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March 24, 1998




Hon. George L. Cooke
Sullivan County Clerk
Sullivan County Government Center
Monticello, NY 12701

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, unless otherwise indicated.

Dear Mr. Cooke:

I have received your letter of March 18 and the news article attached
to it.

In brief, the article referred to a decision rendered by a federal judge
indicating that the Office of the Ulster County District Attorney violated an
accused burglar's civil rights by forcing a hospital to disclose psychiatric
records to the District Attorney. You have expressed concern, with other
County Clerks, that the holding "might apply to [y]our handling of pistol
permit applications."

From my perspective, the decision involving the authority of the
District Attorney is largely unrelated to the functions of County Clerks. It is
emphasized that medical and psychiatric records pertaining to patients or
clients are presumptively confidential. Several statutes in the Public Health
Law (see e.g., §§18, 2803-c, 2805-g) pertain to the confidentiality of medical
records, as does §33.13 of the Mental Hygiene Law pertaining to clinical
records identifiable to those receiving mental health treatment or care. Those
statutes prohibit the disclosure of those records by a provider of medical or
mental health services, except in certain enumerated circumstances. As I
understand the decision referenced in the article, the District Attorney
attempted to compel a hospital to disclose records that were confidential by
statute. Further, as we discussed, when a physician or other licensed mental
health professional maintains records regarding a client or patient, the records
are generally privileged; they cannot be disclosed without the consent of the
subject of the records or pursuant to a statutory exception that authorizes
disclosure.

In contrast, when a person seeks a license or permit concerning the
ability to carry, possess, repair or dispose of a firearm, the licensing agency
does not compel the disclosure of information that is confidential by statute;
on the contrary, the applicant voluntarily furnishes information in order to
gain the privilege of licensure. Moreover, the office of a county clerk does
not, in my view, maintain a relationship with applicants for licenses or
licensees that is analogous to the privileged relationship between a physician
and a patient. The fact that a license has been granted, whether it involves the
practice of law or medicine, selling real estate, teaching school or possessing
a firearm, is a matter of public record. In my view, in the context of your
duties, there is neither a promise nor an expectation of privacy.

I hope that I have been of assistance. If you would like to discuss the
matter, please feel free to contact me.

Sincerely,



Robert J. Freeman
Executive Director

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