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FOIL-AO-16093

August 1, 2006

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 concerning requirements relative to the disclosure of "(1) official death inquest material, (2) toxicological and latent fingerprint data, and (3) ballistic reports" pertaining to a "fifty-four year old unsolved homicide case that occurred in Westchester County."

In this regard, as you may recall, 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. I note that many of the grounds for denial of access are based on the likelihood that some sort of harm would occur through disclosure. From my perspective, and as suggested to you in 2003, because the records at issue relate to an event that occurred more than fifty years ago, it may be difficult in some instances for an agency in possession of the records to justify a denial of access.

There are, however, statutes that may remove records from the coverage of the Freedom of Information Law, and I believe that to be so in connection with "official death inquest material." In an early New York case, a "coroner’s inquest" was described as an examination by a coroner or medical examiner into the causes and circumstances relating to a death that occurred by violence or suspicious circumstances [Ehlers v. Blood, 22 NYS2d 1001 (1940)]. Section 677(1) of the County Law refers to "The writing made by the coroner, or by the coroner and the coroner’s physician, or by the medical examiner, at the place where he takes charge of the body", and subdivision (2) to "The report of any autopsy or other examination [which] shall state every fact and circumstance tending to show the condition of the body and cause and means or manner of death." Most significant in consideration of the first aspect of your request is §677(3)(b), which states that:

"Such records shall be open to inspection by the district attorney of the county. Upon application of the personal representative, spouse or next of kin of the deceased to the coroner or the medical examiner, a copy of the autopsy report, as described in subdivision two of this section shall be furnished to such applicant. Upon proper application of any person who is or may be affected in a civil or criminal action by the contents of the record of any investigation, or upon application of any person having a substantial interest therein, an order may be made by a court of record, or by a justice of the supreme court, that the record of that investigation be made available for his inspection, or that a transcript thereof be furnished to him, or both."

Based upon the foregoing, the Freedom of Information Law in my opinion is inapplicable as a basis for seeking or obtaining an autopsy report or other records described in §677, for the right to obtain such records is based solely on §677(3)(b). In my view, only a district attorney and the next of kin of the deceased have a right of access to records subject to §677; any others would be required to obtain a court order based on demonstration of substantial interest in the records to gain a right of access.

Nevertheless, a careful reading of the provision quoted above indicates that nothing in its terms prohibits a coroner, a medical examiner, a district attorney or others from disclosing the records falling within its coverage. In my experience, there have been numerous situations in which coroners and medical examiners, as well as district attorneys and police departments, have asserted their discretionary authority to disclose records falling within the scope of §677(3)(b), even though there was no obligation to do so.

In short, while the public may have no right to obtain autopsy reports and related records, there is nothing in the law which in my view precludes a government official or agency from disclosing those records.

With respect to the remaining records involving toxicological and latent fingerprint data, as well as ballistics reports, two of the grounds for denial in the Freedom of Information Law appear to be relevant in considering rights of access.

Assuming that those records were prepared by a government agency, such as a police department or office of a district attorney, I believe that they would fall within the coverage of §87(2)(g). As you may recall, although that provision potentially serves as a basis for a denial of access, due to its structure, it may require substantial disclosure. Specifically, that provision authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
It is likely that the contents of the records at issue would consist largely of statistical or factual information that must be disclosed, again, unless a separate exception to rights of access may properly be asserted.

The remaining exception of likely significance is §87(2)(e), which permits an agency to withhold records that:

"...are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;"

As suggested in my 2003 response to you, in view of the fact that more than fifty years have passed since the murder, it is inconceivable that significant aspects of thee records relating to the murder would, if disclosed, interfere with an investigation. That is particularly so if indeed no investigative activity has recently occurred or is in any way ongoing. The less such activity has recently occurred, the less is the ability, in my view, to contend that disclosure would interfere with an investigation. If the case has effectively been closed, it might be contended that disclosure at this juncture would neither have an effect on nor interfere with the investigation.

With specific respect to toxicological and fingerprint data and ballistics reports, the key provision in my opinion is subparagraph (iv.) of §87(2)(e). That provision pertains to the authority to withhold records compiled for law enforcement purposes which, if disclosed, would reveal non-routine criminal investigative techniques and procedures.

In Fink v. Lefkowitz [47 NY2d 567 (1979)], the Court of Appeals, the state’s highest court, held that:

"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution.

"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements (see Stokes v. Brennan, 476 F2d 699, 702; Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis, Administrative Law [1970 Supp], section 3A, p 114).

"Indicative, but not necessarily dispositive of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel (see Cox v. United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F Supp 958)."

In applying those criteria to specific portions of the manual, which was compiled for law enforcement purposes, the Court found that:

"Chapter V of the Special Prosecutor's Manual provides a graphic illustration of the confidential techniques used in a successful nursing home prosecution. None of those procedures are 'routine' in the sense of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93 Cong 2d Sess [1974]). Rather, they constitute detailed, specialized methods of conducting an investigation into the activities of a specialized industry in which voluntary compliance with the law has been less then exemplary.

"Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a way as to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 of the manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention to requests by nursing homes for Medicaid reimbursement rate increases based upon projected increase in cost. As this is simply a routine technique that would be used in any audit, there is no reason why these pages should not be disclosed" (id. at 573).

As the Court of Appeals has suggested, to the extent that the records in question include descriptions of investigative techniques or procedures which if disclosed would enable potential lawbreakers to evade detection or endanger the lives or safety of law enforcement personnel or others [see also, Freedom of Information Law, §87(2)(f)], a denial of access would be appropriate.

I would conjecture that the techniques and procedures used now may substantially differ from those employed more than fifty years ago. If that is so, the ability to assert §87(2)(e)(iv) would likely be minimal. I note, too, that although it was held based on the facts in a particular case that although "laboratory examinations of certain items of evidence seized from both the crime scene and elsewhere" may be withheld, "ballistic and fingerprint tests" were found to be accessible, for disclosure of those tests would not enable future violators of law to tailor their conduct to evade detection [Spencer v. New York State Police, 187 AD2d 919 (1992)]

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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