September 11, 1998



Mr. Wallace S. Nolen
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929-2001

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, unless otherwise indicated.

Dear Mr. Nolen:

I have received your letter of August 18, which reached this office on August 26.

You enclosed hand written facsimiles of two forms used at Clinton Correctional
Facility for use by prisoners who seek medical records pertaining to themselves from the
facility's medical department. The practice of the facility involves a requirement that inmates
complete a particular form in order to seek medical records. On that form they must choose
whether to seek the records and pay fees in accordance with the Freedom of Information Law
or §18 of the Public Health Law. You questioned the requirement that the form be completed
and which statute would be applicable. You also referred to the staff of the Department of
Correctional Services being "under the false assumption that all medical records requests get
processed as FOIL with regard to appeals." It is your view that appeals should be directed
to the State Department of Health Access to Patient Records Division.

In this regard, I offer the following comments.

First, there are no judicial decisions of which I am aware that deal with the issue of
which statute applies, the Freedom of Information Law or §18 of the Public Health Law. In
response to one area of inquiry, I believe that the Public Health Law applies; in response to
another, it appears that the Freedom of Information Law applies.

With respect to rights of access, as you are aware, 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.

Medical records prepared by Department staff pertaining to inmates would in my
opinion constitute "intra-agency materials" that fall within the scope of §87(2)(g). Under that
provision, although statistical or factual information must be disclosed, opinions and
recommendations, for example, may be withheld. As such, if the Freedom of Information
Law governs rights of access to medical records, diagnostic opinions could justifiably be
withheld. Under §18 of the Public Health Law, however, in most instances, the entirety of
the contents of medical records is available to the subject of the records.

Further, in situations in which one statute deals with a subject generally and another
statute deals with a particular area within the general subject, the particular prevails over the
general. In this instance, the Freedom of Information Law deals with access to government
records generally; §18 of the Public Health Law deals specifically with access to medical
records, some of which are maintained by governmental entities. From my perspective, it is
likely that a court would determine that rights of access are governed by the Public Health
Law rather than the Freedom of Information Law.

As you may be aware, it has consistently been advised that a request made under the
Freedom of Information Law is adequate so long as it is made in writing and reasonably
describes the records sought. It has also been advised that an agency cannot compel an
applicant to complete its prescribed form. The rationale for that advice is that people seeking
records often cannot appear in person at a government office to complete a form. Moreover,
requests are often made at locations distant from the site of the records. A requirement that
an applicant complete a prescribed form would be unnecessarily time consuming and delay
responses to requests.

In this instance, if the Freedom of Information Law does not apply, our general advice
regarding the use of forms would not be applicable. Even if it does apply, the basis for the
Committee's opinions on the subject would not appear to be pertinent. In short, inmates are
present at the facility from which the records in question are sought. Delays due to mailing
to and from distant locations would not be an issue. In short, it does not appear that the
requirement that a form be completed is unreasonable as I understand the circumstances.

With respect to an appeal, I note that appeals are made under §18 of the Public Health
Law with respect to denials of access to records maintained by health care facilities. Section
18(1)(c) of the Public Health Law defines "health care facility" or "facility" to mean a
hospital, a home care services agency, a hospice, a health maintenance organization, or a
shared health facility, as those terms are defined in other provisions of the Public Health Law.
Having conferred with a representative of the Access to Patient Records Division, it was
advised that a medical treatment unit at a correctional institution is neither a "health care
facility" nor a "facility" as those terms are defined in the Public Health Law. Consequently,
an appeal would not be directed to the Department of Health; rather, I believe that an appeal
would be made to the person designated in the Department's rules and policies.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director