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October 12, 2000

FOIL-AO-12338

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

I have received your letter of August 15 and apologize for the delay in response. As I
understand the matter, you have sought confirmation concerning your right to obtain records
pursuant to §373-a of the Social Services Law in conjunction with the Freedom of Information Law.

In this regard, first, while the Freedom of Information Law includes a broad statement of
intent relative to the public's right to gain access to government records, and while I believe that the
thrust of that statute and its judicial interpretation are instructive, §373-a of the Social Services Law
is, in my view, the governing statute in the context of your inquiry. As you are aware, records
relating to adoption are exempt from disclosure to the general public under §114 of the Domestic
Relations Law; medical records are exempt from public disclosure under various provisions of the
Public Health Law (see e.g., §§18 and 2803-c); records relating to foster care and "abandoned,
delinquent, destitute, neglected or dependent children" are confidential under the §372 of the Social
Services Law. In each of those instances, the records would, in my opinion, be "specifically
exempted from disclosure by...statute" pursuant to §87(2)(a) of the Freedom of Information Law
and, therefore, beyond rights of access of the general public. Any disclosures of the records subject
to those statutes would be made based only on specific exceptions that may authorize disclosure
appearing in those or other statutes. In short, the rights that you may have would, in my opinion, be
conferred by provisions other than the Freedom of Information Law.

Second, what I consider to be the pertinent language in §373-a of the Social Services Law
is as follows:

"To the extent they are available, the medical histories of a child in foster care and
of his or her natural parents shall be provided by an authorized agency to such child
when discharged to his or her own care and upon request to any adopted former
foster child; provided, however, medical histories of natural parents shall be provide
to an adoptee with information identifying such natural parents eliminated. Such
medical histories shall include all available information setting forth conditions or
diseases believed to be hereditary, any drugs or medication taken during pregnancy
by the child's natural mother and any other information, including any psychological
information in the case of a child legally freed for adoption or when such child has
been adopted..."

One of your questions in relation to the foregoing involves "what might constitute identifying
information regarding [your] biological parents." "Identifying information" is not, to my knowledge,
defined in any provision of law. However, in federal regulations dealing with unrelated records,
those pertaining to students, the phrase "personally identifiable information" is defined in part to
mean any information that would make a student's identity easily traceable." Consequently, even
if a name or an address is deleted, for example, insofar as other details or characteristics in a records
would, if disclosed, make a person's identity easily traceable, those details may be withheld. From
my perspective, that kind of standard serves as an appropriate guide in determining the extent to
which information within a record should be disclosed or withheld.

Lastly, with respect to your apparent contention that you may enjoy rights of access to "all
records", except to the extent they contain identifying details, it is questionable whether your rights
are as broad as you suggest. Section 373-a of the Social Services Law is entitled "Medical histories"
and appears to provide rights of access, with conditions, only to medical histories; it does not appear
to apply to records other than medical histories. With respect to those other records, I would
conjecture that many would be exempted from disclosure by statute. If that is so, according to the
state's highest court, they may be withheld in their entirety; an agency would not be obliged to
disclose after having deleted identifying details [Short v. Board of Managers of Nassau County
Medical Center, 57 NY2d 399 (1982)] On the other hand, insofar as the records are not exempted
from disclosure by statute, I believe that the Freedom of Information Law would apply. In that
event, an agency would be required to review the contents of the records to determine which
portions, if any, may justifiably be withheld.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
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