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FOIL-AO-13746

December 2, 2002

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 in which you asked about the availability of a psychologist's report
written during your stay in a "mental ward [run by the] New York City Department of Corrections."
You also questioned the availability of your DNA records.

In this regard, I offer the following comments.

Although the Freedom of Information Law provides broad rights of access, 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 is §33.13 of the Mental Hygiene Law, which generally requires
that clinical records pertaining to persons receiving treatment in a mental hygiene facility be kept
confidential.

However, §33.16 of the Mental Hygiene Law pertains specifically to access to mental health
records by the subjects of the records. Under that statute, a patient may direct a request for
inspection or copies of his or her mental health records to the "facility", as that term is defined in the Mental Hygiene Law, which maintains the records. If the New York City Department of
Correctional Services maintains the records as a facility, I believe that it would be required to
disclose the records to you to the extent required by §33.16 of the Mental Hygiene Law.
Alternatively, it is possible that the records in question were transferred when you were placed in a state correctional facility. If that is so, the records may be maintained by a different agency. It is
my understanding that mental health "satellite units" that operate within state correctional facilities
are such "facilities" and are operated by the New York State Office of Mental Health. Further, I
have been advised that requests by inmates for records of such "satellite units" pertaining to
themselves may be directed to the Director of Sentenced Services, Bureau of Forensic Services,
Office of Mental Health, 44 Holland Avenue, Albany, NY 12229. Lastly, it is noted that under
§33.16, there are certain limitations on rights of access.

With regard to records of DNA testing, by way of background, Executive Law §995-c(3)
states that, subsequent to conviction and sentencing for certain felonies, a designated offender "shall be required to provide a sample of blood for DNA testing to determine identification characteristics specific to such person and to be included in a state DNA identification index pursuant to this article." Accordingly, Executive Law, §995-d, provides:

"1. All records, findings, reports, and results of DNA testing
performed on any person shall be confidential and may not be
disclosed or redisclosed without the consent of the subject of such
DNA testing. Such records, finding, reports and results shall not be
released to insurance companies, employers, or potential employers,
health providers, employment screening or personnel companies,
agencies, or services, private investigation services, and may not be
disclosed in response to a subpoena or other compulsory legal process
or warrant, or upon request or order of any agency, authority,
division, office, corporation, partnership, or any other private or
public entity or person, except that nothing contained herein shall
prohibit disclosure in response to a subpoena issued on behalf of the
subject of such DNA record or on behalf of a party in a civil
proceeding where the subject of such DNA record has put such record
in issue.

"2. Notwithstanding the provisions of subdivision one of this section,
records, findings, reports, and results of DNA testing, other than a
DNA record maintained in the state DNA identification index, may
be disclosed in a criminal proceeding to the court, the prosecution,
and the defense pursuant to a written request on a form prescribed by
the commissioner of the division of criminal justice services.
Notwithstanding the provisions of subdivision one of this section, a
DNA record maintained in the state DNA identification index may be
disclosed pursuant to section nine hundred ninety-five-c of this
article."

Based on the foregoing, it appears that the records of your interest may be disclosed only to
the extent authorized in subdivision (2) of §995-d.

I hope that I have been of assistance.

Sincerely,

David Treacy
Assistant Director

DT:tt