A. Autopsy and coroners reports
Most autopsies in Alabama are performed by the State Department of Forensic Sciences, and records of those autopsies are expressly public by statute. Ala. Code § 36-18-2 (2001) ("The director [of the Department of Forensic Sciences] shall keep photographed or microphotographed reproductions of original reports of all investigations that he conducts in his office. Reproductions of such materials shall be public records and shall be open to public inspection at all reasonable times."). County coroners may also require autopsies to be performed, pursuant to their duty to hold inquests under Alabama Code § 11-5-4 (1998). See also Ala. Code § 15-4-2 (1995) (examination of body and report by coroner; autopsy).
Since a county coroner is a public officer, see Ala. Code § 36-12-1 (2001), records of the county coroner's autopsies are public records subject to disclosure under the Public Records Law, unless there is a pending criminal investigation and the disclosure of their information will compromise the investigation. Op. Att'y Gen. Ala. No. 2007-015, 2006 Ala. AG LEXIS 142 (Dec. 4, 2006).
In Alabama, a coroner is an elected county official, see Ala. Code §§ 11-5-1 et seq. (1989), whose records should be presumptively open under the Public Records Law, with the possible exception for records that relate to a pending criminal investigation. See Stone v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981); see also Op. Att'y Gen. Ala. No. 2007-015, 2006 Ala. AG LEXIS 142 (Dec. 4, 2006) (stating that reports prepared by coroners are subject to inspection under the Public Records Law).
AS 12.65.020 provides that the state medical examiner may perform a post-mortem examination, including an autopsy, necessary to make a proper determination of the cause of death and to complete the death certificate, when a death occurs in any of a variety of enumerated circumstances, or when the medical examiner feels the circumstances warrant investigation. The medical examiner must prepare a report of findings and conclusions to the coroner, to assist in determining whether to order an inquest. The medical examiner's investigative report is privileged and confidential, and not subject to disclosure pursuant to AS 40.25.
The coroner, upon receiving the report of a medical examiner, can either order an inquest, or enter an order dispensing with an inquest and record the death certificate. When it appears, from whatever source, that a death was by suicide or resulted from criminal conduct, the coroner must conduct an inquest by jury (unless a grand jury is looking into the death). The coroner's jury, after a hearing, must give a written verdict, signed and setting out the name of the deceased, when, where and by what means the deceased died, and, if the person died as a result of criminal conduct, who the jury believes is guilty. AS 09.55.062-.069. The statute does not address whether the coroner's inquest is confidential or public, so presumably it is public pursuant to AS 40.25.110 -.125.
Autopsy reports are not “vital records” that are confidential under A.R.S. § 36-342. See A.R.S. § 36-301(33) (defining vital records as either “a registered birth certificate or a registered death certificate”). A.R.S. § 11-597 does not prohibit disclosure of autopsy reports, but it only expressly provides for disclosure to county attorneys. In contrast, A.R.S. § 23-1072(A) expressly provides that the pathologist’s findings become part of the public record when the Industrial Commission of Arizona orders the performance of the autopsy.
In Parks, the court held that “autopsy reports are public records under A.R.S. §§ 11-594 and -597” and that the Pima County Forensic Center could not hold up disclosure pending notification of relatives unless it can point to “specific risks with respect to a specific disclosure.” 178 Ariz. at 605, 875 P.2d at 838. Although autopsy reports, autopsy photographs, and investigative materials are public records, a court must conduct an in camera review to balance competing interests before permitting the release of any documents because they “inherently raise significant privacy concerns.” Schoeneweis v. Hamner, 223 Ariz. 169, 173,175-76, 221 P.3d 48, 52, 54-55 (Ct. App. 2009).
Autopsy reports prepared by the State Medical Examiner are not considered medical records; however, these records are confidential under Ark. Code Ann. § 12-12-312(a) so long as they remain in the possession of the state crime lab. Once they leave the custody of the crime lab, however, the reports are subject to the FOIA unless another exemption, such as the act’s law enforcement exemption, Ark. Code Ann. § 25-19-105(b)(6), is applicable. See Ark. Op. Att’y Gen. Nos. 2001-100, 99-110, 97-294, 87-353. If the autopsy report is prepared by someone other than the State Medical Examiner, the crime lab confidentiality statute would not apply. Ark. Op. Att’y Gen. Nos. 97-294 (autopsy report that was never in possession of crime lab is subject to disclosure), 87-135 (autopsy report of coroner qualified to conduct post mortem tests is available under FOIA unless otherwise exempted).
Records gathered and created during the course of a coroner’s investigation are exempt until the coroner’s final report is issued. However, medical information remains exempt, except as quoted in the final report. Ark. Code Ann. § 14-15-304.
