December 12, 2001


Ms. Janice M. Pennington
803 Bottchers Landing
Big Flats, NY 14814

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 Ms. Pennington:

I have received your letter in which you sought an advisory opinion concerning rights of access to photographs taken during an autopsy. The autopsy was performed following the death of a victim of a shooting, and your husband was convicted as a result of the event.

You wrote that the autopsy was performed by Dr. Baik, the Erie County Associate Medical Examiner, and that photographs were taken by Dr. Baik and State Police Investigator Raymond Motyka. You added that “[t]hrough pre-trial discovery, it was learned that the 35mm autopsy photographs taken by Dr. Baik were exposed and failed to develop”, that “[t]he photographs taken by Inv. Motyka were the only photographic evidence of the autopsy”, and that “[t]hese photographs were used during the criminal trial.”

Having requested the photographs from the Office of the Erie County District Attorney, you were denied access on the basis of §677 of the County Law. You have contended that §677 is inapplicable because the photographs were taken by the State Police, rather than the Medical Examiner and that they should be available based on the holding in Moore v.Santucci [151 AD2d 677 (1989)].

In this regard, I offer the following comments.

First, as you are likely aware, 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."

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.

Nevertheless, according to your description of the facts, the photographs at issue were not taken by the Associate Medical Examiner, but rather by a State Police Investigator. If that is so, it is questionable in my view whether §677 applies. If it is the governing statute, I believe that a court order would ordinarily be required to gain access to the records. If it does not apply, the Freedom of Information Law, in my opinion, would govern rights of access.

Second, notwithstanding the foregoing, even though records might ordinarily be withheld under the Freedom of Information Law, it has been held that there is no basis for denial once the records have been presented in a public judicial proceeding. In Moore, the decision to which you referred, the Court found that:

“...while statements of the petitioner, his codefendants and witnesses obtained by the respondent in the course of preparing a criminal case for trial are generally exempt from disclosure under FOIL (see, Matter of Knight v Gold, 53 AD2d 694, appeal dismissed 43 NY2d 841), once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public” [151 AD2d 677,679 (1989)].

In short, by disclosing the photographs in open court, a public disclosure would have already been made. Once that occurs, unless a record is later sealed, nothing in the Freedom of Information Law would serve to enable an agency to deny access to that record.

That principle appears to have been recognized in a case involving an attempt by a new organization to obtain a videotape from the court, which denied the request "based on the court's concerns that the integrity of the evidence in question would be placed in jeopardy" (see People v. Shulman, Supreme Court, Suffolk County, NYLJ, December 24, 1998).
Although the trial judge's refusal to provide the videotape was based on its fear that the tape, as evidentiary material, might in some way be damaged, he emphasized that:

"...there are other mechanisms which have already been confirmed by the court in that they could simply file a Foil request with the district attorney's office for a copy of the tape, and based on the appellate law, it's clear that the district attorney's office, if they have a copy, would have to turn it over to News 12...It seems to me that would be the appropriate way to proceed" (Transcript of Order by Hon. Arthur G. Pitts, pp. 5-6, November 6, 1998, County Court, Suffolk County).

In consideration of the foregoing, while the trial judge denied the request for the court's copy of the videotape based on concern for the physical integrity and security of the tape, he essentially recommended that a copy be sought from the District Attorney and recognized that a duplicate must be disclosed by the District Attorney in response to a request made under the Freedom of Information Law.

Lastly, another aspect of Moore may be equally significant, for it was also held that if a record sought was previously made available to the defendant or his or her attorney, there must be a demonstration that neither possesses the record in order to successfully obtain a second copy. Specifically, the decision states that:

"...if the petitioner or his attorney previously received a copy of the agency record pursuant to an alternative discovery device and currently possesses the copy, a court may uphold an agency's denial of the petitioner's request under the FOIL for a duplicate copy as academic. However, the burden of proof rests with the agency to demonstrate that the petitioner's specific requests are moot. The respondent's burden would be satisfied upon proof that a copy of the requested record was previously furnished to the petitioner or his counsel in the absence of any allegation, in evidentiary form, that the copy was no longer in existence. In the event the petitioner's request for a copy of a specific record is not moot, the agency must furnish another copy upon payment of the appropriate fee...unless the requested record falls squarely within the ambit of 1 of the 8 statutory exemptions" (id., 678).

Based on the foregoing, it is suggested that you contact the attorney to determine whether he or she continues to possess the record. If the attorney no longer maintains the record, he or she, as well as your husband, should prepare affidavits so stating that can be submitted to the office of the district attorney.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: John DeFranks