NY.gov Portal State Agency Listing

 

December 14, 1998

Mr. John J. Sheehan
Adjusters, Inc.
P.O. Box 604
Binghamton, NY 13902

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. Sheehan:

I have received your letter of November 9 and the materials attached to it.

You wrote that a particular individual filed a complaint against a restaurant, and that
you represent the restaurant's insurance carrier. Having requested records relating to a
complaint of food poisoning, the Broome County Department of Health withheld the name
of the complainant. You were informed that you could obtain records including the name
only with a "medical authorization" given by the complainant. You have contended that no
medical treatment was rendered by the Department and that its records contained no medical
information.

In this regard, it appears that the denial of access to the name was appropriate. As
you are aware, the Freedom of Information Law 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.

Relevant to the matter is §87(2)(b), which permits an agency to withhold records to
the extent that disclosure would constitute "an unwarranted invasion of personal privacy."
In turn, §89(2)(b) includes examples of unwarranted invasions of privacy, the first two of
which make reference to medical information. Most pertinent in my view is a decision
rendered by the State's highest court, Hanig v. Department of Motor Vehicles [79 NY2d 106
(1992)], in which it was found that records containing details in the nature of medical
information could be withheld, even if they were not prepared by a health care provider or
involved treatment. The records that you attached, although they do not involve treatment,
indicate an individual's symptoms, infections and the like. From my perspective, those details
coupled with a name would, if disclosed, result in an unwarranted invasion of privacy.

You suggested that if authorization is needed in this instance, the same would logically
be required in relation to the disclosure of accident reports. The difference, in my view, is
that accidents reports have long been accessible under §66-a of the Public Officers Law.
Under that statute, the contents of accident reports are accessible, except to the extent that
disclosure would interfere with a criminal investigation.

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

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Joseph Peckham