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FOIL-AO-13770

December 19, 2002

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

I have received your letter and the materials attached to it. You have questioned the propriety
of a denial of your request for a "list of persons born in Japan or labeled as Japanese by the City of
New York Department of Health and Mental Hygiene who died due to the attacks on September 11,
2001..."

Although the names of all of those who died have been widely published and the Department
has disclosed aggregate data indicating the number of those who died according to their nation of
birth, Counsel to the Department wrote that under provisions of the New York City Health Code and
the Public Health Law, "individualized data cannot be disclosed." He added that:

"...an individual's nationality and/or ethnicity may reasonably be
regarded as private information. Accordingly, even though a list of
the names of victims may have been disclosed, as well as aggregate
data concerning death by nationality, I believe that disclosure of
victims' nationality and/or ethnicity on an individualized basis is
unwarranted. See N.Y. Pub. Off. Law § 87(2)(b)."

In this regard, I offer the following comments.

First, as you may be aware, the advisory jurisdiction of the Committee on Open Government
relates to the Freedom of Information Law. However, there are many instances in which other
provisions of law must be considered and read in conjunction with the Freedom of Information Law
in order to reach a proper legal conclusion. In this instance, I believe that other provisions must be
reviewed in order to offer proper guidance.

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 §87(2)(a) through (i) of the Law.

The first ground of denial, §87(2)(a), pertains to records that "are specifically exempted from
disclosure by statute." There are indeed statutes that clearly limit public disclosure of particular
documents that may be characterized as vital records. For instance, §§4160, 4173 and 4174 of the
Public Health Law specify that fetal death, birth and death certificates, i.e., "a certified transcript of
the record of any death" (§4174), are exempt from disclosure to the public. Similarly, the provisions
in the New York City Health Code cited in response to your request indicate that certain records may
be exempt from disclosure. However, as indicated by the publication of names of deceased and an
array of aggregate data, it is clear the provisions concerning confidentiality pertain to particular
records, and not to disclosure of names of those who died or other data separate from those records.
In short, I do not believe that your request involves a record or records that may be characterized as
"specifically exempted for disclosure...by statute."

Second, it has generally been advised that disclosure of names of individuals coupled with
their nationalities or ethnicity would constitute an unwarranted invasion of personal privacy and may
be withheld under §87(2)(b) of the Freedom of Information Law. However, that opinion has been
expressed with respect to living persons.

There are no decisions rendered under the Freedom of Information Law of which I am aware
that have dealt squarely with the privacy of the deceased. Further, having discussed the issue with
national experts, there is no clear consensus on the matter. Some contend that when a person dies,
the ability of an agency to withhold records to protect his or her privacy disappears, and it has been
so held under the federal Freedom of Information Act. Others suggest that privacy of a deceased
should be protected for a certain, arbitrary period of time (i.e., two years, five years, ten years, etc.).
Perhaps the greatest degree of agreement reflects the point of view that records about a deceased are
generally public, but that those portions which if disclosed would "disgrace the memory" of the
deceased may be withheld.

From my perspective, the last suggestion is most appropriate. I believe that a great deal of
information pertaining to a deceased essentially becomes innocuous by virtue of his or her death and
must be disclosed. Depending on their nature, however, disclosure of intimate details of an
individual's life might indeed disgrace his or her memory, and arguably, those kinds of details might
justifiably be withheld. In addition, depending upon the nature of the records, there may be privacy
considerations relating to the family of the deceased as well.

In my view, particularly in consideration of the information already made public, release of
the names of those who died, with their nationality or ethnicity, would not be so intimate or in any
way disgraceful to their memories that disclosure would rise to the level of an unwarranted invasion
of personal privacy. Consequently, I believe that the information sought should be made available.

In an effort to encourage reconsideration of their response, copies of this opinion will be
forwarded to Department officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Wilfredo Lopez
Rena Bryant