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December 28, 1999

FOIL-AO-11866

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

Dear

As you are aware, I have received your letter of November 10 in which you sought an
advisory opinion concerning the Freedom of Information Law. On behalf your client, the
Rockland County Department of Mental Health, which is licensed pursuant to Article 28 of
the Public Health Law, you have asked whether a "root cause analysis" involving an "adverse
sentinel event" must be disclosed.

By way of background, you wrote that:

"...an adverse sentinel event is an unexpected occurrence,
involving death or serious physical or psychological injury, or
the risk thereof.

The event is termed ‘sentinel' because it issues a warning that
requires immediate attention. In a health care facility, like the
County's Department of Mental Health, such events do occur
and mandate inquiry into how and why the event occurred in
order to prevent the same type or similar event from occurring
in the future.

When a sentinel event does occur, the Rockland County
Department of Mental Health engages in a ‘root cause
analysis'. This is a process by which the causal factor(s) of the
event are identified.

This analysis focuses primarily on systems and processes.
Further, the analysis identifies changes that could be made
which would improve the level of performance and reduce the
risk of a particular serious adverse event occurring in the
future.

It should be noted that the root cause analysis of the sentinel
event is reduced to a writing including recommended changes
in the design or development of new systems and/or processes.
This occurs in the ordinary course of business operations."

In response to the foregoing, I offer the following comments.

As a general matter, 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.

If my understanding of the matter is accurate, relevant to an analysis of rights of
access is §87(2)(a), which pertains to records that "are specifically exempted from disclosure
by state or federal statute." In this regard, §2805-j of the Public Health Law states in part
that:

"1. Every hospital shall maintain a coordinated program for
the identification and prevention of medical, dental and
podiatric malpractice. Such program shall include at least the
following:

(a) The establishment of a quality assurance committee with
the responsibility to review the services rendered in the hospital
in order to improve the quality of medical, dental and podiatric
care of patients and to prevent medical, dental and podiatric
malpractice. Such committee shall oversee and coordinate the
medical, dental and podiatric malpractice prevention program
and shall insure that information gathered pursuant to the
program is utilized to review procedures. At least one member
of the committee shall be a member of the governing board of
the hospital who is not otherwise affiliated with the hospital in
an employment or contractual capacity."

Other provisions of §2805-j involve the development of procedures concerning competence,
the periodic review of credentials, and the collection of information concerning a hospital's
experience with "negative health care outcomes and incidents injurious to patients." Section
2805-k involves investigations undertaken by hospitals prior to the granting or renewal of
professional privileges. Section 2805-l requires that hospitals report certain kinds of
"incidents" to the Health Department, and that investigations be performed and reported to
the Department concerning those incidents.

Perhaps most important in terms of your inquiry is §2805-m, which states in part that:

"1. The information required to be collected and maintained
pursuant to sections twenty-eight hundred five-j and twenty-
eight hundred five-k of this article, reports required to be
submitted pursuant to section twenty-eight hundred five-l of
this article and any incident reporting requirements imposed
upon diagnostic and treatment centers pursuant to the
provisions of this chapter shall be kept confidential and shall
not be released except to the department or pursuant to
subdivision four of section twenty-eight hundred five-k of this
article.

2. Notwithstanding any other provisions of law, none of the
records, documentation or committee actions or records
required pursuant to sections twenty-eight hundred five-j and
twenty-eight hundred five-k of this article, the reports required
pursuant to section twenty-eight hundred five-l of this article
nor any incident reporting requirements imposed upon
diagnostic and treatment centers pursuant to the provisions of
this chapter shall be subject to disclosure under article six of
the public officers law or article thirty-one of the civil practice
law and rules, except as hereinafter provided or as provided by
any other provision of law."

Article six of the Public Officers Law is the Freedom of Information Law. Therefore, when
records involve quality assurance pursuant to §§2805-j, k or l of the Public Health Law, they
must be kept confidential, notwithstanding the provisions of the Freedom of Information
Law.

If the provisions cited above are inapplicable, in addition to the authority to withhold
personally identifying details concerning patients as "an unwarranted invasion of personal
privacy" pursuant to §§87(2)(b) and 89(2)(b) of the Freedom of Information Law, §87(2)(g)
would also be pertinent. That provision permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting
of statistical or factual information, instructions to staff that affect the public, final agency
policy or determinations or external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld.

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

Sincerely,

Robert J. Freeman
Executive Director

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