November 25, 2002
I appreciate having received your determination of an appeal relating to a request by the
CSEA under the Freedom of Information Law. The request involved "a report of the Joint
Commission on Accreditation of Hospital Organizations" (JCAHO), and based on the advice of the
County Attorney and this office, you sustained the denial of access.
In this regard, Michael Ortiz, an attorney for CSEA contacted me, and I indicated that I
recalled a federal statute that specified that JCAHO reports are confidential. When he asked for
additional detail concerning the basis for claiming confidentiality, I contacted the JCAHO to seek
guidance. Enclosed is a copy of a response sent to me by JCAHO's Director of State Relations. In
brief, he indicated that "[t]he confidentiality of a JCAHO report...depends on state law and the
purpose for which the report was received", and that hospitals in New York "have consented to have
JCAHO send the official accreditation report directly to the NYS Department of Health." He noted
that JCAHO and the State Department of Health have signed a memorandum of understanding
stating that "all JCAHO reports received by the department will be subject to public disclosure, i.e.
should they be requested, they will be released to the requestor pursuant to FOIL."
Reference was also made to the situation in which JCAHO records may be confidential, and
it was stated that: "[i]f the state licensing agency obtained a JCAHO survey report during its role in
conducting a validation survey on behalf of the federal Centers for Medicare and Medicaid Services
(CMS), the JCAHO report cannot be redisclosed except by CMS, an only then as part of an official
action against the organization."
Based on my conversation with Mr. Ortiz, the record sought is unrelated to the kind of report
that is deemed confidential. If that is so, it appears that it should be accessible.
I hope that the foregoing serves to clarify the matter and that I have been of assistance.
Robert J. Freeman
cc: Michael Ortiz