August 17, 1995
Mr. Raphael Smith
Pine City, NY 14871
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. Smith:
I have received your letter of August 4 concerning a request for certain hospital records pertaining to you.
According to your letter, you requested psychiatric records from the Harlem Hospital on June 17 pursuant to the Freedom of Information Law and §18 of the Public Health Law. As of the date of your letter, however, you had received no response.
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. Irrespective of that factor, the statute that deals directly with the records in question is §33.16 of the Mental Hygiene Law.
As I understand §33.16 of the Mental Hygiene Law, it provides rights of access to clinical mental health records, with certain exceptions, to "qualified persons," and paragraph 7 of subdivision (a) of that section defines that phrase to include "any properly identified patient or client." It appears that you are a "qualified person" and that you may assert rights of access under that statute.
Section 33.16(b) states in relevant part that a facility must respond to a request within ten days, and 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
cc: Department of Psychiatry, Harlem Hospital