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FOIL-AO-17622

                                                                                                April 17, 2009

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 hope that you will accept my apologies for the delay in response.  In brief, the issues that you raised relate to your largely unsuccessful efforts in gaining access to records pertaining to the death of your father.  To attempt to assist you and provide guidance, I offer the following comments.

            First, the New York Freedom of Information Law applies to entities of state and local government, such as the State Police, county and other local government agencies.  A VA hospital is a federal agency, and entities of that nature are subject to the federal Freedom of Information Act. 
Second, when seeking records pursuant to the New York Freedom of Information Law, a request should be made to the “records access officer” at the agency or agencies that you believe maintain the records of your interest.  The records access officer has the duty of coordinating an agency’s response to requests for records. 

            On the basis of your letter and inquiries made on your behalf, it appears that the investigator that you contacted is employed by the State Police.  Attached are a State Police request form and instructions for requesting records by regular mail or email (see internet address at bottom of page to locate and send form use to request records via email).  If you believe that other agencies maintain records of your interest, request may be directed to the records access officers at those agencies.

            Third, the Freedom of Information Law pertains to existing records, and §89(3)(a) states in part that an agency is not required to create a record in response to a request.  Similarly, while agency employees may provide information in response to questions, they are not required to do so.  In a situation in which an applicant is informed that a record does not exist, he/she may seek a “certification” to that effect.  The provision cited above also states that, upon request, the agency “shall certify that it does not have possession of such record or that such record cannot found after diligent search.”

            Next, 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 (j) of the Law.

            Most of the exceptions to rights of access relate to potentially harmful effects of disclosure.  For instance, §87(2)(e) pertains to records “compiled for law enforcement purposes” and states that those kinds of records may be withheld insofar as disclosure would interfere with a law enforcement investigation or judicial proceeding, deprive a person of a right to a fair trial, identify a confidential source, or reveal other than routine criminal investigative techniques and procedures.  Because you were informed that there was no “foul play” involved in your father’s death, it is unlikely, in my view, that §87(2)(e), the provision most frequently associated with law enforcement investigations, could justifiably be cited to deny access.  It is suggested that in any request, you supply proof that you are the next of kin of the deceased.

            Lastly, as the next of kin, I believe that you have a right to gain access to an autopsy report and related records.  Access to those records is governed by a statute other than the Freedom of Information Law.  Specifically, pursuant to §677 of the County Law, an autopsy report and related records are available as of right only to a district attorney and the next of kin of the deceased.  Subdivision (1) of that statute provides that:

“The writing made by the coroner, or by the coroner and coroner’s physician, or by the medical examiner, at the place where he takes charge of the body, shall be filed promptly in the office of the coroner or medical examiner.  The testimony of witnesses examined before him and the report of any examination made or directed by him shall be made in writing or reduced to writing and thereupon filed in such office.”

            With respect to access to the records described in subdivision (1), paragraph (b) of subdivision (3) 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."

            Oswego County’s website indicates that the District Attorney also serves as coroner.  Therefore, a request for the autopsy report and related records should be made to Donald H. Dodd, Oswego County District Attorney/Coroner, Public Safety Center, 39 Churchill Road, Oswego, NY 13126.  Again, proof of your status as next of kin should be included with the request.

            I hope that I have been of assistance.  Should any questions arise regarding the foregoing, please feel free to contact me.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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