May 2, 2016
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, except as otherwise indicated.
I have received documentation concerning your request for records relating to shooting deaths from the Office of the Monroe County Medical Examiner.
The focus of the ensuing comments involves a form used by the Office of the Medical Examiner that includes a variety of entries. The “Report of Investigation” identifies the deceased by name, date of birth, age, gender, race, residence, telephone number, marital status, social security number, and the name of his or her primary physician. The form also contains details regarding the activities of government employees that investigated and reported the death, as well as the location of an incident associated with the death, and the circumstances and cause of the death. Additional items involve details relating to the next of kin and identification of the deceased.
The grounds for denial of access by the County are §87(2)(a) of the Freedom of Information Law (FOIL) pertaining to records that “are specifically exempted from disclosure” by statute coupled with §677(3)(b) of the County Law, and §87(2)(b) of FOIL concerning unwarranted invasions of personal privacy.
In this regard, first, it is questionable in my view whether the form at issue falls within the coverage of §677 of the County Law. 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."
The form contains basic, minimal information relating to the death. There is no entry on the form that would reflect the “testimony of witnesses examined by” the Medical Examiner, and there are no expansive technical details, such as those contained in an autopsy report. Significantly, the “Report of Investigation” appears to be separate and distinct from the “report of any examination” that is referenced in subdivision (1) of §677. If that is so, the Report of Investigation would not be subject to §677 of the County Law, but rather FOIL. Even if §677 is applicable, 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 opinion, 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 does its language specify that disclosures to others is prohibited. In short, while the 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. Further, 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.
From my perspective, it is clear that §677, when applicable, is intended to protect privacy. If, however, identifying details are redacted, and if the public interest in the disclosure of data relating to shootings deaths is recognized, there may be no overwhelming reason for withholding the remaining portions of the form.
Assuming that §677 does not apply and that FOIL is the governing statute, as you are aware, FOIL requires that all agency records be made available, except those records “or portions thereof” that fall within the scope of the exceptions of rights of access appearing in §87(2). As indicated in the response to your appeal, §87(2)(b) authorizes an agency to withhold portions of the record at issue which if disclosed would constitute “an unwarranted invasion of personal privacy”. Insofar as an entry on the form could result in the identification of a deceased or any person associated with the deceased, I believe that any said entry may be redacted or deleted.
If the form is completed and stored electronically, and if the entries in boxes in the form are segregable, §89(3)(a) of FOIL directs that:
“When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it should be required to do so”.
If disclosure cannot be accomplished electronically, but the forms can be generated entirely in printed form or if they are not maintained electronically, it is assumed that they would be maintained on paper. In either instance, a stencil could easily be developed with “windows” that permit photocopying of portions of the form deemed available, while shielding remaining portions which if disclosed would result in an unwarranted invasion of personal privacy. That kind of solution was implemented prior to the era in which information stored electronically could be generated and disclosed in a manner consistent with law. I note that in cases in which redactions or deletions are made from paper records, an agency may assess a fee of twenty-five cents per photocopy.
It is suggested that you might request reconsideration of the denial of your request. In an effort to encourage disclosure in the public interest, a copy of this opinion will be sent to Monroe County. I hope that I have been of assistance.
Robert J. Freeman Executive Director
Cc: Records Appeals Officer, Monroe County