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FOIL-AO-17691

 

                                                                                                June 26, 2009

 

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, unless otherwise indicated.

Dear

            As you are aware, I have received your letter, and I hope that you will accept my apologies for the delay in response.

            The issue involves the ability of the Office of Temporary and Disability Assistance (“OTDA”) “to redact names of physicians or other personal identifying information when disclosing finalized contracts under the Freedom of Information Law...”  The question arose in relation to a document entitled “Review of Medical Assistance” (“the report”).  The report was prepared by the Office of the State Inspector General and the Inspector General of the Office of the State Comptroller concerning allegations that OTDA gave preferential treatment to a particular contractor providing medical consultative services.  Although the report concluded that OTDA did not provide preferential treatment to the contractor, it found that the contractor improperly altered certain forms submitted in the procurement process.  Those forms indicate “a physician’s willingness and qualification to provide services”, and the report found that some of the forms identified physicians who did not express a willingness to provide their services.  Consequently, you wrote that the staffs proposed by the contractor “did not reliably reflect the actual physicians who would be performing services.”

            The report recommended that OTDA seek an opinion from this office pertaining to “the ability to redact names of physicians or other related information when granting Freedom of Information Law requests to bidders at the end of the contract process.”

            While it is gratifying that the entities that prepared the report recommended that OTDA seek an opinion from the Committee, it is emphasized that an opinion is exactly that and is not binding on an agency or any person.  It is our hope, however, that opinions rendered by this office are educational and persuasive, and that they serve to resolve disputes or problems of interpretation.

            Based on our conversation, the records at issue include the names of certain physicians, but they do not contain additional information of a personal nature or information which in any way may identify a patient or client of a physician.  In consideration of all of the foregoing, I offer the following remarks.

            First, 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 (j) of the Law. 

            As we discussed, one of the exceptions authorizes an agency to withhold records when disclosure would constitute “an unwarranted invasion of personal privacy” [§§87(2)(b), 89(2)(b)].  Additionally, the Personal Privacy Protection Law, which is applicable to state agencies, when read in conjunction with the Freedom of Information Law, makes clear that the protection of privacy as envisioned by those statutes is intended to pertain to personal information about natural persons [see Public Officers Law, §§92(3), 92(7), 96(1) and 89(2-a).  In a decision rendered by the Court of Appeals that focused upon the privacy provisions, the Court referred to the authority to withhold "certain personal information about private citizens" [see Federation of New York State Rifle and Pistol Clubs, Inc., 73 NY2d 92 (1989)].  In another decision rendered by the Court of Appeals and a discussion of “the essence of the exemption” concerning privacy, the Court referred to information “that would ordinarily and reasonably regarded as intimate, private information” [ Hanig v. State Dept. of Motor Vehicles, 79 NY 2d 106, 112 (1992)].  In view of the direction given by the state’s highest court, again, I believe that the authority to withhold the information based upon considerations of privacy is restricted to those situations in which records contain personal information about natural persons, as opposed to information identifiable to those persons in relation to their business or professional capacities.

            Several judicial decisions, both New York State and federal, pertain to records about individuals in those capacities and indicate that the records are not of a “personal nature.”  For instance, one such decision involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989).  In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons".  The court held that:

"...the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence.  In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."

            In another decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department of Health concerning the performance of open heart surgery by hospitals and individual surgeons was requested.  Although the Department provided statistics relating to surgeons, it withheld their identities.  In response to a request for an advisory opinion, it was advised by this office, based upon the New York Freedom of Information Law and judicial interpretations of the federal Freedom of Information Act, that the names should be disclosed.  The court agreed and cited the opinion rendered by this office.

            Like the New York Freedom of Information Law, the federal Act includes an exception to rights of access designed to protect personal privacy.  Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."  In construing that provision, federal courts have held that the exception:

"was intended by Congress to protect individuals from public disclosure of 'intimate details of their lives, whether the disclosure be of personnel files, medical files or other similar files'.  Board of Trade of City of Chicago v. Commodity Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845 (4th Cir. 1973).  Although the opinion in Rural Housing stated that the exemption 'is phrased broadly to protect individuals from a wide range of embarrassing disclosures', 498 F.2d at 77, the context makes clear the court's recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature.  Because of its intimate personal nature, information regarding 'marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payment, alcoholic consumption, family fights, reputation, and so on' falls within the ambit of Exemption 4.  Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573-573 (1980)].

            In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets, supra, it was stated pointedly that:  "The privacy exemption does not apply to information regarding professional or business activities.." (supra, 429).  Similarly in a case involving disclosure of the identities of those whose grant proposals were rejected, it was held that:
"The adverse effect of a rejection of a grant proposal, if it exists at all, is limited to the professional rather than personal qualities of the applicant.  The district court spoke of the possibility of injury explicitly in terms of the applicants' 'professional reputation' and 'professional qualifications'.  'Professional' in such a context refers to the possible negative reflection of an applicant's performance in 'grantsmanship' - the professional competition among research scientists for grants; it obviously is not a reference to more serious 'professional' deficiencies such as unethical behavior.  While protection of professional reputation, even in this strict sense, is not beyond the purview of exemption 6, it is not at its core" [Kurzon v. Department of Health and Human Services, 649 F.2d 65, 69 (1981)].

            Second, physicians are licensed by the state, and records that identify individuals as licensees have long been accessible to the public.  Their identities in their capacities as licensees are accessible through various means, including internet sites maintained by government agencies.

            In sum, assuming that the names of physicians are not coupled with items that are clearly of a personal, private or intimate nature, but rather appear in the records at issue only in relation to their status as licensees, as persons identified solely in relation to their business or professional capacities, I do not believe that there is a valid basis for denying access in response to a request made under the Freedom of Information Law in the circumstance that you described.

            I hope that I have been of assistance.  If you would like to discuss the  matter, please do not hesitate to contact me.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
Executive Director

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