July 28, 1999

Ms. Emily E. Maute
Law Offices of Dupee & Dupee, P.C.
30 Matthews Street
P.O. Box 470
Goshen, NY 10924

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

Dear Ms. Maute:

As you are aware, I have received your letter of June 23, as well as the materials
attached to it. You have sought my views concerning the propriety of a denial of a request
for records maintained by the Division of State Police.

By way of background, you represent a client who has a claim for injuries against a
physician relating to the death of a fetus carried by the client in the third trimester of her
pregnancy. The incident was investigated by the Division of State Police, but the Orange
County District Attorney chose not to prosecute. Your client, who has initiated a suit
claiming malpractice against the physician, and the physician were represented by counsel in
a civil action at the deposition of your client during which the District Attorney testified, and
you enclosed a transcript of a portion of an exchange in which it was stated that "[i]t's been
agreed between counsel after discussion that with respect to the various parties to this action
that as far as questions pertaining to anything that was asked of or discussions with the
district attorney between representatives of any of the parties, that no claim of privilege will
be raised." It is your view that the stipulation quoted above and the holding in Mantica v.
NYS Department of Health [679 NYS2d 469, 248 AD2d 30 (1998)] negate the ability of the
Division to withhold the records at issue, which were denied on the ground that disclosure
would constitute an unwarranted invasion of personal privacy.

In this regard, I offer the following comments.

First, 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.

As indicated in the response by the Division of State Police, one of the grounds for
denial states that an agency may withhold records insofar as disclosure would result in "an
unwarranted invasion of personal privacy" [§87(2)(b)]. Section 89(2) provides additional
direction concerning the ability to protect against unwarranted invasions of personal privacy.

The decision to which you referred, Mantica, in my view reflects the principle that a
person cannot invade his or her own privacy. In that case, the petitioners requested the file
pertaining to the investigation of a complaint that they made in connection with care provided
by a hospital to one of the petitioners. Both the Supreme Court and the Appellate Division
rejected the agency's contention that there is a statutory prohibition against disclosure of
patient information by a third party to the patient himself or herself, stating that "denying a
patient disclosure of his or her own health care information is illogical and to condone such
prohibition would be unreasonable" (id., 470). The Appellate Division found further that:

"In this case, the patient who initiated the inquiry, and was the subject of that
inquiry, requested disclosure of, inter alia, materials related to his own
medical history obtained by respondent during the resulting investigation.
Thus, the patient's right to privacy and the confidentiality of his medical
records are not of concern" (id., 471).

In terms of the Freedom of Information Law, §89(2)(c)(iii) states that, unless a
different ground for denial can properly be asserted, "disclosure shall not be construed to
constitute an unwarranted invasion of personal privacy...when upon presenting reasonable
proof of identity a person seeks access to records pertain to him."

Based on the foregoing, I believe that the Division of State Police is required to
disclose to you, representing your client as the subject of the records, any materials relating
to her own medical history or otherwise pertaining her.

Second, with respect to the records not otherwise available to your client in
conjunction with the preceding commentary, i.e., those pertaining to the physician, including
his conduct, background and similar matters, the question, in my opinion, involves the extent
to which disclosure would result in an unwarranted invasion of his privacy. In general, when
a person is the subject of a complaint, a charge or an allegation that has not been proven, it
has been advised that records relating to such complaint, charge or allegation may be withheld
to protect that person's privacy. In my view, an unsubstantiated allegation may be withheld
from the public so that the unproven claim does not result in detriment or unfair disadvantage
to the subject of the claim.

The question, therefore, in my opinion involves the extent to which agreement
between the parties in the presence of the District Attorney constitutes a waiver concerning
the ability of the Division of State Police to withhold the records. Again, the agreement
indicates that there would be "no claim of privilege" in relation to "questions pertaining to
anything that was asked of or discussions with the district attorney between representatives
of the parties."

From my perspective, the extent to which the foregoing could be construed to
constitute a waiver by the physician regarding records pertaining to him is unclear. In a letter
to the Division's Appeals Officer, your colleague with your firm wrote that "counsel for each
of the parties has agreed that it would be appropriate, in this circumstance, to allow full
disclosure of the sum and substance of each of the parties' interactions with the New York
State Police via the Orange County District Attorney's Office" and that , "[t]herefore, the
privileges or privacy issues that you are seeking to protect have already been waived." If that
statement is accurate, I would agree that the ability of the Division to deny access in order to
protect the privacy of the physician would have been eliminated. However, the language as
it appears in the transcript is not as unequivocal, in my view, as your colleague's statement
in the appeal.

Due to the lack of clarity of the statement in the transcript, I cannot advise with
certainty as to the extent to which there has been a waiver regarding the disclosure of the
records in question. If the scope of the waiver can be clearly established by the parties, such
agreement would authorize disclosure of materials that might otherwise be deniable by the
Division of State Police. It is suggested that you attempt to prepare such an agreement.

Lastly, notwithstanding the absence of a clear waiver, as suggested earlier, some
aspects of the records would appear to pertain to your client and may be in the nature of
medical information that should be disclosed. That being so, I believe that the denial of the
request was overbroad. I note that the Court of Appeals has stressed that the Freedom of
Information Law should be construed expansively. Most recently, in Gould v. New York
City Police Department [87 NY 2d 267 (1996)], the Court reiterated its general view of the
intent of the Freedom of Information Law, stating that:

"To ensure maximum access to government records, the
'exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested
material indeed qualifies for exemption' (Matter of Hanig v.
State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106,
109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers
Law § 89[4][b]). As this Court has stated, '[o]nly where the
material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld'
(Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419
N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial
of access to records is inconsistent with the requirements of the Freedom of Information Law.
In that case, the Police Department contended that "complaint follow up reports" could be
withheld in their entirety on the ground that they fall within the exception regarding intra-
agency materials, §87(2)(g), an exception separate from that cited in response to your
request. The Court, however, wrote that: "Petitioners contend that because the complaint
follow-up reports contain factual data, the exemption does not justify complete nondisclosure
of the reports. We agree" (id., 276), and stated as a general principle that "blanket
exemptions for particular types of documents are inimical to FOIL's policy of open
government" (id., 275). The Court also offered guidance to agencies and lower courts in
determining rights of access and referred to several decisions it had previously rendered,
stating that:

"...to invoke one of the exemptions of section 87(2), the
agency must articulate 'particularized and specific justification'
for not disclosing requested documents (Matter of Fink v.
Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393
N.E.2d 463). If the court is unable to determine whether
withheld documents fall entirely within the scope of the
asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all
nonexempt, appropriately redacted material (see, Matter of
Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490
N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons
v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d,
at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

I hope that I have been of assistance.



Robert J. Freeman
Executive Director

cc: Lt. Col. Bruce Arnold
Lt. Laurie M. Wagner