Major Steve Dozier Interim Director Arkansas State Police 1 State Police Plaza Drive Little Rock, AR 72209
Dear Director Dozier:
I am writing in response to your request for my opinion on the following question:
On behalf of the Arkansas State Police, I request an Attorney General's opinion to determine if an autopsy report should be disclosed when an investigation reaches the point that it becomes subject to disclosure under the Arkansas Freedom of Information Act.
The specific question relates to whether an autopsy report is considered a medical record that should not be disclosed with other investigative reports because the autopsy report could be considered to fall within the medical records exemption since it is generated by the Medical Examiner's Office.
RESPONSE
In my opinion an autopsy report does not qualify as a medical record exempt from disclosure under the Arkansas Freedom of Information Act ("FOIA"), A.C.A. §§ 25-19-101 to -107. However, it may be exempt from disclosure pursuant to A.C.A. § 12-12-312(a)(1).
As you acknowledge in your request, the contents of law enforcement investigatory files are generally not exempt from disclosure once the investigation has been completed. See A.C.A. § 25-19-105(b)(6); Martinv. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990); Ark. Ops. Att'y Gen. Nos. 99-110 and 98-127. However, particular documents and information contained in such files may fall under a separate exemption. Medical records are expressly exempted from disclosure under A.C.A. §25-19-105(b)(2). Although the term "medical records" is not defined in the FOIA, my predecessors and I have consistently interpreted the term as denoting "records containing information relating to the treatment or diagnosis of a medical condition." See, e.g., Ark. Ops. Att'y Gen. Nos.2000-306; 99-110; 98-202; 89-147.
In my opinion, conducting an autopsy in connection with a criminal investigation does not qualify as "treatment or diagnosis of a medical condition." Consequently, I do not believe the FOIA's medical-records exemption applies to autopsy reports. However, as discussed in the enclosed Ark. Op. Att'y Gen. No. 87-353, disclosure of autopsy reports is generally prohibited pursuant to the following statute:
The records, files, and information kept, obtained, or retained by the State Crime Laboratory under the provisions of this subchapter shall be privileged and confidential. They shall be released only under and by the direction of a court of competent jurisdiction or the prosecuting attorney having criminal jurisdiction over the case. Provided, that nothing in this section shall be construed to diminish the right of a defendant or his attorney to full access to all records pertaining to the case, and provided further, that the State Crime Laboratory shall disclose to a defendant or his attorney all evidence in the defendant's case.
A.C.A. § 12-12-312(a)(1). I fully agree with my predecessor's conclusion that this statute "mandat[es] that the record of an autopsy performed by the State Medical Examiner not be released unless authorized by a Court of competent jurisdiction or by the prosecuting attorney who has criminal jurisdiction over the case."
However, as this office has repeatedly opined, this statutory proscription will apply only so long as the report is in the possession of the State Crime Laboratory and has not been released. See Ark. Ops. Att'y Gen. Nos. 99-110; 97-294; 87-353. In my opinion, records "kept, obtained, or retained by the State Crime Laboratory" include the copies filed pursuant to statute "with the law enforcement agencies, coroner, and prosecuting attorney of the jurisdiction in which the death occurred." A.C.A. § 12-12-312(a)(2). Accordingly, I believe these recipient agencies are likewise prohibited from releasing an autopsy report unless authorized to do so by a court of competent jurisdiction or the prosecuting attorney having criminal jurisdiction over the case.
Assistant Attorney General Jack Druff prepared the foregoing, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:JD/cyh
Enclosure