July 14, 1995
Mr. Victor Torres
Comstock, NY 12821
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. Torres:
I have received your letter of July 4, and I appreciate your kind comments.
According to your letter, you requested your son's clinical mental health records from the Mount Sinai Medical Center on May 23 pursuant to §33.16 of the Mental Hygiene Law. As of the date of your letter, however, you had received no response. You have asked how long the facility has to respond and to whom you may appeal in the event of either a failure to respond or a written denial of access.
In this regard, the statute within the Committee's advisory jurisdiction, the Freedom of Information Law, pertains to records maintained by governmental entities; that statute does not apply to private entities, such as a private hospital. From my perspective, the statute upon which you based your request governs access to the records in question.
As I understand §33.16 of the Mental Hygiene Law, it provides rights of access to clinical mental health records to "qualified persons," and paragraph 6 of subdivision (a) of that section defines that phrase to include "a parent of an infant." Since you indicated that your son is an infant, it appears that you are a"qualified person" and that you may assert rights of access under that statute. Further, §33.16(b)(3) states in relevant part that:
...upon the written request of a parent of an infant...a facility shall provide an opportunity, within ten days, for such parent...to inspect any clinical record maintained or possessed by such facility concerning care and treatment of the infant for which the consent of a parent... was obtained or has been requested; provided, however, that such parent ...shall not be entitled to inspect or make copies of any clinical record concerning the care and treatment of an infant where the treating practitioner determines that access to the information requested by such parent...would have a detrimental effect on the practitioner's professional relationship with the infant, or on the care and treatment of the infant or on the infant's relationship with his or her parents..."
Subdivision (d) of §33.13 pertains to the right to appeal a denial of access and states that:
"(d) Clinical records access review committees. The commissioner of mental health the commissioner of mental retardation and developmental disabilities and the commissioner of alcoholism and substance abuse services shall appoint clinical record access review committees to hear appeals of the denial of access to patient or client records as provided in paragraph four of subdivision (c) of this section. Members of such committee shall be appointed by the respective commissioners. Such clinical record access review committees shall consist of no less than three nor more than five persons. The commissioners shall promulgate rules and regulations necessary to effectuate the provisions of this subdivision."
If you do not receive a satisfactory response to your request, it is suggested you request the rules and regulations from the appropriate commissioner in order to ensure that you are following the correct procedure and that you can properly assert your rights.
I hope that I have been of some assistance.
Robert J. Freeman