July 11, 2007

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.


As you are aware, I have received a variety of material concerning a series of requests made pursuant to the Freedom of Information Law to the Division of State Police, all of which have been rejected in their entirety. You have sought an opinion concerning the propriety of the denials of access, and you also sought guidance concerning the ability of siblings or other relatives of a deceased to obtain an autopsy report.

By way of background, you are the brother-in-law of Andy Sperr, a state trooper who was murdered in Big Flats on March 1, 2006. Your first request to the State Police for reports relating to the incident was made on March 20, following the arrests of three suspects. On April 6, Captain Laurie M. Wagner, the Division’s records access officer, wrote that the records sought “concern an on-going investigation and a case that is pending adjudication”, and that they “were compiled for law enforcement purposes and which, if disclosed, would interfere with law enforcement investigations and/or judicial proceedings.” You appealed the denial, and on April 28, William J. Callahan, the Division’s appeals officer, sustained the denial, using, word for word, the same basis for denial as that offered by Captain Wagner.

A second request was made for the same records on September 14, four days prior to the date scheduled for the trial of the suspects. You specified that you were “renewing [your] request...since the investigation has obviously now been completed.” You also requested reports prepared by the Chemung County Sheriff’s Office that had been forwarded to the State Police. Captain Wagner denied the request, indicating that the records “were compiled for law enforcement purposes and which, if disclosed, would interfere with judicial proceedings.” The appeal was denied for the same reason.

Your third request was made on October 31 in which you referred to the previous denial based on interference with “a case pending adjudication” and pointed out that “this case was finally adjudicated on the 17th of this month when Judge Hayden sentenced the three suspects/defendants in Chemung County relating to the murder/robbery to prison...” You added that one defendant was convicted following a trial, and that the two others pled guilty two days later. Nevertheless, in a response of November 10, Captain Wagner wrote that “the case is still pending adjudication” and again, that the records “were compiled for law enforcement purposes and which, if disclosed, would interfere with judicial proceedings.” Mr. Callahan upheld the denial, using exactly the same words as Captain Wagner.

A fourth request was made on December 28 and rejected for the same reason by both Captain Wagner and Mr. Callahan.

From my perspective, which is based on the language of the Freedom of Information Law and its judicial interpretation, each denial of your requests reflected a failure to comply with law, and more records or portions of records should have been disclosed with each successive request. In this regard, I offer the following comments.

Most importantly, 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 (j) of the Law. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that certain reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception separate from that referenced in response to your requests. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

" invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of your requests, the State Police have engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate. I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by the State Police for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).

In sum, I believe that the blanket denials of your requests indicate a failure to comply with law. I note that New York City Department of Investigation was criticized in Lewis v. Giuliani (Supreme Court, New York County, NYLJ, May 1, 1997) for a denial of access also based merely on a reiteration of the statutory language of an exception, stating that "DOI may not engage in mantra-like invocation of the personal privacy exemption in an effort to 'have carte blanche to withhold any information it pleases'". In this and other responses by the State Police, the "law enforcement purposes" exception has been used in much the same manner.

In a related vein, §89(4)(a) of the Freedom of Information Law concerning appeals requires that a determination to uphold a denial of access must “fully explain in writing to the person requesting the record the reasons for further denial...” The determinations prepared by Mr. Callahan merely reiterate, verbatim, the reasons for denial offered by Captain Wagner; they clearly did not in any instance “fully explain” the reasons for further denial.

As suggested at the outset, I believe that more records or portions of records should have been disclosed with each successive request. In many instances, the ability of an agency to properly assert an exception to rights of access relates to the likelihood of harm that could arise by means of disclosure. Often an exception may be applicable, for a time, due to the effects of disclosure, but with the passage of time or occurrence of certain events, the ability to assert that exception may diminish or even disappear. In my view, that would be so in the context of your requests.

The provision to which the State Police referred in each of the denials, §87(2)(e)(i),
authorizes an agency to withhold records “compiled for law enforcement purposes” insofar as disclosure “would...interfere with law enforcement investigations or judicial proceedings...”

When the initial request was made, which was less than three weeks after the murder of Trooper Sperr, although three arrests had been made, it is possible that a law enforcement investigation was continuing and that, therefore, disclosure of some of the records sought could properly have been withheld in whole or in part. Similarly, because three persons had been arrested, it is likely some of the records could justifiably have been withheld in whole or in part because disclosure would, at that juncture, have interfered with judicial proceedings. However, it is also likely that disclosure of other records in whole or in part would have been required to comply with law. For instance, because there are no secret arrests of adults in New York, the basic booking records regarding the three persons arrested in my opinion would have been accessible.

When the second request was made, less than a week prior to the scheduled trial, it is likely, as you suggested, that the investigation had essentially ended. If that is so, no longer would disclosure have interfered with an investigation, and the aspect of §87(2)(e)(i) concerning interference with a law enforcement investigation likely would no longer have been applicable. If that was so, some of the records or portions thereof that were withheld in response to the first request should have been made available in response to the second. Because judicial proceedings were about to begin, it is possible, however, that some records or portions of records could remain deniable under the other aspect of that provision involving interference with judicial proceedings.

