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May 4, 2000

FOIL-AO-12088

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 Ms. Connett:

I have received your letter of March 21 and the correspondence attached to it.

You indicated that you submitted a request under the Freedom of Information Law to
the NYS Department of Health for "cancer incidence and mortality data for St. Lawrence
County" by zip code, "age groups", and the kinds of cancer for every year in which the
Department maintains the data. The Department denied the request, citing §87(2)(a) of the
Freedom of Information Law "because release of such information is specifically exempted
from disclosure by state statute", that statute being §2402 of the Public Health Law. Section
2402 states that:

"The reports of cancer cases made pursuant to the provisions of
this article shall not be divulged or made public so as to
disclose the identity of any person to whom they relate, by any
person, except in so far as may be authorized by sanitary code."

The Department's records access officer wrote that "[d]etailed tabulations of site specific
cancers by zip code in a rural county can potentially identify individuals." In your letter to
me, you expressed a willingness "to allow the DOH to aggregate cancer data from three (3)
zip coded communities that are adjacent to one another."

If indeed the records that you requested include personally identifiable information, I
would agree that they would be exempted from disclosure. Nevertheless, based on a judicial
decision involving a similar request, it would be unlikely in my view that a court would
determine that the information sought may justifiably be withheld.

In New York Times Company v. New York State Department of Health, 674 NYS2d
826, 243 AD2d 157 (1998), the issue involved a request for health care data and the ability to
withhold certain items on the ground that disclosure would constitute "an unwarranted
invasion of personal privacy" pursuant to §87(2)(b) of the Freedom of Information Law.
Stated differently, to the extent that the data would be personally identifiable to patients, the
Department would have the ability to deny access. Pursuant to its regulations, the
Department granted access to a variety of items, but withheld data pertaining to treating
physicians, hospitals and insurers. Following the initiation of a proceeding challenging the
denial of access to those items, the Department agreed to release the names of hospitals and
insurers. Nevertheless, it continued to withhold the names of physicians. The Supreme
Court in its review of the denial "expressly rejected [the Department's] argument that the
disclosure of:

"...physician identifiers, even when such information was used
in combination with other disclosable data, would lead to the
identification of patients and, hence, would constitute an
unwarranted invasion of personal privacy" (id., 828).

The Appellate Division later unanimously affirmed the applicant's right to the
physician identifiers. In this regard, in brief, 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. That being so, the Court determined that:

"It is well settled that all records of a public agency are
presumptively available for public inspection and copying,
unless the documents in question fall within one of the
enumerated exemptions set forth in Public Officers Law §
87(2) (see, Matter of Capital Newspapers Div. of Hearst Corp.
v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d
665). To that end, ‘FOIL is to be liberally construed and its
exemptions narrowly interpreted so that the public is granted
maximum access to the records of government' (Matter of
Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69
N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932). In this
regard, the agency seeking to prevent disclosure bears the
burden of demonstrating that the requested material falls
squarely within the particular exemption claimed ‘by
articulating a particularized and specific justification for
denying access' (Matter of Capital Newspapers Div. of Hearst
Corp. v. Burns, supra, at 566, 505 N.Y.S.2d 576, 496 N.E.2d
665; see, Matter of Ruberti, Girvin & Ferlazzo v. New York
State Div. of State Police, 218 A.D.2d 494, 496-497, 641
N.Y.S.2d 411; Matter of Legal Aid Socy. of Northeastern N.Y.
v. New York State Dept. of Social Servs., 195 A.D.2d 150, 153,
605 N.Y.S.2d 785). This respondent has failed to do."

In finding that the Department could not demonstrate that disclosure would enable the
public to identify patients, the Court stated that the Department:

"...would have the court believe...that...providing the identity of
the patient's physician is the one additional factor that ‘could
readily permit a third party to deduce logically the identity of a
given patient, resulting in a breach of medical confidentiality'.
In our view, such speculation falls far short of ‘articulating a
particularized and specific justification for denying access'"
(id.).

The Court emphasized that other data is routinely disclosed including:

"...the patient's gender, race and ethnicity; the month and year
of the patient's admission, the month and year of the patient's
discharge; the patient's length of stay; the patient's number of
preoperative days; the patient's number of postoperative days;
the class of payor; the census tract location of the patient; the
age of the patient or one-year intervals for patients one year old
or older; the age of the patient at one-week intervals for
patients less than one year old; the physician specialty; the
number of attending physicians; the presence or absence of an
accident; and the facility reimbursement peer group..." (id.).

Since the Court determined in New York Times that the items enumerated, including
the names of physicians and zip code of residence would not, if disclosed, constitute an
unwarranted invasion of personal privacy because that combination of data did not consist of
personally identifiable information, I do not believe that the data you seek could, under the
terms of §2402 of the Public Health Law, "disclose the identity of any person."

If my conclusion is accurate, the data must be made available.

Lastly, if the Department has the ability to aggregate data involving three adjacent zip
codes and that arrangement is acceptable to you, a disclosure of that nature would further
diminish the likelihood that any person could be identified.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
cc: John Signor
Gene D. Therriault