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December 7, 2000

FOIL-AO-12402

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, unless otherwise indicated.

Dear

I have received your letter of October 26 in which you sought an advisory opinion concerning
the propriety of a denial of your request for certain data by the NYS Department of Health. As
required by §89(4)(a) of the Freedom of Information Law, the Department has forwarded its
determination of your appeal to this office.

Your request involves the New York State Cancer Registry records of cancer site specific
diagnoses and deaths from the period 1976-1997 for St. Lawrence County. You added in your
request that:

"If, due to confidentiality concerns, it is necessary to blank out names
and addresses, please leave the zip code unblanked out. In cases
where two or less cancer site specific records exist for a year and zip
code, you may decline to release such records."

Your request was denied based on statutes that exempt records from disclosure, as well as provisions
in the Freedom of Information Law, §§87(2)(b) and 89(2)(b), that authorize agencies to withhold
records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy."
Further, even if names and addresses are withheld, the Department's Appeals Officer contended that
the data:

"...could be linked to other publicly available databases which could
lead to identification of an individual. Additionally, having personal
knowledge concerning individuals in a community combined with the
information you seek could lead to disclosure of specific attributes
about a cancer patient such as type of cancer, stage at diagnosis and
type of treatment."

In this regard, 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.

The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from
disclosure by state or federal statute." One such statute that was cited in response to you, §2402 of
the Public Health Law, 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."

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." Anyone anywhere could interview
persons residing in a particular locale and question them about the incidence of certain diseases. Any
such disclosures, which would not be required by law, would in my view be irrelevant to the
authority to withhold records pursuant to the provisions cited by the Department.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John F. Signor