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April 16, 1993

 

 

Mr. David McCallum
86-B-2336
Box 338
Napanoch, NY 12450

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.

Dear Mr. McCallum:

I have received your letter of March 25 in which you sought
advice concerning the use of the Freedom of Information Law to
obtain an autopsy report.

You referred to statutory and decisional law indicating that
an applicant must demonstrate a "substantial interest" in such a
report before a court may order its disclosure. As the defendant,
you wrote that you have such an interest in the report.

In this regard, 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 section 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 is §677 of the County Law, which refers to
autopsy reports and related records. Subdivision (3), paragraph
(b) of that provision 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, for the ability to obtain such a report is based
solely on §677(3)(b) of the County Law.

While you contend that you have a substantial interest in an
autopsy report, §677 indicates that such an interest must be
demonstrated "upon proper application" to an appropriate court.
Further, only a court appears to have the authority to grant such
an application, in which case an order to disclose may be made.

Since a court order is necessary to obtain an autopsy report,
it is suggested that you confer with your attorney.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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