24 October 1990
• Docket Number: Docket No. 127076
• Parties: Joe SWICKARD, Plaintiff-Appellee, v. WAYNE COUNTY MEDICAL EXAMINER, Defendant-Appellant. 184 Mich.App. 662, 459 N.W.2d 92, 17 Media L. Rep. 2165
• Court: Court of Appeal of Michigan — District of US

Page 92

459 N.W.2d 92

Joe SWICKARD, Plaintiff-Appellee, v. WAYNE COUNTY MEDICAL EXAMINER, Defendant-Appellant.

Docket No. 127076.

184 Mich.App. 662, 459 N.W.2d 92, 17 Media L. Rep. 2165

Court of Appeals of Michigan.

Submitted May 3, 1990.

Decided July 16, 1990.

Released for Publication Aug. 23, 1990.

Leave to Appeal Granted Oct. 24, 1990.

[184 MICHAPP 663] Honigman, Miller, Schwartz & Cohn by Herschel P. Fink and Kenneth R. Chadwell, Detroit, for Joe Swickard.

Saul A. Green, Corp. Counsel, and Ellen E. Mason, Asst. Corp. Counsel, Detroit, for Wayne County Medical Examiner.

Bell & Gardner, P.C. by Samuel C. Gardner, Detroit, for Dorothy Quinn.

Before CAVANAGH, P.J., and McDONALD and MARILYN J. KELLY, JJ.

CAVANAGH, Judge.

Defendant appeals as of right the [184 MICHAPP 664] March 23, 1990, order of the circuit court compelling defendant to disclose the autopsy report and the toxicology test results of Longworth Quinn, Jr. Dorothy Quinn, the decedent's mother and the temporary personal representative of his estate, has intervened with this Court's permission. Both parties have raised various arguments. We affirm.

On January 4, 1990, Longworth Quinn, Jr., the Chief Judge of 36th District Court, was found shot to death in his mother's home, the victim of an apparent suicide. On January 23, 1990, plaintiff, a Detroit Free Press staff writer, requested under the Michigan Freedom of Information Act, M.C.L. Sec. 15.231 et seq.; M.S.A. Sec. 4.1801(1) et seq., that the Wayne County Medical Examiner make available the autopsy report on Judge Quinn and the results from any toxicology tests. When defendant replied that the requested information would be made available only after plaintiff presented a duly executed authorization, this lawsuit was filed.

Defendant claims on appeal that the trial court erred in ordering disclosure because the information requested is subject to a number of exemptions under the act, and because the trial court's decision was made without the benefit of an evidentiary hearing. The intervenor also relies on the statutory exemptions in arguing that the information should be withheld and, in addition, claims that disclosure would violate the family's constitutional right to privacy.

Under the act, an individual has the right to receive, upon proper request, copies of public records not subject to exemption from disclosure. M.C.L. Sec. 15.243(1); M.S.A. Sec. 4.1801(13)(1). The exemptions must be narrowly interpreted, Post-Newsweek Stations, Michigan, Inc. v. Detroit, 179 Mich.App. 331, 335, 445 N.W.2d 529 (1989), and the burden of proof is on the party claiming an exemption, The Evening[184 MICHAPP 665] News Ass'n v. City of Troy, 417 Mich. 481, 503, 339 N.W.2d 421 (1983), reh. den. 418 Mich. 1202 (1984).

Section 13(1)(d) of the act exempts from disclosure "records or information specifically described and exempted from disclosure by statute." Section 13(1)(i) exempts from disclosure "information subject to the physician-patient privilege." Both the defendant and the intervenor rely on these sections of the act to argue that, because the requested information is shielded by the physician-patient privilege found in M.C.L. Sec. 600.2157; M.S.A. Sec. 27A.2157, the information is exempt from disclosure. We disagree.

M.C.L. Sec. 600.2157; M.S.A. Sec. 27A.2157 provides, in pertinent part:

No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon....

This Court has already addressed the issue, albeit in a different context, and found it very clear that "the performing of an autopsy ... by the county medical examiner" was not an action taken while attending the deceased "as a patient or for the purpose of treatment, advice or surgery." Estate of Green v. St. Clair Co. Road. Comm., 175 Mich.App. 478, 489, 438 N.W.2d 630 (1989). Also see Osborn v. Fabatz, 105 Mich.App. 450, 306 N.W.2d 319 (1981). Furthermore, because a confidential relationship between physician and patient cannot arise when the patient is deceased, this Court was convinced that the physician-patient privilege never came [184 MICHAPP 666] into existence. Green, supra, 175 Mich.App. at 489, 438 N.W.2d 630. The same reasoning applies in the present case.

Both the defendant and the intervenor also rely on Sec. 13(1)(a) which exempts "[i]nformation of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." They argue that the autopsy report and the toxicology test results are information of a personal nature, the disclosure of which would violate the decedent's common-law right to privacy. In addition, they argue that disclosure would violate the Quinn family's constitutional right to privacy.

While neither a balancing of the interests involved nor consideration of the purpose behind the request to disclose is appropriate, the courts must apply "the principles of privacy developed under the common law and our constitution" in determining whether a release of information is statutorily barred. State Employees Ass'n v. Dep't of Management & Budget, 428 Mich. 104, 123, 404 N.W.2d 606 (1987). The facts of each case must be examined "to identify those in which ordinarily impersonal information takes on 'an intensely personal character' justifying nondisclosure under the privacy exemption." Id., quoting from Kestenbaum v. Michigan State Univ., 414 Mich. 510, 327 N.W.2d 783 (1982), reh. den. 417 Mich. 1103 (1983).

The right protected is a personal right, peculiar to the person whose privacy is invaded. Consequently, after that...