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January 11, 1999

 

Mr. Serafin Quinones
97-A-3936
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929

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. Quinones:

I have received your letter of December 15. You have sought guidance concerning
your ability to obtain your mental health records from two hospitals where you were treated.

In this regard, while the statute within the Committee's advisory jurisdiction, the
Freedom of Information Law, pertains generally to government records in New York, a
different provision of law, §33.16 of the Mental Hygiene Law, deals specifically with the
records in question.

As I understand §33.16 of the Mental Hygiene Law, it provides rights of access to
clinical mental health records, with certain exceptions, to "qualified persons," and paragraph
7 of subdivision (a) of that section defines that phrase to include "any properly identified
patient or client." It appears that you are a "qualified person" and that you may assert rights
of access under that statute.

I note that §33.16(b) states in relevant part that a facility must respond to a request
within ten days, and subdivision (d) of §33.13 pertains to the right to appeal a denial of access
and states that:

"(d) Clinical records access review committees. The
commissioner of mental health the commissioner of mental
retardation and developmental disabilities and the
commissioner of alcoholism and substance abuse services shall
appoint clinical record access review committees to hear
appeals of the denial of access to patient or client records as
provided in paragraph four of subdivision (c) of this section.
Members of such committee shall be appointed by the
respective commissioners. Such clinical record access review
committees shall consist of no less than three nor more than
five persons. The commissioners shall promulgate rules and
regulations necessary to effectuate the provisions of this
subdivision."

If you do not receive a satisfactory response to your request, it is suggested you
request the rules and regulations from the appropriate commissioner in order to ensure that
you are following the correct procedure and that you can properly assert your rights.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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