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August 26, 1999

Ms. Kathy Hovis
Ithaca Journal
123 West State Street
Ithaca, NY 14850

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 Ms. Hovis:

I have received your correspondence of August 9 and the materials attached to it.
You have asked that I comment with respect to a contention by the Tompkins County District
Attorney that autopsy reports are "confidential" and that "[u]nauthorized disclosure...violates
the law..."

While autopsy reports and related records are not accessible as of right to the public
generally, based on a review of the applicable statute, I do not believe that disclosure of those
records would constitute a violation of law or that there is any prohibition against disclosure.

In his letter to the Tompkins County Medical Examiner, the District Attorney referred
to §677(3)(b) of the County Law, which pertains to autopsy reports and related records and
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
right 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 to gain a right of access.

Nevertheless, a careful reading of the provision quoted above indicates that nothing
in its terms prohibits a coroner, a medical examiner, a district attorney or others from
disclosing the records falling within its coverage. In my experience, there have been
numerous situations in which coroners and medical examiners, as well as district attorneys and
police departments, have asserted their discretionary authority to disclose records falling
within the scope of §677(3)(b), even though there was no obligation to do so.

In my view, a finding that records are confidential and cannot be disclosed must be
consistent with the specific and unequivocal language of a statute. For example, and for the
purpose of comparing the language of § 677(3)(b) of the County Law with another provision
of the County Law, I believe that §308(4) is a statute that prohibits disclosure and leaves no
discretion to the agency that maintains the records falling within its scope. The cited
provision states that:

"Records, in whatever form they may be kept, of calls made to
a municipality's E911 system shall not be made available to
or obtained by any entity or person, other than that
municipality's public safety agency, another government
agency or body, or a private entity or a person providing
medical, ambulance or other emergency services, and shall not
be utilized for any commercial purpose other than the
provision of emergency services."

Section 677(3)(b) provides a right of access to certain persons, but nowhere specifies that
disclosures to others is prohibited. In contrast, §308(4) states that certain records "shall not
be made available" except in specified circumstances.

In sum, while the news media and the general public may have no right to autopsy
reports and related records, there is nothing in the law which in my view precludes a
government official or agency from disclosing those records.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. George M. Dentes
Hon. C. Judson Kilgore, MD