May 7, 2007



FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear Ms. Mitchell:

I have received your letter and hope that you will accept my apologies for the delay in response. You referred to the placement of your son following the issuance of a PINS petition in a residential treatment facility and the rejection of “a foil request for medical records and any records pertaining to [your] son while in placement.”

In this regard, the statute that generally deals with public access to government records, 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 (j) of the Law.

Relevant to the matter is the first ground for denial, §87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is §501-c of the Executive Law. That provision was initially enacted to pertain to the Division for Youth, but it now applies to its successor that performs functions that had been carried out by that agency, the Office of Children and Family Services. Section 501-c involves files pertaining to youths maintained by the Division for Youth (or its successor) and states that those records are confidential and may be disclosed only in specified circumstances. That provision states in relevant part that:

"Records or files of youths kept by the division for youth shall be deemed confidential and shall be safeguarded from coming to the knowledge of and from inspection or examination by any person other than one authorized to receive such knowledge or to make such inspection or examination: (I) by the division pursuant to its regulations; (ii) or by a judge of the court of claims when such records are required for the trial of a claim or other proceeding in such court; or (iii) by a federal court judge or magistrate, a justice of the supreme court, a judge of the county court or family court, or a grand jury. No person shall divulge the information thus obtained without authorization to do so by the division, or by such justice, judge or grand jury."

Based on the foregoing, assuming that §501-c is applicable, it is likely that the records in question may be disclosed only pursuant to a court order.

I note that the Governor recently signed legislation known as “Jonathan’s law”, which was prepared in response to the death of an autistic child at a state facility. In brief, it is my understanding that the new law will require that records pertaining to allegations of patient abuse or mistreatment at a mental health facility must be made available to the parents of a child housed at such a facility. Although it is unclear whether that law may be pertinent to your situation, attached is a copy of the legislation.

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


Enc. - A. 6846-A