The GRC recently determined, for the first time, that autopsy reports are not covered by OPRA’s exemption for criminal investigatory records. Schultz v. State Police (2014-390).

In Schultz, the GRC noted that its prior decisions held that autopsy reports are exempt criminal investigatory records. The GRC reversed its position because, it said, it was not previously aware of N.J.S.A. 52:17B-88, which requires that the findings and conclusions of an autopsy be filed in the offices of the State Medical Examiner, the county medical examiner and the county prosecutor. According to the GRC, this statutory provision means that autopsy reports do not meet OPRA’s definition of a criminal investigatory record, which applies only to records not required by law to be made, maintained or kept on file.

The GRC emphasized that it was not holding that autopsy reports must be disclosed in their entirety, as other exemptions may apply to information contained within a specific report. In addition, photos and videos from an autopsy continue to be exempt, as stated in OPRA, N.J.S.A. 47:1A-1.1

The Schultz case involved a closed criminal investigation. It doesn’t offer specific guidance on how to deal with a request for an autopsy report while the investigation is ongoing.

It’s worth noting that there is some ambiguity in exactly what N.J.S.A. 52:17B-88 means with regard to public access to autopsy reports. In addition to the language the GRC relied on, this statute also says, in an amendment added in 1989, that a copy of the report must be released to the closest surviving relative of the decedent within 90 days of receipt of a request. The legislative history of the amendment states that this provision was needed because nothing in the law at the time enabled the decedent’s family to obtain the report.

This statement suggests that the Legislature believed that the Right to Know Law–which applied at that time– did not make autopsy reports publicly accessible, despite the statutory requirement that the report be filed with certain offices. Because the legal standards of the Right to Know Law govern the interpretation of OPRA’s criminal investigatory exemption (see this Appellate Division opinion), it is not clear that N.J.S.A. 52:17B-88 is intended to mandate the disclosure of autopsy reports to anyone filing a public records request. The statute could be understood as requiring release only to the decedent’s close relatives, and applying the criminal investigatory record exemption to any other requestor.

This argument apparently was not presented to the GRC. It will be interesting to see if the GRC or a court is asked to address this issue in a future case.