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August 1, 1997

Mr. Benjamin Caro
94-A-5351
Mid State Correctional Facility
P.O. Box 2500
Marcy, NY 13403

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Caro:

As you are aware, I have received your letter of June 30. You
have sought assistance in obtaining your medical records from St.
Luke's Memorial Hospital Center in Utica, which you characterized
as a "public hospital."

In this regard, if the facility is a governmental entity, its
records would be subject to the Freedom of Information Law. I
would conjecture, however, that in consideration of its name, the
facility is not governmental.

Assuming that the Freedom of Information applies, in in terms
of rights granted by that statute, it 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.

With regard to medical records, the Freedom of Information
Law, in my view, likely permits that some of those records may be
withheld in whole or in part, depending upon their contents. For
instance, medical records prepared by Hospital personnel could be
characterized as "intra-agency materials" that fall within the
scope of §87(2)(g) of the Freedom of Information Law. To the
extent that such materials consist of advice, opinion,
recommendation and the like, I believe that the Freedom of
Information Law would permit a denial.

Nevertheless, a different statute, §18 of the Public Health
Law, generally grants rights of access to medical records to the
subjects of the records. As such, that statute may provide greater
access to medical records than the Freedom of Information Law. It
is suggested that you send your request to the hospital and make
specific reference to §18 of the Public Health Law when seeking
medical records.

To obtain additional information concerning access to medical
records and the fees that may be charged for searching and copying
those records, you may write to:

Access to Patient Information Program
New York State Department of Health
Hedley Park Place
Suite 303
433 River Street
Troy, NY 12180

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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