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April 20, 1993

 

 

Mr. Anthony Logallo
90-B-1210
Box 2001
Dannemora, N.Y. 12929

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. Logallo:

I have received your letter of April 1 in which you requested
copies of advisory opinions and raised questions concerning access
to records.

Enclosed are copies of the opinions that you requested.
Please note that several were prepared many years ago and may be
out of date.

You asked whether the "son of a deceased mother" may obtain
copies of the "mother's autopsy report and/or death certificate
without violating the Personal Privacy Protection Law." In my
view, since access to those records is governed by specific
statutes, neither the Freedom of Information Law nor the Personal
Privacy Protection Law would be applicable.

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 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. However, if you are the
"next of kin", I believe that the provision quoted above would
authorize disclosure of an autopsy report to you.

With regard to death records, §4174(1)(a) of the Public Health
Law, which pertains to access to 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, when accessible, are available only under the
circumstances prescribed in the Public Health Law. One of those
circumstances pertains to a specific request by the children of a
deceased.

Your remaining question, as I understand it, is whether the
provisions of the Personal Privacy Protection Law and those in the
Freedom of Information Law pertaining to unwarranted invasions of
personal privacy may be asserted after the death of an individual.
In my view, whether those statutes or perhaps others might serve as
grounds for withholding records would be dependent on the nature of
the records and the effects of their disclosure.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

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