March 13, 2009
FROM: Robert J. Freeman, Executive Director
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.
I have received your letter in which you asked whether a certain record is “foilable.” You wrote that you “voluntarily submitted to a police forensic psychological evaluation” and that the report was sent to the Yates County Sheriff. Your request for a copy of the report has been denied. In this regard, I offer the following comments.
From my perspective, two statutes are relevant in considering rights of access, §18 of the Public Health Law, and the Freedom of Information Law.
Section 18 generally grants rights of access to “patient information” to the subjects of those records, and the definition of “patient information” includes “a health assessment for insurance and employment purposes” [subdivision (1)(e)]. Because I am not an expert with respect to the Public Health Law or §18, I contacted the Office of the Patient Information Coordinator at the State Department of Health to seek guidance. In brief, I was informed that if the physician who performed the psychological evaluation maintains that report, §18 applies, and you would have a right to gain access to the report, unless the physician believes that disclosure “can reasonably be expected to cause substantial and identifiable harm to the subject or others”. When there is a denial of access on that basis, the subject of the record must be informed of the right to appeal to a medical record access review committee. If, however, the physician was retained pursuant to a contract or similar agreement to perform services for the County, and if the report is maintained only by the County, I was advised that the report does not constitute “patient information” and that §18 of the Public Health Law does not apply.
In that latter situation in which there would be no right of access under the Public Health Law, the report maintained by or for the County would nonetheless fall within the coverage of the Freedom Information Law. That 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 (j) of the Law.
The provision of relevance, §87(2)(g), pertains to communications between or among government officers or employees, and between those officers and employees and persons or entities retained as consultants. That provision authorizes an agency to withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
Assuming that the report was prepared either by a County employee or a person retained to conduct the evaluation and prepare the report, those portions of the report that consist of factual information should be accessible to you. Others consisting of an opinion, a recommendation or advice could, in my view, be withheld.
I hope that I have been of assistance.
cc: Yates County Sheriff