Mitchell v. Borakove ( 1996 )

Petitioner seeks disclosure of certain documents, worksheets and audiotape allegedly created in connection with the autopsy of Charles Freeman, Jr., whom petitioner was convicted of murdering in 1975.

Under the Freedom of Information Law (FOIL), records which must otherwise be made available to applicants need not be if they are specifically exempted from disclosure by State or Federal statute (Public Officers Law § 87 [2] [a]). Here such exemption exists with regard to the subject records under New York City Charter § 557 (g), which provides that the Chief Medical Examiner "shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality. Such records shall not be open to public inspection.” (See, Matter of Assakaf v Arden, 210 AD2d 325.)

While the IAS Court, in reversing itself and ultimately granting the petition, relied upon the Court of Appeals decision in Matter of Diaz v Lukash (82 NY2d 211), that decision is not here apposite since the petitioner in that case was proceeding under section 677 (3) (b) of the County Law, which, under County Law § 2, has no application to New York City, whose counties are wholly contained within a city (see, Matter of Scott v Chief Med. Examiner of City of N. Y., 179 AD2d 443). Indeed, the exemption of the City from County Law § 677 manifests the Legislature’s intention to defer to the City Charter’s regulation of such records within its jurisdictional bounds. Concur— Sullivan, J. P., Ellerin, Ross and Mazzarelli, JJ.