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FOIL-AO-17719

                                                                                                July 22, 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


            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Commission on Quality of Care & Advocacy for Persons with Disabilities regarding its investigation into allegations made against you in the course of your employment.  In an effort to address your questions, we offer the following comments.

            First, to the extent that you have requested records from the Office of Mental Health, and your request was forwarded to the Commission, and/or that the Commission is in possession of records that originated with the Office of Mental Health, we point out that the Freedom of Information Law pertains to all records of an agency, such as the Commission and the Office of Mental Health, and that §86(4) of that statute defines the term “record” expansively to mean:

“...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on the foregoing, records in possession of or prepared for the Commission constitute Commission records subject to rights conferred by the Freedom of Information Law, irrespective of their origin or function.  In our view, based on the language of the Freedom of Information Law and its judicial interpretation, the fact that records in possession of the Commission originated in a different agency has no bearing on the Commission’s responsibility to honor a request for those records and determine rights of access.

            We note that the Court of Appeals, the state’s highest court, has construed the definition of “record” as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by the law. In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared, the function to which it relates, or its origin are irrelevant. Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565).

            Therefore, in consideration of judicial precedent, when documents come into the possession of the Commission, even though they may have been forwarded by another agency, we believe that they constitute "records" of the Commission subject to the Freedom of Information Law.   Similarly, in our view, if a record is "kept, held [or] filed" by an agency, the agency would be obliged to respond to a request for the record by granting or denying access in accordance with §87(2), even though duplicates of the same record may be maintained by another agency. Moreover, in some instances, when copies of records are maintained by two or more agencies, one agency might have the ability to retrieve the record quickly; another might have to engage in more extensive or time consuming search techniques.

            Second, 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.

            The first ground for denial, §87(2)(a), pertains to records that “are specifically exempted from disclosure by state or federal statute.”  As indicated by the Commission, there are several statutes that may be applicable in this instance.  One such statute is §33.13 of the Mental Hygiene Law, which in subdivision (a) states in relevant part that:

“A clinical record for each patient or client shall be maintained at each facility licensed or operated by the office of mental health or the office of mental retardation and developmental disabilities, hereinafter referred to as the offices.  The record shall contain information on all matters relating to the admission, legal status, care and treatment of the patient or client and shall include all pertinent documents relating to the patient or client.”

Further, subdivision (c) provides that information "about patients or clients reported" to either the  Office of Mental Health or the Commission "and clinical records or clinical information tending to identify patients or clients, at office facilities shall not be a public record and shall not be released by the office or its facilities to any person or agency", except in specified circumstances.

            To the extent that §33.13 is applicable, we believe that it exempts records from disclosure in their entirety.  In contrast, when the Freedom of Information Law governs rights of access, an agency is required to review records to determine which portions, if any, fall within the grounds for denial.  In that situation, often an agency is required to delete portions of records, i.e., personally identifying details, and disclose the remainder of the records.

            Also potentially relevant is §2805-l of the Public Health Law entitled "Incident reporting", which relates to various kinds of events occurring at hospitals.  In relation to those reports, §2805-m requires that such reports be kept confidential and specifies that they are not subject to disclosure "under article six of the public officers law", which is the Freedom of Information Law.  Similarly, §6527(3) of the Education Law pertains to records regarding investigations of patient mental health care and incidents at mental health facilities and states in part that:

"Neither the proceedings nor the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program nor any report required by the department of health pursuant to section twenty-eight hundred five-1 of the public health described herein, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law."

            In short, as we discussed, it is likely that many of the records that you have requested are confidential by statute and may not be released to you. 

            According to our telephone conversation, on appeal, the Commission released copies of two statements that you made, handwritten by a Commission investigator and signed by you.  In your opinion, the Commission failed to provide a copy of a more in-depth statement, handwritten by the same Commission investigator, but not signed by you.  Further, you suggested that the Commission released records to you with your name redacted therefrom.  While we do not believe, based on the preceding remarks, that all records containing reference to you are required to be made public, we know of no basis in the law on which an agency could rely to provide you with copies of records from which your name has been redacted.  We contacted the Commission in an effort to resolve your questions, and subsequently received a copy of correspondence sent to you, dated July 20, 2009, explaining that your name had been redacted in error, and that the Commission provided copies of your interview statements on appeal.  I hope that you find the Commission’s response satisfactory.  To the extent that an additional handwritten “unsigned statement” exists, it does not appear that there would be a basis for denying access.

            On behalf of the Committee on Open Government, we hope that this is helpful to you.

                                                                                    Sincerely,

 

                                                                                    Camille S. Jobin-Davis
                                                                                    Assistant Director

 

CSJ:jm

cc: V. Jerome Luhn
Gary Masline