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October 24, 2001

FOIL-AO-13019

Dear

I have received your letter in which you cited the Freedom of Information Law as your basis
for requesting "information on how to go about procuring" certain medical records pertaining to a
person other than yourself, as well as examinations of the deceased performed by the Medical
Examiner.

From my perspective, your request in actuality seeks guidance rather than records; it is not,
in my view, a request made under or consistent with the Freedom of Information Law. Nevertheless,
I offer the following comments.

First, 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 §87(2)(a) through (i) of the Law.

Second, with respect to both medical records and those prepared in relation to a death by the
Medical Examiner, relevant is §87(2)(a), which pertains to records that "are specifically exempted
from disclosure by state or federal statute.

Section 18 of the Public Health Law deals specifically with access to patient records. In
brief, that statute prohibits disclosure of medical records to all but "qualified persons." Subdivision
(1)(g) of §18 defines the phrase "qualified person" to mean:

"any properly identified subject, committee for an incompetent
appointed pursuant to article seventy-eight of the mental hygiene law,
or a parent of an infant, a guardian of an infant appointed pursuant to
article seventeen of the surrogate's court procedure act or other
legally appointed guardian of an infant who may be entitled to request
access to a clinical record pursuant to paragraph (c) of subdivision
two of this section, or an attorney representing or acting on behalf of
the subject or the subjects estate."
If you are not a "qualified person", I believe that the medical records of your interest would be
exempt from disclosure. To obtain additional information regarding access to patient information,
it is suggested that you contact Mr. Peter Farr, NYS Department of Health, Hedley Park, Suite 303,
Troy, NY 12180.

When an autopsy report or other record of an examination of a death is prepared in New York
City by the Office of the Chief Medical Examiner, it has been held that §557(g) of the New York
City Charter has the effect of a statute and that it exempts those records from the Freedom of
Information Law [see Mullady v. Bogard, 583 NYS 2d 744 (1992); Mitchell v. Borakove, Supreme
Court, New York County, NYLJ, September 16, 1994]. I note that in Mitchell, the court found that
the applicant was "not making his request merely as a public citizen" under the Freedom of
Information Law, "But, rather, as someone involved in a criminal action that may be affected by the
content of these records and thereby has a substantial interest in them." On the basis of Mitchell, it
would appear that your ability to gain access to autopsy reports and related records in question would
be dependent upon your capacity to demonstrate that you have a substantial interest in the records
in accordance with §557(g) of the New York City Charter.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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