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April 14, 1997

Mr. Dennis N. Hawthorne, Sr.
Oswego County District Attorney/Coroner
Public Safety Center
38 Churchill Road
Oswego, NY 13126

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear District Attorney/Coroner Hawthorne:

I have received your letter of March 25 addressed to William Bookman, Chairman of the Committee on Open Government. As indicated above, the staff of the Committee is authorized to respond on its behalf. In your capacity as counsel for the New York State Association of County Coroners and Medical Examiners, you have requested an advisory opinion concerning public access to the records of the investigation of a death under the Freedom of Information Law.

Notwithstanding the provisions of §677(3)(b) of the County Law, you wrote that you have been receiving requests for the records in question with increasing frequency from civil plaintiff's attorneys and newspaper reporters. You added that in some instances, the files may include police investigation reports that are requested after an investigation has been closed.

From my perspective, rights of access to the records described in §677 of the County Law are governed by that statute rather than the Freedom of Information Law. In this regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in section 87(2)(a) through (i) of the Law. Although that statute provides broad rights of access, the initial ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute."

One such statute is §677 of the County Law, which refers to autopsy reports and related records. As you are aware, subdivision (3), paragraph (b) of that provision states that:

"Such records shall be open to inspection by the district attorney of the county. Upon application of the personal representative, spouse or next of kin of the deceased to the coroner or the medical examiner, a copy of the autopsy report, as described in subdivision two of this section shall be furnished to such applicant. Upon proper application of any person who is or may be affected in a civil or criminal action by the contents of the record of any investigation, or upon application of any person having a substantial interest therein, an order may be made by a court of record, or by a justice of the supreme court, that the record of that investigation be made available for his inspection, or that a transcript thereof be furnished to him, or both."

Based upon the foregoing, the Freedom of Information Law in my opinion is inapplicable as a basis for seeking or obtaining an autopsy report or other records described in §677, for the ability to obtain such records is based solely on §677(3)(b). In my view, only a district attorney and the next of kin of the deceased have a right of access to records subject to §677; any others would be required to obtain a court order based on demonstration of substantial interest in the records.

Second, as I understand §677, it pertains to the autopsy report and the "writings" of the coroner or medical examiner. I do not believe that it includes records prepared by a police department, for example, that come into the possession of a coroner or medical examiner. Those records, in my view, would be subject to the Freedom of Information Law, i.e., they would be available or deniable in whole or in part in conjunction with the grounds for denial appearing in §87(2) of that statute.

Lastly, while §677(3)(b) may grant limited rights of access, there is nothing in that statute or the Freedom of Information Law that would prohibit a coroner or medical examiner from disclosing records subject to §677. As such, coroners or medical examiners may and often do disclose various aspects of those records.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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