May 6, 1999



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 :

I have received your letter of April 8 and the materials relating to it. You have
questioned the propriety of the deletion of portions of a record made available to you under
the Freedom of Information Law by the Office of Mental Retardation and Developmental
Disabilities (OMRDD).

In this regard, in an effort to attempt to ascertain whether the deletions were made in
a manner consistent with law, I discussed the matter with an attorney at OMRDD. She
informed me that all of the deletions involve personally identifying information. If that is so,
I believe that the deletions would have been appropriate.

As you may be 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. In my view, either of the two of the grounds for denial may be
relevant in the context of the issue presented.

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 of Mental Health or OMRDD "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. In my opinion, none of those circumstances would apply in relation to your

The other provision of significance, §87(2)(b), authorizes an agency to withhold
records insofar as disclosure would constitute "an unwarranted invasion of personal privacy."
Additionally, §89(2) states that "an agency may delete identifying details when it makes
records available" and includes examples of unwarranted invasions of personal privacy. The
second such example pertains to "disclosure of items involving the medical or personal
records of a client or patient in a medical facility."

From my perspective, assuming that the deletions involve personally identifying
details, they could justifiably have been made under either of the grounds for denial described
in the preceding commentary.

I hope that the foregoing serves to enhance your understanding of the matter and that
I have been of assistance.



Robert J. Freeman
Executive Director


cc: Paul R. Kietzman