October 27, 2003

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 letter and the attached materials in which you questioned the propriety of a denial of access to records "pertaining to the Centers for Medicare and Medicaid Services' Survey report on policies and practices at Sunmount DDSO in Tupper Lake."

Mr. Paul R. Kietzman, General Counsel and FOIL Appeals Officer for the Office of Mental Retardation and Developmental Disabilities (OMRDD), responded "to your appeal of the denial of your request for a copy of the Federal Centers for Medicare and Medicaid Services (CMS) survey report regarding the Sunmount Development Center." In upholding the denial, Mr. Kietzman wrote that "[f]ederal regulations prohibit the report from being released to the public until the provider (OMRDD) has had an opportunity to comment on the report and those comments have been incorporated into the report (See, 42 CFR 431.115(h)). We are in the process of preparing a response to CMS regarding the survey report."

Since I was unfamiliar with the federal regulations and the law upon which the regulations are based, I consulted with an attorney at OMRDD in an effort to research the applicable provisions.

The section of the federal regulations cited by Mr. Kietzman, 42 CFR 431.115(h), pertains to evaluation reports on providers and contractors. In the context of the records of your interest, it my understanding that OMRDD is a "provider" operating a medicaid funded program. Paragraph (1) of 42 CFR 431.115(h) states in pertinent part, as follows:

"Evaluation reports on providers and contractors. (1) If the Secretary sends the following reports to the Medicaid agency, the agency must meet the requirements of paragraphs (h) (2) and (3) of this section in releasing them...(iii) Program validation survey reports and other formal performance evaluations of providers, including the reports of followup reviews."

Paragraph (2) provides that:

"The agency must not make the reports public until - - (i) the contractor or provided has had a reasonable opportunity, not to exceed 30 days to comment on them; and (ii) Those comments have been incorporated in the report."

Although the Freedom of Information Law is based upon a presumption of access, the first ground for denial, §87(2)(a), indicates that an agency may deny access when records are exempted from disclosure by state or federal statute. In my opinion, regulations may support a denial of records only to the extent that the statute upon which the regulations are based clearly exempts the records from public inspection. However, in this instance, the Social Security Act appears to impose restrictions on public inspection of the records of your interest. 42 U.S.C. 1306 (e) and (f), provide in pertinent part that "program validation survey reports...shall [not] be made public...until the contractor or provider of services whose performance is being evaluated has had a reasonable opportunity (not exceeding 60 days) to review such report and to offer comments, pertinent parts of which may be incorporated in the public report." Based on the language quoted in the preceding sentence, I believe that 42 U.S.C. 1306(f) requires OMRDD to deny access to a program validation survey report until it has had a reasonable opportunity to review and offer comments on the report.

I hope that I have been of assistance.



David Treacy
Assistant Director


cc: Paul Kietzman