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FOIL-AO-14599

April 14, 2004

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

I have received your correspondence in which you questioned the propriety of a denial of a request made pursuant to the Freedom of Information Law for certain data maintained by the State Department of Health.

In a letter addressed to you by the Department’s records access officer, reference was made to your request for "information including all payments by the New York Medicaid program to doctors, clinics hospitals and all other providers that participate in the New York Medicaid program..." He added that the request involves "computer database information with each payment on a separate line in the database", including "the type of service rendered, date rendered and the amount of the payment for that service." In denying the request, the records access officer cited §87(2)(a) of the Freedom of Information Law, which relates to records that "are specifically exempted from disclosure by state or federal statute." In turn, he referred to two statutes, 42 U.S.C. §1396a(a)(7) and §369(3) of the Social Services Law. The former states that:

"A State plan for medical assistance must -
(7) provide safeguards which restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of the plan."

The latter, which was renumbered as subdivision (4) of §369 in 1992, provides that:

"Any inconsistent provision of this chapter or other law notwithstanding, all information received by social services and public health officials and service officers concerning applicants for and recipients of medical assistance may be disclosed or used only for purposes directly connected with the administration of medical assistance for needy persons."

As you are aware, 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.

From my perspective, the issue involves the intent of the two statutes cited in the denial of your request. Both exempt records from disclosure concerning applicants for and recipients of medical assistance when the records are "directly connected with the administration of medical assistance for needy persons." If those statutes are intended to protect personal privacy by ensuring that the identities of applicants and recipients cannot become known to the public, the denial of your request would, in my view, be inconsistent with law. If, however, the intent is construe the exception to rights of access expansively to encompass virtually all information relating to the program, the denial of access would appear to be proper. Based on the practices of the Department of Health and the availability of a variety of data on its website, it appears that those statutes, as implemented by the Department, are not intended to shield information that pertains to or describes the program; rather, it appears that they are intended to protect the privacy of applicants and recipients.

Enclosed are samples of data accessible via the Department’s website. One involves the "Monthly Average Medicaid Beneficiaries by Category of Service and Aid Category", which includes the monthly average number of beneficiaries broken down by service category into numerous kinds of service, such as hospital inpatient, hospital outpatient, free standing clinic, skilled nursing facility, dental, drugs and supplies, home health services, lab and x-ray, and several others. Those figures are further broken down under two headings, medicaid and subsistence and medicaid only, and those headings are subject to additional analysis by indicating figures for TANF (temporary assistance for needy families) children, TANF adults, safety net children, safety net adults, SSI aged, and SSI blind and disabled. Another printout relates to the same service categories and how particular services are counted, i.e, as days, claims/visits, procedures, prescriptions, etc., with totals referring to the same categories of applicants or recipients as those indicated in the first sample. A third contains a variety of detailed information relating to Medicaid applicants and recipients.

Other data accessed from the Department or by use of its website could be used or cited to offer the same contention, that the prohibitions contained in both the federal and state statutes have been implemented by the Department so as to ensure the protection of personal privacy, not to shield or prohibit the disclosure of detailed information "connected with the administration of medical assistance for needy persons."

A review of those statutes suggests that the prohibition regarding disclosure is intended and has been implemented to exempt from disclosure only that information which, to use the term found in those statutes, is "directly" connected with the administration of the program and which could identify applicants or recipients. A contrary conclusion in my view would suggest that the data found on the Department’s website has been made available to the general public in a manner contrary to both federal and state law.

Assuming that the Department is not in contravention of law when it makes available the kinds of data accessible on its website, I do not believe that disclosure of the information sought would be exempt from disclosure under the statutes referenced in the letter denying access or, therefore, §87(2)(a) of the Freedom of Information Law. The data that you have requested, as I understand it, would consist of a further breakdown of data made available by the Department, and those data would not identify either applicants for or recipients of assistance under the Medicaid program.

I note that the New York Times Company several years ago made a similar request to the Department of Health for various items maintained on a database known as "SPARCS" that incorporated data submitted to the Department by hospitals, residential health care facilities and providers of ambulatory surgery. It was conceded by the Times that certain identifying data, such as names and social security numbers of those receiving care, could be withheld on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §§87(2)(b) and 89(2)(b)]. Although the Department agreed to disclose the names of hospitals and insurers, as well as other "nondeniable SPARCS data" including the zip code of a patient’s residence, his or her gender, race and ethnicity, the month and year of a patient’s admission and discharge, and the number of preoperative and postoperative days of care, it denied access to the names of physicians who performed certain procedures, contending that disclosure of physicians’ names could lead to the identification of particular patients. Nevertheless, the court determined that the likelihood of identification of a patient was based on "speculation", and it was "not persuaded that the additional disclosure of the physician identifier will result in an unwarranted invasion of personal privacy" [New York Times Company v. New York State Department of Health, 243 AD2d 157, 160 (1998)].

Lastly, the Court of Appeals, the state’s highest court, confirmed its its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

In sum, in consideration of the disclosures routinely made by the Department of Health and the direction given by the Court of Appeals indicating that exceptions to rights of access to records must be "narrowly construed", I believe that the Freedom of Information Law, rather than 42 U.S.C. 1396a(a)(7) or §369(4) of the Social Services, governs rights of access. If that is so, based on the language of that statute and New York Times, supra, the information sought should be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

Enc.

cc: Robert "Jake" LoCicero
Records Access Appeals Officer