Public, unless compiled by law enforcement, for law enforcement purposes, and the prospect of law enforcement is concrete and definite. Compare San Francisco Examiner v. Plummer, 19 Med. L. Rptr. 1319 (1991) (in a decision not certified for publication, a superior court judge held that a county sheriff's department was required to release autopsy records of victims of the Nimitz Freeway collapse during the 1989 San Francisco earthquake) with Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1276, 88 Cal. Rptr.3d 847 (2009) (holding that an autopsy report produced by a coroner’s inquiries into a suspected homicide where there exists the definite prospect of law enforcement is an investigatory file compiled for law enforcement purposes within the meaning of Cal. Gov’t Code § 6254(f). Dixon, where the court said the report may be withheld under the investigatory records exemption of the CPRA, is arguably wrongly decided. The court’s decision turned on its determination that a coroner performing duties pursuant to an inquest into a criminally-related death is a law enforcement agency within the meaning of the investigatory records exemption of Section 6254(f). Dixon, 170 Cal. App. 4th 1271 at 1277. In so concluding, however, the court failed to cite or recognize the express provision directly governing a coroner’s inquest, including those involving investigations into the cause of death in criminally-related cases, which requires a coroner’s inquest be open to the public. Cal. Gov’t Code § 27491.6. Moreover, the court arguably applied an overbroad interpretation of the investigatory records exemption by holding that the duties of a corner pursuant to an inquest under Government Code Section 27491 are performed “as a law enforcement agency” within the meaning of the investigatory records exemption of Section 6254(f) without any determination of whether the coroner is charged with the enforcement of criminal laws, as opposed to the enforcement of other laws, such as the issuance of subpoenas on witnesses or a summons of jury called to inquire as to the cause of death. See, e.g., Cal. Gov’t Code §§ 27492, 27499.
Moreover, earlier courts, before the adoption of the CPRA, had held that autopsy reports are public records. See People v. Williams, 174 Cal. App. 2d 364, 390, 345 P.2d 47 (1959)("An autopsy report is a record that the coroner is required to keep (Gov. Code § 27491) and is therefore, a public record (citations omitted)."); Walker v. Superior Court, 155 Cal. App. 2d 134, 138-39, 317 P.2d 130 (1957); see generally Cal. Gov't Code § 27491 (setting forth duties of coroners); Cal. Gov't Code § 27491.6 (requiring inquests performed by coroner be open to the public). The Legislature was no doubt aware of these decisions when it enacted the CPRA, and could have expressly exempted coroners' reports from public disclosure, but did not do so.
Coroners' autopsy reports are specifically excluded from the general medical records exemption under § 24-72-204(3)(a)(I). The Colorado Supreme Court has held that this section shows the clear intent of the legislature to classify autopsy reports as public records open to inspection. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). If it is found in an inquest into the death of a person that a crime has been committed on the deceased, and the report names the person who the jury believes committed the crime, the inquest is not to be made public until after the suspect has been arrested. Colo. Rev. Stat. § 30-10-613.
Autopsy reports are not criminal justice records. An autopsy report on a homicide victim may be withheld from public inspection by its custodian only under the procedure in the Open Records Act for denying access based on "substantial injury to the public interest." Freedom Newspapers Inc. v. Bowerman, 739 P.2d 881 (Colo. App. 1987); Bodelson v. Denver Post Corp., 5 P.3d 373 (Colo. App. 2000) (unique public grieving in the immediate aftermath of the Columbine High School massacre justifies non-disclosure of victims' autopsies).
Autopsy reports are exempt from the Act as investigatory files and are afforded protection under Delaware's Health Record Privacy Statute. 29 Del. C. §§ 10002(g)(3), 1000(2)(g)(1) and 16 Del. C. § 1230.
The common law right of privacy does not survive the death of the holder. Lawson v. Meconi, 2005 WL 1323123 (Del. Ch. May 27, 2005). Autopsy reports are occasionally treated as exempt under open records exemption four relating to investigations. Coroner reports will likely be treated similarly.
District of Columbia
Under D.C. laws governing the medical examiner, any person with a "legitimate interest" may gain access to autopsy reports. D.C. Code Ann. § 5-1412(c). This right can be enforced by court order. Id. Although the government may attempt to protect autopsy reports by asserting the privacy, investigatory records or Vital Records Act exemptions, those exemptions do not permit nondisclosure if the Medical Examiner's statute requires disclosure. D.C. Code Ann. § 2-534(c); Dunhill v. Director, 416 A.2d 244, 247-48 (D.C. 1980).
Generally, autopsy reports made by a district examiner are subject to Chapter 119 (Public Records Law). See Op. Att’y Gen. Fla. 78-23 (1978) (autopsy reports made by a district medical examiner pursuant to Fla. Stat. § 406 (1991) are public records and should be held open to inspection by the public); Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991) (still photographs and videotapes taken by the police of an autopsy are public records). But see Palm Beach Newspapers v. Telizzese, 6 Fla. Supp. 2d 8 (Fla. 15th Cir. 1984) (no compelling reason to continue to withhold an autopsy report from the public where release of the report no longer posed a threat to a continuing investigation, and section 406.17 operated to repeal a special law which created an exception to the public records law in providing that records prepared by the Palm Beach County medical examiner were confidential). Cf. Yeste v. Miami Herald Publ’g Co., 451 So. 2d 491 (Fla. 3d DCA 1984) (section 382.008(6) makes the medical certification of the cause of death in death certificate when no autopsy was performed by a medical examiner confidential by implication and therefore exempt from public inspection and copying pursuant to section 119.07(3)(a)).
