January 15, 1998

Mr. Robert Butts
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458

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. Butts:

I have received your letter of December 1. You have sought
assistance in obtaining medical records pertaining to yourself under the
Freedom of Information Law from the Elmhurst City Hospital in Queens.

In this regard, since the facility in question is part of the New York
City Health and Hospitals Corporation, I believe that it is a governmental
agency subject to the Freedom of Information Law. As a general matter, that
statute 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.

With regard to medical records, the Freedom of Information Law, in
my view, likely permits that some of those records may be withheld in whole
or in part, depending upon their contents. For instance, medical records
prepared by Hospital personnel could be characterized as "intra-agency
materials" that fall within 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.

Nevertheless, a different statute, §18 of the Public Health Law,
generally grants rights of access to medical records to the subjects of the
records. As such, that statute may provide greater access to medical records
than the Freedom of Information Law. It is suggested that you send your
request to the hospital and make specific reference to §18 of the Public Health
Law when seeking medical records.
To obtain additional information concerning access to medical records
and the fees that may be charged for searching and copying those records, you
may write to:

Access to Patient Information Program
New York State Department of Health
Hedley Park Place
Suite 303
433 River Street
Troy, NY 12180

I hope that I have been of some assistance.


Robert J. Freeman
Executive Director