December 30, 1999
The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
I have received your letter of November 11 in which you asked whether an agency
may rely on §87(2)(e)(i) of the Freedom of Information Law after the person who is the
subject of an investigation or judicial proceeding has died, particularly if that was the only
provision cited as a justification for a denial of a request when the deceased was alive. That
provision permits an agency to withhold records or portions thereof that "are compiled for
law enforcement purposes and which, if disclosed, would...interfere with law enforcement
investigations or judicial proceedings."
In this regard, if the deceased was the only person under investigation or the only
subject of a judicial proceeding, it is likely in my view that §87(2)(e)(i) would no longer
serve as a basis for a denial of a request. In short, it is doubtful that the harmful effects
described in that provision would continue to arise by means of disclosure.
That provision, however, may also encompass other grounds for denial. For instance,
when the deceased was alive, the disclosure of records indicating the identity of a witness or
confidential source might have interfered with an investigation or judicial proceeding and,
therefore, might properly have been withheld under §87(2)(e)(i). While that provision might
not be pertinent after the person's death, it is possible that records or portions of thereof
might nonetheless be withheld pursuant to §87(2)(b) on the ground that disclosure would
constitute "an unwarranted invasion of personal privacy" relative to persons other than the
deceased, §87(2)(e)(iii) concerning the identification of a confidential source, §87(2)(f)
involving endangering life or safety, or perhaps §87(2)(g), which pertains to the ability to
withhold certain aspects of internal governmental communications.
In short, even though §87(2)(e)(i) might no longer be applicable after a person's
death and might have been the only provision cited while the person was living, other
grounds for denial might nonetheless be justifiably asserted.
I hope that I have been of assistance.
Robert J. Freeman