However, in 2001, the state legislature exempted from the disclosure requirements of section 119.07(1) and article I, section 24(a) of the Florida Constitution, photographs, video, or audio recordings of an autopsy in the possession of a medical examiner or any person assisting the medical examiner who may have possession of the photograph, video, or audio recording. See Fla. Stat. § 406.135(2); H.B. No. 1083, 2001 Fla. Laws Ch. 2001-1. The surviving spouse or, if no surviving spouse, the surviving parent(s), or if no surviving spouse or parent, an adult child may access the autopsy records, and a court may grant any person access to such materials upon a showing of good cause. Id. The Florida Seventh Circuit Court applied the exemption in Earnhardt v. Volusia County, No. 2001-30373-CICI, (Fla. 7th Cir. 2001), to withhold from the media and interested individuals access to autopsy photographs of famed race car driver Dale Earnhardt. On appeal, the court held that the exemption was not unconstitutionally overbroad. Campus Commc’ns, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2002).
The Act does not exempt autopsy or coroners’ reports. See Kilgore v. R. W. Page Corp., 259 Ga. 556, 385 S.E.2d 406 (1989) (Act applies to the office of coroner). However, the code otherwise specifically forbids the release of any autopsy photographs or images by hospitals without written permission of the next of kin. O.C.G.A. § 45-16-27(d). But in closed criminal investigations a superior court may find that the public interest in disclosure outweighs any privacy interest asserted by the deceased’s next of kin and permit such photographs to be disclosed. Id.
Autopsy reports prepared by the Medical Examiner are public records. Honolulu Corp. Counsel Op. No. 61-25; see also Public Access to Ambulance Report Form Concerning a Deceased Individual, OIP Op. Ltr. No. 91-33 (Dec. 31, 1991) (stating that privacy interest applies only to living individuals and allowing access); Toxicology Reports, OIP Op. Ltr. No. F15-01 (Sept. 15, 2014) (finding that toxicology reports of deceased motorists were required to be disclosed upon request, in part because they are incorporated into autopsy reports). But see Welfare Records of Deceased Individual, OIP Op. Ltr. No. 90-26 (July 19, 1990) (holding that death does not extinguish confidentiality and limited disclosure pursuant to Haw. Rev. Stat. § 346-10 of welfare records); Disclosure of Autopsy Reports, OIP Op. Ltr. No. 91-32 (Dec. 31, 1991) (withholding access pending completion of law enforcement investigation).
Autopsy reports are not specifically exempted under the public records act. Generally, most county coroners treat them as available to the public. However, at least one law enforcement agency has taken the position that an autopsy record is a police investigatory record not available for public inspection.
Open if in connection with a coroner proceeding, but might be closed in connection with a pending criminal investigation under 5 ILCS 140/7(1)(d)(i); see Public Access Opinion 10-003 (available at http://foia.ilattorneygeneral.net/pdf/opinions/2010/2010-003.pdf [https://perma.cc/N8LP-QTXA]). Post-mortem photographs may be exempt if release of those photographs would raise privacy concerns. An autopsy of a private citizen done by a public hospital would probably be exempt from disclosure under the personal privacy exemption or the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). See 5 ILCS 140/7(1)(c); 5 ILCS 140/7(1)(a); see also Trent v. Coroner of Peoria County, 349 Ill. App. 3d 276, 812 N.E.2d 21, 285 Ill. Dec. 432 (3d Dist. 2004).
In 2001, a mandatory exception was added to bar disclosure of “a photograph, a video recording, or an audio recording of an autopsy, except as provided in [Ind. Code §] 36-2-14-10.” Ind. Code § 5-14-3-4(a)(11). The same law also amended Indiana Code Section 36-2-14-10 to declare autopsy photographs, video recordings, or audio recordings confidential for the purposes of § 5-14-3-4(a)(1), except in certain instances involving a surviving spouse, a government agent acting in an official capacity, or a coroner using the materials for training or educational purposes. Ind. Code § 36-2-14-10(b)–(e); see also Ind. P.L. 271-2001, §§ 1, 3, 4 (enumerating permitted and prohibited disclosures of autopsy records under Ind. Code §§ 5-14-3-4(a)(1), 16-39-7.1 and 36-2-14-10). The identifying information must also be removed from the disclosed material. . Ind. Code § 36-2-14-10(b)–(e). “Identifying information” includes the deceased person’s name, address, Social Security number, a full view of the face, or identifying marks on the body that are unrelated to the medical condition or medical status. Ind. Code § 36-2-14-10(e)(1)-(5).