The ensuing requests were made after the three defendants were sentenced. Nevertheless, the State Police continued to deny access on the ground that disclosure would “interfere with judicial proceedings.” If the criminal proceedings associated with the prosecution of the defendants ended, it is difficult to envision how disclosure could at that time interfere with judicial proceedings. Insofar as disclosure would not interfere with any such proceedings, the exception upon which the State Police relied would not, in my view, be applicable or justifiable.

It is important to note that statements made and records introduced as evidence during public judicial proceedings have to been found to be accessible, even if they could ordinarily be withheld under the Freedom of Information Law [see Moore v. Santucci, 151 AD2d 677 (1986)]. In addition, copies of records filed with and available from courts would also be available from agencies [see Newsday v. Empire State Development Corporation, 98 NY2d 359, 746 NYS2d 855 (2002)].

In short, it does not appear that §87(2)(e)(i), the only exception upon which the State Police relied in response to all of your requests, could properly have been asserted following the conviction and sentencing of the defendants.

In fairness and in an effort to offer a complete and balanced opinion, it is likely that other exceptions to rights of access might continue to be pertinent. For example, during the course of an investigation, many individuals not identified during judicial proceedings or in court records might have been interviewed or questioned. In my view, portions of those records identifying those individuals might properly be deleted on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [see §87(2)(b)]. Similarly, there may be intimate personal information pertaining to family members or others relating to the defendants that might justifiably be withheld.

The other exception of potential significance, §87(2)(g), pertains communications between or among officers and employees of state and local agencies. Specifically, the cited provision permits an agency to may withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in our view be withheld.

One of the contentions offered by the New York City Police Department in Gould, supra was that certain reports could be withheld because they were not final. The Court of Appeals rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]). However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." (id., 276 (1996)].

The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182) id., 276-277).]

In addition, in a situation in which opinions and factual materials were “intertwined” within intra-agency materials, Ingram v. Axelrod, a decision cited by the Court in Gould rendered by the Appellate Division, Third Department, indicated that:

"Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 ('Chronology of Events' and 'Analysis of the Records') to be disclosable. These pages are clearly a 'collection of statements of objective information logically arranged and reflecting objective reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as 'factual data'. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that '[t]he mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion' (Matter of Polansky v Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable" [90 AD2d 568, 569 (1982)]; see also Miracle Mile Associates v. Yudelson, 68 AD2d 176, 48 NY 2d 706, motion of leave to appeal denied (1979); Xerox Corporation v. Town of Webster, 65 NY2d 131, 490 NYS2d 488 (1985)].

Based on the direction provided by the courts, even though statistical or factual information contained within a record may be “intertwined” with opinions, the statistical or factual portions would in any opinion be available under §87(2)(g)(i).

The court in Gould also referred to portions of records reflective of opinions of witnesses and others and found that they could not be withheld under §87(2)(g), because that provision pertains to an “internal government exchange” between or among government officers or employees, as opposed to opinions offered by persons not employed by government (id., 277).

Lastly, with respect to access to an autopsy report, again, if the report of your interest was submitted to the court, I believe that it would be accessible. Assuming that it was not, the report, would, in my opinion, be deniable. In denying access, the Chemung County Attorney wrote that “absent proof that either you or one of the siblings qualify as a personal representative or next of kin under the law, the Chemung County Medical Examiner cannot release the autopsy report.” Although I do not have the expertise or jurisdiction to advise that you are next of kin, assuming that you and Trooper Sperr’s siblings do not so qualify, I would agree that you do not enjoy rights of access to the autopsy report. However, based on a review of the applicable statute, I do not believe that disclosure of the report would constitute a violation of law or that there is any prohibition against disclosure.

The statute governing access is §677(3)(b) of the County Law, which pertains to autopsy reports and related records and 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, for the right to obtain such records is based solely on §677(3)(b). In my view, only a district attorney and the next of kin of the deceased have a right of access to records subject to §677; any others would be required to obtain a court order based on demonstration of substantial interest in the records to gain a right of access.

Nevertheless, a careful reading of the provision quoted above indicates that nothing in its terms prohibits a coroner, a medical examiner, a district attorney or others from disclosing the records falling within its coverage. In my experience, there have been numerous situations in which coroners and medical examiners, as well as district attorneys and police departments, have asserted their discretionary authority to disclose records falling within the scope of §677(3)(b), even though there was no obligation to do so.

In my view, a finding that records are confidential and cannot be disclosed must be consistent with the specific and unequivocal language of a statute. Section 677(3)(b) provides a right of access to certain persons, but nowhere specifies that disclosures to others is prohibited. Therefore, while the general public may have no right to autopsy reports and related records, there is nothing in the law which in my view precludes a government official or agency from disclosing those records.

In an effort to enhance compliance with and understanding of applicable law, copies of this opinion will be sent to the Division of State Police and Chemung County.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: William Callahan
Captain Laurie Wagner
Weeden A. Wetmore