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December 3, 1997


Mr. Brian J. Skidmore
90-T-3034
Coxsackie Correctional Facility
P.O. Box 999
Coxsackie, NY 12051-0999

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. Skidmore:

I have received your letter of October 29. You have questioned "the
legality of a recent FOIA/PA/Sec 18 P.H.L. request" that you made to the
State Department of Health for records relating to your complaint concerning
alleged misconduct on the part of a physician. The request was denied
pursuant to §230 of the Public Health Law.

From my perspective, the Department's response was consistent with
law. In this regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law is based
on presumption of access. Stated differently, all records of an agency are
available, except to the extent that records or portions therof fall within one
or more of the grouds for denial appearing in §87 (2) (a) through (i) of the
Law.

Second, under the circumstances, notwithstanding rights granted by
the Freedom of Information Law, the Personal Privacy Protection Law or §18
of the Public Health Law, I believe that the records in which you are
interested may generally be kept confidential.

Here I direct your attention to §87 (2) (a) of the Freedom of
Information Law, which states that an agency may withhold records that "are
specifically exempted from disclosure by state or federal statute." In this
regard, §230 of the Public Health Law pertains specifically to the State Board
of Professional Medical Conduct. Subdivision (6) of the cited provision
makes reference to committees that investigate, and subdivision (9) states
that:

"[N]otwithstanding any other provisions of
law, neither the proceedings nor the records of
any such committee shall be subject to
disclosure under article thirty-one of the civil
practice law and rules except as hereinafter
provided. No person in attendance at a
meeting of any such committee shall be
required to testify as to what transpired
thereat. The prohibition relating to discovery
of testimony shall not apply to the statements
made by any person in attendance at such a
meeting who is a party to an action or
proceeding the subject matter of which was
reviewed at such meeting."

Based upon the language quoted above, it appears that testimony, reports and
patient records of any committee must remain confidential, unless specific
direction is given to the contrary.

In addition, the Court of Appeals has held that records in possession
of the Board, including medical records and patient interviews, are
confidential and must be withheld under § 87 (2) (a) of the Freedom of
Information Law as well as Article 31 of the Civil Practice Law and Rules
[see John P. v. Whalen, 75 Ad 2d 1021 (1980) ; aff'd 54 NY 2d 89 (1981)].


In short, I believe that §230 of the Public Health governs access,
rather than the statutes upon which you based your request.

I hope that the foregoing serves to enhance your understanding of the
matter and that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:tt

cc: Agnes M. Larson