June 23, 2004
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.
I have received your letter and apologize for the delay in response. You have sought assistance in locating your great uncle who resided in Erie County at the time of his death in 1979. While I do not believe that a death certificate must be disclosed, it is possible that a burial permit would be available if you can ascertain the location of the burial.
In this regard, I offer the following comments.
First, 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. Although that statute provides broad rights of access, the initial ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute."
On such statute, §4174(1)(a) of the Public Health Law, pertains to access to certified copies of certified transcripts of death records, states that such records are available:
"(1) when a documented medical need has been demonstrated, (2) when a documented need to establish a legal right or claim has been demonstrated, (3) when needed for medical or scientific research approved by the commissioner, (4) when needed for statistical or epidemiological purposes approved by the commissioner, (5) upon specific request by municipal, state or federal agencies for statistical or official purposes, (6) upon specific request of the spouse, children, or parents of the deceased or the lawful representative of such persons, or (7) pursuant to the order of a court of competent jurisdiction on a showing of necessity; except no certified copy or certified transcript of a death record shall be subject to disclosure under article six of the public officers law..."
Article six of the Public Officers Law is the Freedom of Information Law. As such, based upon the provision quoted above, death records are available only under the circumstances prescribed in the Public Health Law. Unless you are the lawful representative of the deceased, I do not believe that you would have the right to obtain a death certificate.
Second, however, 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 uncle’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 in this instance would pertain to a person deceased for 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. It is my understanding that the registrar is the town clerk in towns and the city clerk in cities. In an effort to assist you, under a separate email, I will send you a document found on the internet which lists cemeteries located in Erie County.
I hope that I have been of assistance.