Notwithstanding these exceptions, and also notwithstanding the investigative records exception Section 5-14-3-4(b)(1), Indiana Code Section 36-2-14-18 requires that coroners must make certain information available, effectively mooting Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446–47 (Ind. App. 1993), and Heltzel v. Thomas, 516 N.E.2d 103, 105–06 (Ind. App. 1987), which both held that the coroner’s office is a law enforcement agency, and the respective coroners did not act arbitrarily or capriciously in refusing to disclose autopsy reports.
A state medical examiner is created by Iowa Code § 691.5. A county medical examiner is created by Iowa Code § 331.801. Neither chapter 691 nor chapter 331 includes a provision governing accessibility to the examiner's report.
Iowa Code § 331.802 requires a county medical examiner to prepare a record of findings for submission to the state medical examiner and the county attorney. If the decedent is a child under the age of two, a copy of the findings is available to the child's parent, guardian or custodian, upon request.
Iowa Code § 691.6 requires the state medical examiner to keep complete records, but is silent as to the confidentiality of those records.
The reports generated by state medical examiners are probably subject to the provisions of chapter 22 governing availability of investigative reports. However, reports generated by county medical examiners are public records. Op. Att’y Gen., 1972 WL 262460 (Oct. 20, 1972) (noting a medical examiner’s report required by § 331.802 is not a confidential public record and may be examined by any citizen of Iowa); Op. Att’y Gen, 1961 WL 110128 (Oct. 27, 1961) (noting reports and records compiled and filed by the county medical examiner are public records which can be lawfully revealed to any interested party).
Coroner’s records are subject to disclosure under KORA. Burroughs v. Thomas, 937 P.2d 12 (Ct. App. Kan. 1997).
Autopsy reports are open for public inspection unless they have been filed with the clerk of the district court and designated as a criminal investigation record. Kan. Att’y Gen. Op. 1986-05.
Autopsy and coroner's reports are generally available under the Open Records Act. In limited circumstances when premature release would impair an ongoing law enforcement action, such records may be withheld. See Ky. Rev. Stat. 61.878(1)(h). Autopsy photographs and similar materials may also be withheld, in certain circumstances, under the personal privacy exemption, Ky. Rev. Stat. 61.878(1)(a), based on the privacy interests of surviving family members. See 17-ORD-009; 05-ORD-075 ("proof that the subject of the autopsy photographs had no living close relatives, that his or her relatives had consented to disclosure of the photographs, or that his or her relatives had otherwise evinced a waiver of their privacy interests" would "almost certainly warrant a contrary holding").
La. Rev. Stat. Ann. § 13:5713 specifically identifies autopsy reports as public records, and further provides that "[t]he public records fee for . . . an autopsy report shall be the same as that charged by the registrar of vital records for the state for a death certificate." See also Everett v. Southern Transplant Service Inc., 709 So. 2d 764 (La. 1998) (reversing a Fourth Circuit decision holding that coroners' reports were not public records under the previous statute). Autopsy photos, video and visual images, however, are not public records. La. Rev. Stat. Ann. § 44:19(B). The Attorney General previously rendered an opinion that the autopsy record of a child is not public record if the child is under seven, or the child's death is connected with a criminal investigation. Op. Att'y Gen. 94-19. But the First Circuit has since ruled that autopsy reports of children under seven years are not exempt from disclosure unless the child died an "unexpected death" as defined by La. Rev. Stat. Ann. § 40:2019(B)(3): "a death which is a result of undiagnosed disease, or trauma in which the surrounding circumstances are suspicious, obscure, or otherwise unexplained," or SIDS. Bozeman v. Mack, 744 So. 2d 34 (La. App. 1st Cir. 1998) (holding that the autopsy report of a minor killed in a car accident was a public record because the circumstances of her death were not suspicious, obscure, or otherwise unexplained).
Coroners reports are public record even in cases involving commission of a crime. State v. Arnold, 466 So. 2d 520 (La. App. 3rd Cir. 1985), writ denied, 470 So. 2d 124 (La. 1985); State v. Williams, 438 So. 2d 1212 (La. App. 3rd Cir. 1983), writ denied, 443 So. 2d 590 (La. 1983); Op. Att'y Gen. 89-604. The Louisiana Supreme Court has reversed a Fourth Circuit decision which had held that coroner's reports were not public records. Everett v. Southern Transplant Service Inc., 709 So. 2d 764 (La. 1998). The records do not become public, however, until after the notification of the next of kin and upon final autopsy and investigation. See La. Rev. Stat. Ann. § 33:1563(K)(2)-(3); see also Op. Att'y Gen. 94-271. The “criminal investigation” exemption may apply. Op. Att’y Gen. 17-43.
