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FOIL-AO-15757

January 23, 2006

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 letter and the materials attached to it. You have sought my views concerning the propriety of a denial of access to records by the Nassau County Police Department.
It appears that you represent the insured in a matter in which a deceased person was killed when she was run over by a "hi-lo." Having requested all reports relating to the incident from the Department, you were informed that the incident "was determined to be accidental and non-criminal", and that the file concerning the matter "primarily deals with emergency medical assistance rendered to the decedent." That being so, the Department indicated that the request would be denied, "without a release from the estate", on the ground that disclosure would constitute "an unwarranted invasion of personal privacy", citing §89(2)(b) of the Freedom of Information Law. It was added that the records are also exempted from disclosure by statute, specifically, §2805-c of the Public Health Law and HIPAA.

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.

As suggested in the response to your request, the initial ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." Insofar as the records include material prepared by a provider of medical services, I believe that they could be characterized as medical records that are exempt from disclosure. While the provision in the Public Health Law referenced in the response to your request appears to reflect a typographical error, §2803-c(3) concerning rights of patients states in paragraph (f) that "Every patient shall have the right to privacy in treatment and in caring for personal needs, confidentiality in the treatment of personal and medical records, and security in storing personal possessions."

Insofar as the records were not prepared by providers of medical services, but rather, for example, by police personnel, I believe that the Freedom of Information Law would govern, and that the issue would involve the extent to which disclosure would constitute an unwarranted invasion of personal privacy. The Court of Appeals, the state’s highest court, recently dealt with issues involving the privacy of the deceased and their surviving family members for the first time in New York Times Company v. City of New York Fire Department [4 NY3d 477 (2005)]. The records in question involved 911 tape recordings of persons who died during the attack on the World Trade Center on September 11, 2001, and the decision states that:

"We first reject the argument, advanced by the parties seeking disclosure here, that no privacy interest exists in the feelings and experiences of people no longer living. The privacy exception, it is argued, does not protect the dead, and their survivors cannot claim ‘privacy’ for experiences and feelings that are not their own. We think this argument contradicts the common understanding of the word ‘privacy’."

"Almost everyone, surely, wants to keep from public view some aspects not only of his or her own life, but of the lives of loved ones who have died. It is normal to be appalled if intimate moments in the life of one’s deceased child, wife, husband or other close relative become publicly known, and an object of idle curiosity or a source of titillation. The desire to preserve the dignity of human existence even when life has passed is the sort of interest to which legal protection is given under the name of privacy. We thus hold that surviving relatives have an interest protected by FOIL in keeping private affairs of the dead (cf. Nat’l Archives and Records Admin. V. Favish, 541 US 157 [2004])" (id., 305).

Based on the foregoing, it is clear that there may be an interest in protecting privacy in consideration of the deceased, as well as their family members. Nevertheless, the ensuing question involves the content of records, and whether the information is so intimate or personal that disclosure would result in an "unwarranted" invasion of privacy. As stated by the Court:

"The recognition that surviving relatives have a legally protected privacy interest, however, is only the beginning of the inquiry. We must decide whether disclosure of the tapes and transcripts of the 911 calls would injure that interest, or the comparable interest of people who called 911 and survived, and whether the injury to privacy would be ‘unwarranted’ within the meaning of FOIL’s exception" (id., 306).
In its focus on the nature of the calls, it was found that:

"The privacy interests in this case are compelling. The 911 calls at issue undoubtedly contain, in many cases, the words of people confronted, without warning, with the prospect of imminent death. Those words are likely to include expressions of the terror and agony the callers felt and of their deepest feelings about what their lives and their families meant to them. The grieving family of such a caller – or the caller, if he or she survived – might reasonably be deeply offended at the idea that these words could be heard on television or read in the New York Times.

"We do not imply that there is a privacy interest of comparable strength in all tapes and transcripts of calls made to 911. Two factors make the September 11 911 calls different.

"First, while some other 911 callers may be in as desperate straits as those who called on September 11, many are not. Secondly, the September 11 callers were part of an event that has received and will continue to receive enormous - - perhaps literally unequalled - - public attention. Many millions of people have reacted, and will react, to the callers’ fate with horrified fascination. Thus it is highly likely in this case - - more than in almost any other imaginable - - that, if the tapes and transcripts are made public, the will be replayed and republished endlessly, and that in some cases they will be exploited by media seeking to deliver sensational fare to their audience. This is the sort of invasion that the privacy exception exists to prevent" (id.).

As I view the direction offered by the Court of Appeals, the extent to which the contents of records are indeed intimate and personal is the key factor in ascertaining whether disclosure would result in an unwarranted invasion of personal privacy. From my perspective, the fact of a death is itself not intimate. However, to the extent that the records include information that "would ordinarily and reasonably be regarded as intimate, private information", it has been held that disclosure would constitute an unwarranted invasion of personal privacy [see Hanig v. Department of Motor Vehicles, 79 NY2d 106, 112 (1992)].

In sum, without additional information concerning the specific nature and content of the records at issue, I cannot offer unequivocal guidance. Nevertheless, insofar as they consist of medical records falling within the coverage of the Public Health Law, either §§18 or 2803-c, it appears that they would be specifically exempted from disclosure by statute. With respect to other records, I believe that those portions consisting of intimate personal information or which are in the nature of medical records may be withheld under the Freedom of Information Law on the ground that disclosure would result in an unwarranted invasion of personal privacy. Other aspects of the records, i.e., those that are not medical records or which do not consist of intimate personal information, would appear to be accessible.

I hope that the foregoing serves to clarify your understanding and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Robert W. McGuigan