August 5, 2003
FROM: Robert J. Freeman, Executive Director
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.
As you are aware, I have received your letter in which you wrote that you are attempting to locate your brother's unmarked grave. You indicated that you know the approximate year of his death, the municipality in which he died, and that he was buried in a "state owned graveyard in the pauper section."
From my perspective, the provisions of the Freedom of Information Law, as well as §§4144 to 4147 of the Public Health Law, are pertinent to your inquiry.
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 for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute, §4174 of the Public Health Law, specifies that "a certified copy or a certified transcript of the record of any death" is exempt from disclosure to the general public and is available only to specified persons or entities in specified circumstances. I know of no analogous provision that pertains to burial permits. Although §4147 is entitled "Deaths: confidentiality of records", the restriction on disclosure is limited. That provision states that:
"The death certificate, burial permit or any other record of death or interment, as defined by article forty-one of this chapter, including but not limited to the name, address or telephone number of the decedent, next of kin or surviving relatives of such decedent, shall not be sold or offered for sale for commercial, promotional or profit-making purposes, without the written consent of the next of kin or the legal representative of such decedent or next of kin. The provisions of this section shall not apply to newspapers or newsletters providing general information to the public. A violation of this section shall constitute a violation as defined in the penal law."
Assuming that you would not seek a burial permit for "commercial, promotional or profit- making purposes", I believe that the permit, or that portion of the permit indicating the location of your brother's grave, must be made available to you.
Although §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy", the burial permit pertains to a person deceased more than twenty-five years, and there is simply nothing personal or intimate about the fact of a death or the location of a burial.
Under §4145 of the Public Health Law, the burial permit is required to be transmitted to the registrar, who in this instance, would be the Town Clerk of the Town of Perrysburg. That being so, it is suggested that a request for a record containing the information sought be made to the Town Clerk.
I hope that I have been of assistance.
cc: Town Clerk, Town of Perrysburg