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From:   Freeman, Robert (DOS)
Sent:    Friday, April 26, 2013 9:02 AM
To:      
Cc:      
Subject:           RE: FOIL Control No. 2013FR00990 - Response

Good morning to both - -

            For several reasons, I respectfully question the basis for the denial of your request.

            In brief, first, in a city of more than 8 million, it is unlikely in my view that disclosure of the items you seek could identify decedents or their families. 

            Second, the statute referenced in the response, section 4147 of the Public Health Law, refers to the ability to withhold “The death certificate, burial permit or any other record of death or interment, as defined by article forty-one of this chapter….”  Definitions applicable to the matter appear in section 4100-a and include reference to specific records, defining “certified copy” as “a photographic reproduction in the form of a photocopy or microfilm print of the original certificate”, and defining “certified transcript” as “a computer generated or other reproduction of information abstracted from the original state or local record…”  Further, a “certification of death” contains “only the name, the date of death and the place of the death of the person to whom it relates…”  As I understand those provisions, the only item among those requested that might arguably be withheld would involve the zip code, if the zip code is equated with the “place of the death of the person to whom it relates.”  If the place of death is a street address, I do not believe that a zip code could be characterized as exempt from disclosure.

            Third, section 87(2)(a) of the Freedom of Information Law (FOIL) pertains to records that “are specifically exempted from disclosure by state or federal statute.”  Not all “laws” are statutes, and it has been determined judicially that a “statute” is an enactment of Congress or the State Legislature.  That being so, Code provisions adopted in New York City would not constitute statutes unless enacted by the State Legislature.  If they were not so enacted, they would not serve to exempt records from disclosure in a manner inconsistent with FOIL.

            Fourth, that data may not be “final” would not constitute a basis for a denial of access under section 87(2)(g) of FOIL.  That contention was rejected by the Court of Appeals, the state’s highest court, in Gould v. New York City, 89 NY2d 267.  That being so, statistical or factual data must be disclosed, unless a separate exception may properly be asserted.  FOIL defines the term “record” in section 86(4) to mean “any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever…”  That being so, when the data exists, it falls within the definition of “record”; that it is or does not relate to finality is not determinative of rights of access.

            In sum, with the possible exception of the zip code in accordance with the commentary offered above, it is my view that the data sought must be disclosed to comply with law.  It is my hope that Ms. Anhouse and other Department officials will reconsider the response to your request.

            I hope that I have been of assistance.