Courts have treated autopsy reports as medical records exempt from disclosure pursuant to exemption (c). LeBlanc v. Commonwealth, 457 Mass. 94, 96-97, 927 N.E.2d 1017, 1019 (2010); Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135-36, 533 N.E.2d 1356 (1989); Boston Firefighters Union, IAFF, Local 718 v. WHDH TV, Channel 7, No. A.C.2007-J-455 (Mass. App. Ct. Oct. 5, 2007) (Single justice; vacating prior restraint against media disclosure of autopsy report despite non-public record status under Public Records Law). By statute, the office of the chief medical examiner may not even choose to provide reports unless surviving spouse or next of kin makes the request in a written affidavit and, if the case is one of unnatural or suspicious death and the district attorney is directing and controlling the investigation of the death, the district attorney provides written permission.
Inquests may exclude members of the public, aside from any person who has been identified by the attorney general or district attorney “as the target of an investigation in connection with the death of the deceased,” along with that person’s counsel, witnesses, to the extent they are permitted, and the parents, guardian, or next of kin of the person whose death is the subject of the inquest G.L. c. 38, § 8.
However, inquest reports “become presumptively public once a prosecutor ‘files a certificate asserting that the case will not be presented to a grand jury, or files notice that a grand jury has returned an indictment or a no bill.’” Bos. Globe Media Partners, LLC v. Chief Justice of Trial Court, 483 Mass. 80, 92, 130 N.E.3d 742, 756 (2019) (quoting In re Globe Newspaper Co., 461 Mass. at 118, 958 N.E.2d 822). Massachusetts’ highest court has recognized that “inquests always involve a matter of intense public interest: ‘a person has been killed in circumstances sufficiently suspicious as to warrant the Attorney General or a district attorney to require the death be investigated by a judge in an evidentiary hearing.’” Id. (quoting In re Globe Newspaper Co., 461 Mass. at 122, 958 N.E.2d 822).
Although the Act does not specifically address autopsies or coroners reports, it does provide that certain “medical examiner data” be classified as public. Minn. Stat. § 13.83, subd. 2. This data includes "cause of death; causes of cause of death; whether an autopsy was performed and if so, whether it was conclusive; date and place of injury, if applicable, including work place; how injury occurred; whether death was caused by accident, suicide, homicide, or was of undetermined cause." Other data, including data that are part of the medical examiner's investigation, are private or confidential. Minn. Stat. § 13.83, subd. 4. However, subdivision 7 allows "any person" to petition the district court to authorize disclosure of otherwise non-public or confidential data under § 13.83. The court may order disclosure if it determines that such disclosure "would be in the public interest." Minn. Stat. § 13.83, subd. 7.
Coroners are required to prepare and file reports of autopsies performed on bodies where death by criminal action is suspected. Mo.Rev.Stat. § 58.451. Similarly, medical examiners are required to prepare and file reports of autopsies. Mo.Rev.Stat. §§ 58.720-.740. Whether records pertaining to autopsies performed by other licensed physicians or surgeons with consent, Mo.Rev.Stat. § 194.115, are public records depends on whether those records are retained by a public governmental body.
There are no reported decisions on whether records relating to autopsies performed by coroners or medical examiners are subject to the Sunshine Law. Such records arguably fall within the exception set forth in Mo.Rev.Stat. § 610.021(5) relating to “nonjudicial . . . physical health proceedings involving identifiable persons.” Such autopsy reports are not closed in Chapter 58, Mo.Rev.Stat. (“Coroners and Inquests”). However, coroners are required to prepare and file reports of autopsies performed on bodies where death by criminal action is suspected. Mo.Rev.Stat. § 58.451. Similarly, medical examiners are required to prepare and file reports of autopsies. Mo.Rev.Stat. § 58.720-.740.
No specific exception. Autopsy reports may not be public if the autopsy is performed as part of a law enforcement investigation. No statute directly addresses access to coroner’s reports. Some counties have taken the position that such reports are not public under the medical records exception and investigation exception.
The Nevada Supreme Court has held that autopsy reports are not categorically exempt from disclosure under the NPRA, although certain "private medical or health-related information" may be redacted, pursuant to a two-part balancing test set forth in Cameranesi v. U.S. Dep't of Defense, 856 F.3d 626, 637 (9th Cir. 2017), for “determin[ing] if a government entity should redact information in a public records request.” Clark Cty. Office of Coroner/Med. Exam'r v. Las Vegas Review-Journal, 136 Nev. Adv. Op. 5, 458 P.3d 1048, 1057, 1059 (2020); see also Las Vegas Review-Journal v. Eighth Judicial Dist. Court (Hartfield), 134 Nev. 40, 40–41, 412 P.3d 23, 24 (Nev. 2018) (vacating prior restraint order order that enjoined press from reporting on redacted autopsy report already in public domain).
Generally, cause-of-death information is confidential. See N.J.A.C. 8:2A-1.2. Pursuant to N.J.S.A. 47:1A-1.1 any copy, reproduction or facsimile of any photograph, negative or print, including instant photograph and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner is specifically exempted from the definition of government record. New Jersey courts have permitted public access to autopsy reports and cause-of-death information on death certificates in limited circumstances under the common law. See Shuttleworth v. City of Camden, 258 N.J. Super. 573, 610 A.2d 985 (App. Div. 1992): Home News v. New Jersey Dept. of Health, 144 N.J. 446, 677 A.2d 195 (1996).
