concurring in part and dissenting in part. The circumstances of this case have convinced me that the letter from the deceased to his mother and the letters and other material specifically addressed to the attorney should be treated as though they had been delivered. The right of an individual not to have his personal and private affairs made public by the government unquestionably protects the privacy of these highly personal papers. It is my opinion that the “zone of privacy” is broad enough to cover a communication with one’s attorney and a letter to one’s mother.
Clearly the material in the briefcase was not a public record prior to being seized by the government. It was never intended to be a part of the public domain. The mere fact that the police may have had the right to look at these papers in the course of their investigation did not, by some process of governmental alchemy, transform this personal and private material into public property. The majority, by judicial fiat, wrongly converts the character of the briefcase contents and the final letter to Mr. Markle’s mother from the property of the mother and the attorney to the property of the police department. Although the police had the right to examine everything they discovered at the scene of the crime, they did not, in consequence, automatically have the right to keep everything they examined and make those items a matter of public record. The rationale behind the procedure endorsed today by the majority would, if carried to its logical conclusion, render the utmost secrets of a victim the property of the police department, and thus subject these secrets to public scrutiny and commercial exploitation.
The majority derives strength from the fact that personal and confidential letters and papers are not expressly exempted from disclosure under the Freedom of Information Act. The most compelling reason for not expressly excluding such information from the mandate of the F.O.I.A. is that the concept is so basic that it was not thought that anyone would claim such material was not privileged. There is no legitimate state purpose in releasing such material to the public.
To read the statute so broadly is not in keeping with the intent of the act. The majority’s interpretation would appear to allow the police to confiscate everything on the scene, including books, papers, articles, pictures, and other secret and personal effects, thereby making them available for public inspection. At the very least, I believe the majority should have exempted the letter from Markle to his mother from disclosure under the provisions of the Freedom of Information Act. The “zone of privacy” exception is also broad enough to include the material in the briefcase which was intended only for the deceased’s attorney. Every bit of information in this record indicates that John Markle fully expected privacy in these circumstances. When we allow personal and confidential letters to enter the public record after seizure by the authorities, we have taken a step toward becoming a police state. “The makers of our Constitution,” as Justice Brandéis observed in his dissent in Olmstead v. United States, 277 U.S. 438 (1928), “. . . conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”
My strongest objection to the majority decision concerns the release of the photographs of the victims of this tragedy. If these gruesome photographs ever served any purpose, that purpose has long since been accomplished. The photographs should then become, like witnesses, no longer a part of the record. There can be no legitimate expectation on the part of the media or the public to examine the horrendous and sickening photographs of every homicide case. All that need be said publicly about these photographs and this material is contained in the majority and concurring opinions.
The majority quotes from Whalen v. Roe, 429 U.S. 589 (1977), which holds that even public officials have a constitutionally protected privacy right in matters of their personal life unrelated to their function in their public capacity. An individual citizen certainly has a greater expectation of privacy and should be protected from governmental disclosure of purely personal matters. I do not understand how it can be asserted that the letter and the attempted communication with the attorney are not “personal in character and potentially embarrassing or harmful if disclosed.”
It is obvious that: (1) the deceased wanted to keep these matters confidential; (2) except for the government action, the material would have been kept confidential; and (3) the contents would be harmful or embarrassing to relatives and friends if they were disclosed. This material consequently meets the privacy test as stated in Whalen v. Roe, supra. Death has sealed the lips of John Markle and his wife and children. The media should not now be given license to expose every facet of his personal life and that of his family. Hopefully, those now entrusted with public disclosure of these materials will use common sense and respect the dignity of the surviving members of the family. The matter is in their hands.
There is of necessity a balancing of interests in this case. The items under consideration are obviously matters of a deeply personal nature which would never have been disclosed had it not been for their seizure by the state. The right of the public to know must be balanced against the right of the individual to privacy, even in cases of great notoriety. See Department of the Air Force v. Rose, 425 U.S. 352 (1976). The photographs add nothing to the government’s explanation of the murders and suicide. There is no doubt about what happened, and the pictures and personal letters and instructions add not one scintilla to the strength of the state’s conclusions. Nothing about the photographs would remotely assist the members of the public in evaluating the duties of the police department.1
For the very reasons set out in the majority opinion, I would hold the personal diary to be protected by the constitutional right of privacy. The diary may have some remote relevance to the other materials to be released under the majority opinion, but it does not in any way aid in the solution of the crime. Nor does release of the diary enhance any legitimate expectation of commercial enterprises to delve into the gory details of this sad event.
In my opinion, neither the deceased’s letter to his mother nor the contents of the briefcase intended for his lawyer are items covered by the Freedom of Information Act. Moreover, common decency and respect for the dead and the living surely demand that this material not be commercialized. I read the material and looked at some of the photographs only because it was my duty to do so. Having done so, I am absolutely persuaded that there is no valid reason to reveal this information to the public. Even if there should be any such reason, its validity is far outweighed by the reasonable expectation of privacy existing at the time the writings were committed to paper. So far as I am concerned, there is no right to exhibit gruesome photographs of dead people.
It may be worth noting that the federal Department of Energy, in dealing with an FOIA request, under 5 U.S.C. 552(b)(6), 10 C.F.R. 1004-10(b)(6), for the release of grisly photographs of the bodies of three persons killed in a reactor explosion, held that while disclosure would not invade the privacy of the deceased victims, the privacy protection of exemption 6 of the act extends to the individual’s immediate family. Thus, “release of the photographs would constitute a substantial invasion of the privacy of the victims’ families.” Independent Documentary Group, San Francisco, California, 7 DOE 80, 174 (1981). See also KUTV, Inc., 4 DOE 81, 150 (1979).