Sadly, it is unusual these days for a week to pass by without news of yet another mass shooting in America. While the news media cover every detail about the shooters, they also often seek to provide information about the lives and deaths of the victims. The families of those slain, however, often assert they have a right to privacy. In one case involving the slaying of 11 civilian victims and a sheriff at a California restaurant in 2018 by shooter Ian Long, surviving family members moved to permanently enjoin the release of the victims’ autopsy reports. They did not succeed.

Plaintiff Arik Housley and the families of all the other victims tried to keep some of the details about their loved ones’ shootings confidential. Their quest for confidentiality was motivated because Housley and some of the other victims’ families had received troubling emails from anonymous senders who claimed the shootings were a hoax or a “plot intended to spur gun control legislation.” They felt that the graphic details about their loved ones’ deaths, as described in Medical Examiner reports, should remain undisclosed.

The victims’ families filed a “reverse-California Public Records Act (CPRA)” lawsuit against the Ventura County Medical Examiners in 2018. In order to understand what a reverse-CPRA suit is, it is necessary to be familiar with the CPRA itself. The law was enacted in 1968 to open government agencies to public scrutiny, unless privacy or public safety exemptions apply. A reverse-CPRA request, according to the Reporters’ Committee for Freedom of the Press (RCFP), seeks to keep those records private.

The RCFP calls this a “disturbing trend” and explains, “Instead of receiving responses to their request for government records under the CPRA, some journalists and news outlets have been served with lawsuits seeking to keep records private…(they are) intended to discourage the press and public from seeking records that could shed light on government activities.”

The trial court issued a preliminary injunction against release of the reports “based on its belief that a bill under consideration by the State legislature might shield reports from disclosure.” Justices in Division Six of California’s Second District Court of Appeal said the trial court erred because it issued the request “without first assessing the probability of respondent families prevailing at trial under existing law.”

The Los Angeles Times, Ventura County, and several other news media respondents appealed the preliminary injunction and won in the Sixth District Court of Appeal, which then remanded the case back to the Superior Court for a hearing. In April 2022, Superior Court Judge Mark S. Borrell denied plaintiff’s request for a preliminary injunction. The news media respondents won in a unanimous, unpublished 3-0 opinion written by Justice Tari L. Cody of Division Six published on June 8.

Justice Cody’s opinion first provided the appellate court’s standard of review for deciding a motion for a preliminary injunction. To prevail, a plaintiff must show a likelihood of prevailing and that, on balance, the harm they suffered would be greater than the harm suffered by defendants if the injunction was to be granted.

This test led to a discussion of CPRA, with the acknowledgment that “open governance must occasionally yield to privacy rights.” The justices then discussed where autopsy reports would fall on the spectrum. While family members contend they should be allowed to honor and mourn their dead, and release of the information could cause them to receive “hateful messages from conspiracy theorists,” California has a history of classifying autopsy reports as public records.

Cody explained that there are statutory exemptions, such as postmortem photos taken by coroners or paramedics. She cited California’s Kobe Bryant & Gianna Bryant Helicopter Safety Act, passed after the tragic death of Los Angeles Laker basketball star Bryant and his daughter. The new law made it a misdemeanor for first responders to “share photographs of deceased persons at accident or crime scenes.” But autopsy reports without photos were found to be different.

“We know of no comparable statute protecting (non-photographic) documents…” Cody wrote. “This is not to say that surviving family members retain no privacy interest in a document such as the (autopsy reports), but any such interest is somewhat diminished, as compared to graphic and unsettling images of the deceased.”

The trial court correctly declined to expand these statutory prohibitions by judicial fiat to non-photographic elements of autopsy reports…” the opinion concluded.

The Reporters Committee for Freedom of the Press, an organization that provides pro bono legal representation to those seeking to protect First Amendment freedoms and the newsgathering rights of journalists, had argued for affirmation of the Superior Court’s decision to release the autopsy reports. “Autopsy reports are necessary to ensuring public oversight of government operations when the importance of such oversight is at its zenith,” it said on its website. “To accept Appellants’ argument would block this key mechanism for accountability.”