The Office of the Medical Investigator should make autopsy reports available to "anyone demonstrating a tangible and direct interest." NMSA 1978 § 24-14-28(A) (1987); see generally NMSA 1978 § 24-14-20 (2009), (Death registrations). There is no reported decision as to what constitutes a "tangible and direct interest."
Coroners Reports. Generally are not available. According to NMSA 1978 § 24-14-28(A), the state registrar shall provide copies to anyone "with a direct and tangible interest." Under New Mexico Law, the coroner means the district medical investigator. NMSA 1978 § 24-11-4. Death certificates are addressed under NMSA, 1978 § 24-11-6. See also NMSA 1978 § 24-14-20.
Huston v. Turkel, 236 A.D.2d 283, 653 N.Y.S.2d 584 (1st Dep’t 1997) (autopsy reports are exempt from disclosure pursuant to New York City Charter § 557(g)), appeal denied, 90 N.Y.2d 809, 686 N.E.2d 1365 (1997); Spencer v. New York State Police, 187 A.D.2d 919, 591 N.Y.S.2d 207 (3d Dep’t. 1992) (portions of police files regarding autopsies performed on murder victims exempt from disclosure); Lyon v. Dunne, 180 A.D.2d 922, 580 N.Y.S.2d 803, (3d Dep’t 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (denying access to autopsy reports under Cty. Law § 677). See also Scott v. Chief Medical Examiner, 179 A.D.2d 443, 577 N.Y.S.2d 861 (1st Dep’t 1992), cert. denied, 113 U.S. 259, 121 L.E.2d 190 (Cty. Law § 677 regarding autopsy report does not apply to New York Cty., which is wholly contained within a city); Herald Co. v. Murray, 136 A.D.2d 954, 524 N.Y.S.2d 949 (4th Dep’t 1988) (denying access to autopsy reports under County Law § 677); Mullady v. Bogard, 153 Misc. 2d 1018, 583 N.Y.S.2d 744 (Sup. Ct., 1992) (denying access to autopsy reports of the Chief Medical Examiner of the City of New York as exempt pursuant to New York City Charter § 557(g)); Matter of Mitchell, N.Y.L.J. September 16, 1994 (Sup. Ct., New York Cty., 1994) (denying access under FOIL to audiotape and autopsy worksheets pursuant to § 557(g) of the New York City Charter). But see Matter of Pennington v. Clark, 16 A.D.3d 1049, 791 N.Y.S.2d 774 (4th Dep’t 2005) (“Although autopsy photographs are generally exempt from disclosure under County Law § 677 (3) (b), a court may order that the photographs be made available for inspection to a person ‘having a substantial interest’ in a criminal action related to the contents of the record or investigation.”), appeal denied, 5N.Y.3D 712, 840 N.E.2D 131 (2005).
Herald Co. v. Murray, 136 A.D.2d 954, 524 N.Y.S.2d 949 (4th Dep’t 1988) (denying access to autopsy report based upon County Law § 677 applicable to both autopsy reports and coroners’ records); New York Pub. Health Law § 4174(1)(a) (McKinney 1985 & Supp. 1996) (requiring issuance of death certificate or transcript only in certain enumerated situations and only when required for a proper purpose).
Reports of autopsies performed at the request of the medical examiner or other designated public officials are open pursuant to the Public records law and pursuant to North Carolina G. S. § 130a-389. Photographs and recordings (video and audio) created in connection with such autopsies are subject to review and inspection, but copies may be obtained only by district attorneys, law enforcement officials and superior court judges. G.S. § 130a-389.1. See also, G.S. § 132-1.8. Reports of private autopsies performed at the request of a family member are not public.
The office of coroner has been abolished in more than one-third of North Carolina’s counties. In those counties which retain the office, the coroner is required to file his reports of inquests and investigations with the county medical examiner and the district attorney. G.S. § 152-7. Subject to certain limitations on copies of photographs and recordings, records created by medical examiners are public records; therefore coroner’s reports are also public records.
An autopsy report and any working papers and notes relating to an autopsy report are confidential and may be disclosed only as permitted. See N.D.C.C. § 23-01-05.5. The report of death is a public record. N.D.C.C. § 23-01-05.5.
A report of death, an autopsy report, and any working papers, notes, images, pictures, photographs, or recordings of the medical county coroner in any form are confidential. N.D.C.C. § 11-19-11.
Portions of autopsy reports may be exempt as confidential law enforcement investigatory records during a criminal investigation; “Once the criminal investigation ends, CLEIR contained in autopsy reports may assume the status of public records and become available to the public.” State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 2017-Ohio-8988, ¶ 56, reconsideration denied sub nom. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 2018-Ohio-1600, ¶ 56, and reconsideration denied sub nom. State ex rel. GateHouse Media Ohio Holdings II, Inc. v. Pike Cty. Coroner's Office, 2018-Ohio-1600, ¶ 56.
