May 28, 2002

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.


I have received your communication of May 1, as well as others, concerning a request for certain records made to the Office of Mental Retardation and Developmental Disabilities ("the Office"). You have sought an advisory opinion concerning the response to your request by the Office.

According to your letter:

"An incident that occurred on or about Aug. 17, 2997 at Syracuse Developmental Center involving the center's chaplain, Charles A Aho, and a resident of the center, Charles Henson. [Your] understanding is that the Rev. Aho left the center with the resident for a long period of time without authorization and that police were called to find them. The Rev. Aho was charged with endangering the welfare of an incompetent person as a result of the incident." You requested a variety of records pertaining to the incident, some of which were found to be accessible, others of which do not exist; and the remaining records were denied. The response to your request indicates that those withheld are "investigative reports" that are exempt from disclosure pursuant to §33.13 of the Mental Hygiene Law and, therefore, §87(2)(a) of the Freedom of Information Law.

From my perspective, insofar as the records at issue may be characterized as "clinical records", the Office is required to deny access; insofar as they cannot be so characterized, it appears that portions of the records may be accessible. In this regard, I offer the following comments.

As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §33.13 of the Mental Hygiene Law, which in subdivision (a) states in relevant part that:

"A clinical record for each patient or client shall be maintained at each facility licensed or operated by the office of mental health or the office of mental retardation and developmental disabilities, hereinafter referred to as the offices. The record shall contain information on all matters relating to the admission, legal status, care and treatment of the patient or client and shall include all pertinent documents relating to the patient or client."

Further, subdivision (c) provides that information "about patients or clients reported" to the Office "and clinical records or clinical information tending to identify patients or clients, at office facilities shall not be a public record and shall not be released by the office or its facilities to any person or agency", except in specified circumstances.

To the extent that §33.13 is applicable, I believe that it exempts records from disclosure in their entirety. In contrast, when the Freedom of Information Law governs rights of access, an agency is required to review records to determine which portions, if any, fall within the grounds for denial. In that situation, often an agency is required to delete portions of records, i.e., personally identifying details, and disclose the remainder of the records.

Based on a decision rendered by the Court of Appeals, the state's highest court, I believe that when a class of records or data is specifically exempted for disclosure by statute, an agency is not required to delete portions of records, to protect privacy, for example; rather, the records are considered to be exempt from disclosure in their entirety [see Short v. Board of Managers of Nassau County Medical Center, 57 NY2d 399 (1982)]. If §33.13 had not been enacted, and if no analogous statute existed, I would agree that the Office, assuming it had the capacity to do so, would be obliged to delete identifying details pertaining to patients and perhaps others and disclose the remainder of the data. However, since §33.13 encompasses clinical records as a class, I do not believe that the Office would be obliged or permitted to withhold portions of those records and disclose others.

Notwithstanding the foregoing, it is questionable in my view whether the records that have been withheld would in every instance constitute "clinical records." In a case involving records relating to an assault in a psychiatric facility, it was held that the records were not exempt from disclosure by statute. In Feliciano by Perez v. State [669 NYS2d 457 (1997), the court considered a variety of statutes dealing with review functions precipitated by incidents occurring at both medical and psychiatric hospitals [see e.g., Public Health Law, §§2805-l and 2805-m, and Education Law, §6527(3)] and found that the provisions requiring confidentiality relating to those incidents pertain only to incidents involving "care and treatment." In Feliciano, "Claimant, then a fourteen year-old patient at Bronx Children's Psychiatric Center, [sought] damages for an alleged sexual assault by an employee...of the Center...and for other possible similar incidents" (id.), and the court concluded that the pertinent confidentiality statutes "precluded disclosure of material that was in the nature of quality-of-care review and oversight" and that they would not apply to records "of an investigation that was essentially part of a security function" (id., 459). In my view, if the records in question are similar or analogous to those considered in Feliciano and other decisions in which the same conclusion was reached, the documentation sought would not constitute clinical records or records involving quality of care, and the statutes cited above requiring confidentiality would not apply. In that event, although I believe that the Freedom of Information Law would govern rights of access, several grounds for denial could be pertinent.

Section 87(2)(b) authorizes an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy", and §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy. It would appear that names or other identifying details pertaining to the patient involved in the incident, other patients who might be named, and witnesses, for example, could be withheld based on the exception regarding the protection of privacy. Those provisions would also apply in my opinion insofar as they include or refer to unsubstantiated allegations pertaining to a named individual.

Also of likely relevance would be §87(2)(g), which permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter- agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

I note that the provisions referenced in the preceding paragraph pertain to communications between, among or within agencies, and that §86(3) defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Based on the foregoing, a written communication between the Office, for example, and a religious organization would not constitute "inter-agency" material, for the religious organization is not an agency. This is not to suggest that communications between the Office or its facilities and a religious organization must necessarily be disclosed. While those communications might not fall within the scope of §87(2)(g), other exceptions to rights of access might apply.

Although the Office and its facilities are not criminal law enforcement agencies, it has been advised, in consideration of particular facts, that agencies may perform law enforcement functions. In those circumstances, §87(2)(e) may be pertinent, for it permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

The extent to which the provision quoted above may be asserted would be dependent on the extent to which the harmful effects described in subparagraphs (i) through (iv) would arise by means of disclosure.

In sum, insofar as the records sought consist of clinical records, I believe that the Office would be required to deny access pursuant to §33.13 of the Mental Hygiene Law. Insofar, however, as that statute does not apply, the Freedom of Information Law, in my opinion, would determine rights of access.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: John Shave