March 5, 2014
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.
This is in response to yours of February 3, 2014, in which you request our assistance gaining access to an autopsy report of a man who committed suicide in 1999. The New York City Office of Chief Medical Examiner has denied access to the report on the ground that disclosure would constitute an unwarranted invasion of personal privacy. It is our opinion that this is a reasonable response to your request.
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 (l) of the Law.
Section 87(2)(b), on which the Office relied to deny access, authorizes an agency to withhold records insofar as disclosure would result in "an unwarranted invasion of personal privacy." Additionally, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy.
The Court of Appeals, the state’s highest court, dealt with issues involving the privacy of the deceased and their surviving family members in New York Times Company v. City of New York Fire Department (4 NY3d 477 ). The records in question involved 911 tape recordings of persons who died during the attack on the World Trade Center on September 11, 2001, and the decision states that:
“Almost everyone, surely, wants to keep from public view some aspects not only of his or her own life, but of the lives of loved ones who have died. It is normal to be appalled if intimate moments in the life of one’s deceased child, wife, husband or other close relative become publicly known, and an object of idle curiosity or a source of titillation. The desire to preserve the dignity of human existence even when life has passed is the sort of interest to which legal protection is given under the name of privacy. We thus hold that surviving relatives have an interest protected by FOIL in keeping private affairs of the dead (cf. Nat’l Archives and Records Admin. v. Favish, 541 US 157 )" (4 NY3d at 305).
Based on the foregoing, it is clear that there may be an interest in protecting privacy in consideration of the deceased, including his family members and loved ones. As we view the direction offered by the Court of Appeals, the extent to which the contents of records are indeed intimate and personal is the key factor in ascertaining whether disclosure would result in an unwarranted invasion of personal privacy. While the fact of a death is itself not intimate, to the extent that the records include information that "would ordinarily and reasonably be regarded as intimate, private information", it has been held that disclosure would constitute an unwarranted invasion of personal privacy (see Hanig v. Department of Motor Vehicles, 79 NY2d 106, 112 ).
Here, particularly in the event of a suicide, disclosure, in our opinion, would constitute an unwarranted invasion of personal privacy. Although we respect your assurances, an applicant’s promise to keep records respectfully and ethically does not obviate an agency’s responsibility or authority to protect against an unwarranted invasion of personal privacy.
Finally, in most instances, the fact of a death is not a secret and the identity of a deceased is made known to the public; what may be withheld from the public are the details associated with the death, i.e., the contents of an autopsy report. That being so, in ordinary circumstances, the deletion of the name of the deceased would not serve to protect privacy.
We hope that this is helpful.
Camille S. Jobin-Davis