Coroner reports of suicides are public records. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St. 3d 580, 669 N.E.2d 835 (1996).
A copy of the full and complete autopsy report, together with the findings of the person making the report, shall be withheld from public inspection and copying for ten business days following the date the report is generated by the Office of the Chief Medical Examiner. 63 O.S. § 945.D. The release of the autopsy report may be further delayed if al law enforcement agency declares that the report contains information that would materially compromise an ongoing criminal investigation. 63 O.S. § 945.G. Following the filing of the declaration, the law enforcement agency must file a request for an extension of time with a district court for hearing. Id.
At the same time the autopsy report is completed, the medical examiner must also provide a summary report of the investigation. 63 O.S. § 945.E. The summary report is a public record. Id.
ORS 192.345(36) (formerly ORS 192.501(36)) conditionally exempts from disclosure “a medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.” These are open to family members or a personal representative of the deceased or to any person who may be criminally or civilly liable for the death; see ORS 146.035(S) (regarding death records). In addition, deadly weapon and injury reports made under ORS 146.750 are confidential under ORS 146.780.
Though, “certain records of a coroner, such as autopsy reports, are exempt under Section 708(b)(20) of the RTKL, these records are available pursuant to the Coroner's Act, 16 P.S. §§ 1231-1253.” See In re Miller v. Lancaster Cty., 2018 WL 1542110 (Pa. Off. Open Rec. 2018) (citing 65 P.S. § 67.3101.1: “If the provisions of this act regarding access to records conflict with any other . . . state law, the provisions of this act shall not apply.”). Section 1251 of the Coroner's Act states that “[e]very coroner, within thirty (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein.” 16 P.S. § 1251. The Pennsylvania Supreme Court has found that records pertaining “to a duty of a coroner in his or her official capacity,” including autopsy reports, are “official records and papers” of a coroner that are required to be deposited with the county prothonotary. See Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632, 636 (Pa. 2009) (“It is clear . . . that conducting autopsies is one of the official duties of a coroner. It follows logically that a coroner's resulting autopsy reports constitute ‘official records and papers' within the meaning of Section 1251.”).
This was reaffirmed by the Office of Open Records in holding that the Coroner’s Act requires broad disclosure of all applicable records such as autopsy, toxicology, inquisition, and coroner's reports. See In re Say v. Lehigh Cty., 2019 WL 1619865 (Pa.Off.Open Rec. 2019).
No specific exemption; however, presumably closed because of R.I. Gen. Laws §§ 23-3-1 and 23-3-23, which, when read in conjunction provides that it shall be unlawful for any person to permit inspection of or disclose information in records concerning “death” and “data related thereto” unless authorized. R.I. Gen. Laws §§ 23-3-1 and 23-3-23.
As a consequence of the death of stock car racer Dale Earnhardt, legislation was adopted to preclude access to autopsy photographs and similar materials. S.C. Code Ann. §§ 17-5-535 and 30-4-40(a)(18). The Sumter County Coroner denied a request by The Item newspaper for access to an autopsy report on grounds that it was a medical record and restricted by HIPAA, neither position seems to be supported by anything other than the imagination of the Coroner. The Coroner’s denial resulted in litigation which was appealed to the South Carolina Supreme Court who held that autopsy reports are medical records and thus exempted from the definition of a public record under SC FOIA. Perry v. Bullock, 409 S.C. 137, 761 S.E.2d 251 (S.C. 2014). (If a record does not fit the otherwise broadly worded definition of “public record” under SC FOIA, it will not be subject to disclosure pursuant to a lawful request.)
Arguably these are open once arrest is made following inquest. SDCL §23-14-12. Although coroners must file reports and inquest verdicts with bureau of criminal statistics, in the bureau’s hands, those records are not public. SDCL §§23-6-14 and 23-6-17. See also SDCL §1-27-1.5 (4). Autopsy performed by order of department of labor in worker’s compensation occupational disease death claim case is public record. SDCL § 2-8-41. University of South Dakota medical school must keep record of bodies received. SDCL §34-26-9. Physician or coroner fetal death report filed with department of health. SDCL §34-25-32.2.
Coroner’s report should be open when in coroner’s possession. In hands of law enforcement could be exempt. SDCL §1-27-1.5(5). When report is “return[ed] to circuit court” it would be covered by Unified Judicial System rules and not open records law. SDCL §§23-14-16 and 1-27-1.12.
Autopsy reports are subject to required public disclosure unless one of the Act’s exceptions applies. Tex. Att'y Gen. ORD-7790 (2004). However, the release of a “provisional autopsy report” prepared in connection with a request by a justice of the peace is not required to be released but may be made available for inspection by the public. Tex. Atty. Gen. Op. JC-0422 (2001).
