December 16, 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.
Dear Mr Koniz:
I have received your note and materials attached to it. Please accept my apologies for the delay in response.
Although the basis for your concern is not entirely clear, as I understand the materials, you applied for a position several years ago with the Federal Aviation Administration (FAA), and based on a response to you prepared by the National Transportation Safety Board in March, 2000, it is your belief that the FAA should not be entitled to certain information pertaining to you, including a psychiatric evaluation. I have no knowledge of the disclosure of any such evaluation. However, one of the items that you enclosed is a letter of October 28, 1993 addressed “to whom it may concern” by the New York State Office of Mental Health indicating that you were employed at one of its facilities from 1980 for a period of approximately six months beginning in November of 1980. That document merely verifies that you were employed at the Hudson River Psychiatric Center; it does not consist of or refer to a psychiatric evaluation.
It is also noted that records involving treatment in a mental health facility or by a mental health provider are generally confidential pursuant to section 33.13 of Mental Hygiene Law; ordinarily those records cannot be disclosed absent the consent of subject of the records. Similarly, section 18 of the Public Health Law specifies that medical records, including those used in relation to employment, cannot ordinarily be disclosed without the consent of the subject. Neither the Freedom Information Law nor the Personal Privacy Protection Law affects public rights of access to records falling within the scope of section 33.13 of the Mental Hygiene Law or section 18 of the Public Health Law. Both of those latter statutes exempt records from disclosure to the general public.
If a psychiatric evaluation was performed in relation to your capacity as an employee, not as a person receiving treatment or care, I note that section 87(2)(b) of the Freedom of Information Law authorizes an agency, such as the Office of Mental Health, to withhold records when disclosure would constitute “an unwarranted invasion of personal privacy.” Section 89(2-a) states that records exempt from disclosure under the Personal Privacy Protection Law remain exempt notwithstanding the provisions of the Freedom of Information Law. Section 96(1) of the Personal Privacy Protection Law forbids a state agency from disclosing personal information identifiable to an individual, a “data subject”, unless disclosure is permitted by an exception appearing in that provision.
In sum, it is unclear on the basis of the correspondence that a psychiatric evaluation pertaining to you was disclosed. It is clear, however, that the authority of a state agency to disclose a record of that nature is limited.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
Robert J. Freeman