Autopsy records of a public official

Q: I am news producer at a television station. One of our city councilmen, recently died.
Under the public records act, the county medical examiner released their autopsy report, which indicated alcoholic hepatitis.

However, the medical examiner is refusing to release the clinical tests which were done to determine whether they had VIRAL hepatitis (i.e. hepatitis A or B). They are citing Government Code 6254 which exempts from disclosure "Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." The medical examiner says we need permission from the family to obtain the viral hepatitis test results.

This test was conducted post-mortem, as part of the autopsy, but it was not included in the official autopsy report. Hepatitis A or B can be contracted from any number of sources, including homosexual sex, intravenous drug use, blood transfusions, etc.

I thought the right of privacy under this exemption goes away when the individual dies. True? In your opinion, is this a case the media would likely win if we went to court?

A: Although I am not aware of any California Public Records Act case on point, the United States Supreme Court recently interpreted a similar provision in the federal Freedom of Information Act (Exemption 7(C)) to provide privacy rights that were held by the deceased's family. The case is National Archives and Records Administration v. Favish, 541 U.S. __ (2004), and the opinion was unanimous. The case involved pictures of the condition Vince Foster's body at his death.

Nevertheless, even assuming that a privacy right (for purposes of the PRA exemption) survives death, that still raises the question whether the records in question constitute an "unwarranted invasion of personal privacy." I can understand the argument that since viral hepatitis CAN be the result of activities that a person would wish to keep private, that such medical information should also be kept private. But given that the coroner's office has already disclosed alcoholic hepatitis (which would be subject to the same argument), it seems curious that it is drawing the line at viral hepatitis.