Copies of all autopsy reports, findings, and records gathered or compiled in the investigation of a death may be obtained by the decedent’s next-of-kin, legal representative, or physicians who attended the decedent during the year before death upon written request for release of such documents by the medical examiner. In addition, the county attorney, the district attorney, the attorney general, or other law enforcement officials having jurisdiction may, upon written request, secure copies of the original records where necessary for the performance of their duties. Otherwise, the medical examiner shall maintain the confidentiality of the records. See Utah Code § 26-4-17.
1. Medical examiner records are confidential and may be released to such authorized persons as the county attorney, the attorney general, the decedent’s next of kin, a legal representative, physicians, etc. See Utah Code § 26-4-17.
2. Medical examiners’ reports are admissible as evidence at civil trials. See id. § 26-4-18. To the extent that a report is used at trial, that report is generally open to the public.
Records compiled in conjunction with autopsies performed by or at the direction of the Chief Medical Examiner are not considered public records pursuant to 1 V.S.A. § 317. 18 V.S.A. § 5205(g). Autopsies remain confidential and beyond the scope of public records requests even if those reports are provided to the Department of Corrections or the Domestic Violence Fatality Review Commission. 18 V.S.A. § 5205(g); 15 V.S.A. § 1140(d).
Va. Code Ann. § 32.1-285 requires filing of all autopsy reports with the Chief Medical Examiner, with copies to the judge or Commonwealth's Attorney requesting the report. The Chief Medical Examiner may release such reports to the appropriate Commonwealths' Attorney or law enforcement agency investigating the death. Confidential records and information obtained from private and public entities and provided to the Office of the Chief Medical Examiner during the course of a death investigation shall remain confidential and shall not be subject to the provisions of the Act. Va. Code Ann. § 32.1-283.4(A).
Autopsy reports are confidential under RCW 68.50.105.
Coroner records that identify the deceased may be withheld for 48 hours or until the next of kin is notified, although the official may exercise discretion to release the records earlier to aid in identifying the deceased. RCW 68.50.300.
It could be argued that autopsy reports and records of the state medical examiner could fall within the "personal information" exemption of the FOIA, and thus be subject to the Cline balancing test. See 51 W. Va. Op. Atty. Gen. 606 (W. Va. A.G.), 1965 WL 92501 (Attorney General Opinion suggests appropriateness of balancing test). Based upon other decisions, it is possible that the Supreme Court of Appeals might recognize some degree of privacy protection even for records of deceased persons. See Jeffery v. McHugh, 166 W. Va. 379, 273 S.E.2d 837 (1980) (upholding the confidentiality of juvenile court records, specifically exempt from disclosure under W. Va. Code § 49-7-1, even though the juvenile involved had died). However, the fact that autopsy reports would not directly affect the privacy rights of any living person undoubtedly would be important in the Cline balancing process. Child Protection Group v Cline, 350 S.E.2d at 545 (1986). Autopsy and other records of the medical examiner should be disclosed to the family representative of a deceased person as a matter of right under FOIA.
Note that there is a specific statute mandating disclosure of autopsy reports made by the state medical examiner to persons to whom the cause of death is "a material issue." West Virginia Code § 61-12-10 requires that "[a] full record and report of the findings developed by the autopsy shall be filed with the office of medical examinations," and requires that office to keep "full, complete, and properly indexed records of all deaths investigated, containing all relevant information concerning the death, and the autopsy report if such be made. . . . Copies of such records or information shall be furnished, upon request, to any party [in court proceedings] to whom the cause of death is a material issue." Moreover, “any prosecuting attorney or law-enforcement officer may secure copies of these records or information necessary for the performance of his or her official duties.”
While West Virginia Code § 61-12-10 suggests limited availability of autopsy records it does not explicitly exempt such records from public scrutiny. It is likely that courts would view autopsy and related records as subject to FOIA disclosure but would analyze each FOIA request to determine the extent to which disclosure might be limited by West Virginia Code § 29B-1-4(2) (“Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy . . .”). As noted above, where such information is of such a personal nature, disclosure depends on a balancing test that weighs privacy and public interests. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541(1986).
Medical examiners’ reports would most likely be treated the same as autopsy reports, i.e., they may fall within the "personal information" exemption of the FOIA and thus be subject to the Cline balancing test, with some degree of privacy protection for the records of deceased persons. See Jeffery v. McHugh, 166 W. Va. 379, 273 S.E.2d 837 (1980) (upholding the confidentiality of juvenile court records, which were specifically exempt from disclosure under West Virginia Code § 49-7-1, even though the juvenile involved had died).
The Fatality and Mortality Review Team oversees and coordinates the examination, review and assessment of deaths resulting from drug overdoses or possible domestic violence, as well as the deaths of minor children and infants and mothers “who die during pregnancy, at the time of birth or within one year of the birth of a child.” W. Va. Code § 61-12A-1. “Proceedings, records and opinions of the Fatality and Mortality Review Team and the advisory panels established by the team are exempt from disclosure under the Freedom of Information Act[.]” Id.