June 16, 1994
Mr. Richard T. Vineski
Fishkill Correctional Facility
Beacon, NY 12508
The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence,
unless otherwise indicated.
Dear Mr. Vineski:
I have received your letter of May 25.
You referred to a portion of the regulations promulgated by the Department of Correctional Services, 7 NYCRR 5.24(b)(12), which states that inmate medical records are available to inmates pursuant to §18 of the Public Health Law. It is your view that that the Freedom of Information Law should apply, particularly since fees that can be charged for copies of records are higher under the Public Health Law than under the Freedom of Information Law.
In this regard, I offer the following comments.
First, the Freedom of Information Law is a statute that
pertains to government records generally. When a different statute
pertains to particular records, I believe that it would prevail.
As a rule, a specific statute supersedes a general statute. In this instance, §18 of the Public Health Law deals specifically with patients rights of access to medical records pertaining to them.
Moreover, that statute provides the subjects of medical
records with rights in excess of those conferred by the Freedom of
Information Law. Medical records prepared by Department personnel
could be characterized as "intra-agency materials" that fall
the scope of §87(2)(g) of the Freedom of Information Law. To the
extent that such materials consist of advice, opinion,
recommendation and the like, I believe that the Freedom of
Information Law would permit a denial. Under §18 of the Public
Health Law, however, I believe that medical records, even those
consisting of diagnostic opinion, for example, would be available
to the subjects of those records.
Second, with respect to fees, the Freedom of Information Law
authorizes agencies to charge up to twenty-five cents per
photocopy, unless a different fee is prescribed by a statute other
than the Freedom of Information Law. In the case of medical records, subdivision(2)(e) of §18 of the Public Health Law states that:
"The provider may impose a reasonable charge
for all inspections and copies, not exceeding
the costs incurred by such provider. However, the reasonable charge for paper copies shall
not exceed seventy-five cents per page. A qualified person shall not be denied access to
patient information solely because of inability to pay."
Based on the foregoing, the Department of Correctional Service in
my opinion could charge up to seventy-five cents per page for
photocopies of medical records, for that fee is authorized by
statute. Nevertheless, as a matter of practice and policy, I believe that the Department charges fees for copies of medical records at the same rate as it charges for copies of records made
available under the Freedom of Information Law. It has been suggested by a representative of the Department that if you want clarification or additional information on the subject, you may
contact the Department's Office of Counsel.
I hope that I have been of some assistance.
Robert J. Freeman