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 September 28, 2005

 

 

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.

Dear

We are in receipt of your June 21, 2005 request for an advisory opinion concerning the application of the Personal Privacy Protection Law to the removal of certain records from your workers’ compensation case file.

In this regard, the Committee on Open Government, a unit of the Department of State, is authorized to offer advice and opinions concerning public access to government records under the State’s Freedom of Information and Personal Privacy Protection Laws. Please note that the former applies to entities of state and local government; the latter applies only to state agencies. As we understand your comments, you have attempted to have the Workers’ Compensation Board remove "highly personal, privileged and clearly irrelevant medical records from [your] Electronic Case File as immediately as possible." The Board responded by advising you that the matter must be addressed at a hearing before a Workers’ Compensation Law Judge.

As you know, the Workers’ Compensation Board is responsible for hearing and determining all claims for workers’ compensation benefits (Workers’ Compensation Law §142). Pursuant to this responsibility, the Board adjudicates claims via hearings at which it determines various issues, and it may make awards for compensation and medical benefits. Although no formal rules of evidence apply (Workers’ Compensation Law §118), the Board is responsible for making all evidentiary determinations, including the relevancy of records to a claim for benefits. It is our understanding that all claim records submitted to the Board are maintained electronically, and scanned into the appropriate person’s claim file upon receipt.

In an effort to provide guidance concerning the application of the Personal Privacy Protection Law in this particular situation, we offer the following comments:

In general, the Personal Privacy Protection Law requires that state agencies disclose records about data subjects to those persons. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of the Personal Privacy Protection Law, the term "record" is defined to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject" [§92(9)].

Requests for amendment or correction of records maintained by an agency are governed by §95(2) which states that each agency, upon receipt of such a request, must either make the correction or inform the person who is the subject of the record of its refusal to correct or amend the record and its reasons therefor. However, §94(9) provides that the Person Privacy Protection Law does not "abrogate in any way any obligation regarding the maintenance of records otherwise imposed on an agency at law or in equity."

Accordingly, based on the provision cited above, the extent to which the records at issue may or may not be relevant to your workers’ compensation claim is not within the purview of a party to the compensation claim to determine. The relevance of evidence submitted to the Board is to be determined by the Workers’ Compensation Law Judge responsible for adjudicating the claim. Because documents are scanned/placed into a file upon receipt, rather than included subsequent to a determination as to relevancy, some irrelevant records may be maintained in a case file at any given time. It is therefore our opinion that the Board responded to your request correctly, by explaining that the removal and/or correction of records contained within your workers’ compensation claim file is within the jurisdiction of the Workers’ Compensation Law Judge, and that the Personal Privacy Protection Law does not govern or provide direction concerning the maintenance of those records.

In an effort to clarify this issue with the General Counsel at the Workers’ Compensation Board, we have copied her in on this response.

I trust this meets with your request. Should you have any further questions, please contact me directly.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJD:tt

cc: Cheryl Wood, General Counsel