A Pitch for Privacy Rights

Milwaukee pitcher Scott Schoeneweis is trying to keep prying eyes out of records detailing his dead wife’s demise. Problem is, he’s asking the Arizona courts to seal otherwise public records. The unlikely moral of this story, so far, for lawyers: in camera reviews just might provide needed relief.

Milwaukee pitcher Scott Schoeneweis is trying to keep prying eyes out of records detailing his dead wife’s demise. Problem is, he’s asking the Arizona courts to seal otherwise public records. The unlikely moral of this story, so far, for lawyers: in camera reviews just might provide needed relief.

On May 20, 2009, detectives from the Maricopa County Sherriff’s Office and Fire EMS personnel responded to a 911 call from the Schoeneweis residence in Fountain Hills, Ariz. The call was made by Gabrielle Dawn Schoeneweis’ 14-year-old daughter, who’d found her mother lying unconscious and unresponsive in the master bedroom.

Gabrielle was pronounced dead at the scene. The coroner’s investigation found that Gabrielle, age 39, had died of an overdose of cocaine and lidocaine. The coroner’s report indicated that Gabrielle’s cocaine use may have harmed another person, though no details were provided.

Gabrielle’s husband, Scott Schoeneweis—then an Arizona Diamondbacks relief pitcher—was appointed personal representative of Gabrielle’s estate and promptly requested that the probate court seal Gabrielle’s death certificate and related documents.

Scott and Gabrielle had celebrated their 10th anniversary five months earlier, in January 2009. They had three children together; Gabrielle already had one daughter when they married.

Scott, born Oct. 2, 1973, in Long Branch, NJ, is Jewish and a survivor of testicular cancer (he was diagnosed his sophomore year at Duke University). A left-hander, he’s pitched for the Anaheim Angels (from 1999 to 2003), Chicago White Sox (2003 to 2004), Toronto Blue Jays (2005 to 2006), Cincinnati Reds (for 2006), New York Mets (from 2007 to 2008) and Arizona Diamondbacks (in 2009).1

His salary for 2009 reportedly was $3.6 million.

Scott spent more than three weeks on the bereavement list before returning to baseball active duty in 2009. Unsurprisingly, his performance suffered and he finished with a 7.12 ERA for the year.

On Feb. 9, 2010, Scott signed a minor league contract with the Milwaukee Brewers with an invite to spring training. He will receive an $800,000, one-year contract if added to the 40-man roster, and have the chance to earn $700,000 in performance bonuses. In his career, Scott had limited lefties to a .229 average. But he’ll have to compete to be the second lefty out of the Brewers' bullpen.


The probate court—without conducting an in camera review—denied Scott’s request to seal documents related to Gabrielle’s death. Although the probate court was not unsympathetic to Scott’s desire for privacy, it held that “personal concerns” do not constitute grounds for sealing a record.

Scott filed a petition for special action relief and application for stay to the appellate court naming the probate court judge, Barbara Hamner, as a respondent along with various officials, including the medical examiner.

Upon review, the Arizona appellate court said the issue was whether Arizona’s Public Records required disclosure of the documents related to Gabrielle’s death. The court delineated a two-step analysis for finding an answer to this dilemma:

• First the court had to determine whether the records at issue are “public records.”

• Second, the court must perform a balancing test to determine whether privacy, confidentiality or the state’s best interests outweigh the policy of disclosure. Schoeneweis v. Hamner 221 P.3d 48 (Ariz. Ct. App. Dec. 1, 2009)

Conducting the first step, the court noted that three types of documents were involved:

(1) an autopsy report (including photographs),

(2) investigative records, and

(3) a death certificate.

As to whether these documents qualify as “public records,” the court said that the state Public Records Act applies to records required to be kept by law or necessary for discharging a duty imposed by law. Therefore,

• Arizona statute requires medical examiners to direct a death investigation and reduce their findings to writing; so, the autopsy report qualifies as a public record.

• Autopsy photographs document the steps in an autopsy and support the autopsy findings; thus, those also qualify as public records.

• The investigative report, including photographs of the scene and witness interviews are prepared and maintained by a state entity in furtherance of its official duties; so, they also qualify as public records.

• Finally, because the medical examiner is required by law to execute a death certificate; the death certificate also is a public record.

As for the second step, the balancing test, the court addressed Scott’s contention that the documents were privileged medical information. In refusing to apply the privilege, the court noted the purpose behind the privilege: to foster open communication between patients and doctors. This purpose does not apply to autopsies, the purpose of which is “fundamentally different from the diagnosis and treatment of a living patient.”

The court added that death certificates may not be disclosed to the general public but rather only to those who have a “legal or vital interest” in the certificate (defined by statute as seven categories of people, none of which include the general public.)

Therefore, the court held that the probate court erred in refusing to prohibit the public release of Gabrielle’s death certificate.

Moreover, the appeals court held that, because the probate court failed to conduct an in camera review of the documents at issue, the probate court could not properly weigh privacy concerns against the policy in favor of disclosure. The appeals court stated that, when the performance of important governmental functions is implicated, privacy interests must yield to public disclosure—but when records of government action are merely incidental to an otherwise private matter, privacy interests prevail.

Gabrielle’s case involved a death and potential injuries to another that resulted from apparent unlawful conduct. Thus, the appeals court found, privacy concerns, including those of living crime victims, must be weighed against the need for public awareness about the government’s performance of its law enforcement functions (which the court aptly distinguished from public curiosity given that Scott is a prominent sports figure.)

In remanding the case for an in camera review, the appeals court stated that it was difficult to conceive of circumstances that would justify disclosure in this case.


In our Jan. 27, 2010, Wealth Watch article “Wrestling with the Privacy Rights of John E. du Pont, Convicted Murderer,” we discussed the issues raised when a potential claimant sought to open the sealed guardianship court records of convicted murderer John DuPont to try to show that DuPont had provided a trust for the claimant.

With the Schoeneweis’ case, we’re looking at efforts to seal otherwise public records related to the death of a prominent sports figure’s wife.

But in both cases, in camera review provides an answer.

Such review, it seems, often provides the best balancing of the parties’ competing interests. It’s an approach that counsel should not overlook in their zeal to prevail on the merits of a dispute over whether to seal or unseal a file that has not been fully examined by the court.

(1) According to wikipedia.com.

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