December 19, 1995



Mr. Martin Hodge
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, NY 12589

Dear Mr. Hodge:

I have received your letter addressed to Mr. William Bookman, Chairman of the Committee. The staff of the Committee is authorized to respond on behalf of its members. Your letter consists of an "appeal" following a denial of a request for copies of autopsy and related reports by the Office of the Chief Medical Examiner in New York City.

In this regard, the Committee on Open Government is empowered to provide advice concerning the Freedom of Information Law. The Committee does not have the authority to determine appeals or compel an agency to grant or deny access to records. The provision pertaining to the right to appeal a denial of access, §89(4)(a) of the Freedom of Information Law, states in relevant part that:

"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

In this instance, the person designated to determine appeals is Sarah Scott, General Counsel and Appeals Officer, Office of the Chief Medical Examiner, 520 First Avenue, New York, NY 10016.

With respect to rights of access, 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 §87(2)(a) through (i) of the Law.

Relevant to the matter is the initial ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." In this regard, it has been held that §557(g) of the New York City Charter has the effect of a statute and that it exempts records from the Freedom of Information Law [see Mullady v. Bogard, 583 NYS 2d 744 (1992); Mitchell v. Borakove, Supreme Court, New York County, NYLJ, September 16, 1994]. I note that in Mitchell, the court found that autopsy reports and related records maintained by the Medical Examiner were subject to neither the Freedom of Information Law nor §677 of the County Law. The County Law does not apply to New York City. However, the court found that the applicant was "not making his request merely as a public citizen" under the Freedom of Information Law, "But, rather, as someone involved in a criminal action that may be affected by the content of these records and thereby has a substantial interest in them." On the basis of Mitchell, it would appear that your ability to gain access to the records in question would be dependent upon your capacity to demonstrate that you have a substantial interest in the records in accordance with §557(g) of the New York City Charter.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Ellen Borakove
Sarah Scott