November 13, 1997

Mr. Brian W. Raum
The American Center for Law and Justice
1000 Regent University Drive
P.O. Box 64429
Virginia Beach, VA 23467

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 Mr. Raum:

I have received your letter of October 10 in which you requested an
advisory opinion concerning your right to obtain certain data from the Village
of Southampton.

You have questioned "whether the New York State Department of
Health has the authority to prevent Village Registrars from releasing non-identifiable, statistical information about abortions." You also asked whether
a village registrar has the authority to "mandate the destruction of abortion
information after one month."

In this regard, I offer the following comments.

First, it is noted that the Freedom of Information does not address the
issue of retention or disposal of records, and I am unaware of the length of
time that the information in question must be retained. Provisions concerning
the retention and disposal of records are found in Articles 57 and 57-A of the
Arts and Cultural Affairs Law and implemented by the State Archives and
Records Administration, which is a unit of the State Education Department.
It is suggested that you contact that agency to ascertain the scheduled period
regarding the retention of the records.

Second, although the Freedom of Information Law provides broad
rights of access, pertinent in this instance in my view is §87(2)(a), which
relates to records that "are specifically exempted from disclosure by state or
federal statute." One such statute, as you may be aware, is §4174 of the
Public Health Law, which deals specifically with records of deaths. Paragraph
(a) of subdivision (1) of that statute indicates that death records may be
disclosed only under specified circumstances and states in part that "no...death
record shall be subject to disclosure under article six of the public officers
law", which is the Freedom of Information Law.

Also pertinent is subdivision (1)(e), which provides that: "The
commissioner or any person authorized by him shall...furnish non-identifiable
statistical information in tabular or machine readable format for research
activities if satisfied that the same is required for a proper purpose..." Since
a local registrar is "a person authorized by the commissioner", it would appear
that disclosures made by a registrar would be subject to the standard imposed
by the cited provision.

It is also noted that §4163 of the Public Health Law provides that:
"Any person who shall release information which might disclose the identity
of the woman in connection with a certificate of fetal death or report of fetal
death in violation of the provisions of this article shall be subject to a civil
penalty not to exceed five thousand dollars for each such release." As such,
there is a statutory prohibition against disclosure not only of an item that
would disclose the identity of the mother, but of information that might
divulge her identity.

Lastly, since you attached an advisory opinion prepared by this office
in 1986, I point out that the provisions within §4174 of the Public Health
Law quoted above were enacted after the issuance of that opinon.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Clerk, Village of Southampton