September 6, 2007

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.


As you are aware, I have received your letter and the materials relating to it. Please accept my apologies for the delay in response.

The matter relates to your request for records of the New York State Department of Health concerning an investigation by its Office of Long Term Care of the Jewish Home of Rochester. The investigation was precipitated by your complaint involving the treatment of our mother, a resident at the facility, and it was determined that there was no evidence indicating a violation of either state or federal regulations. You specified in our conversation that you were given power of attorney by your mother and designated as her health care proxy. Nevertheless, in an initial response, you were informed that the records sought could not be disclosed, and that the only information that may be disclosed would be pursuant to “the State Operations Manual, 3308.” You were also informed that you could contact the Department’s records access officer, Robert LoCicero, to obtain information concerning the appeal process.

You did so, and Mr. LoCicero reiterated that the records are “not to be releasable because of privacy concerns and pursuant to POL § 87.2(a) and Department regulation 10 NYCRR 50-2.6(g)...” He also indicated that “[t]he federal records withheld were in accordance with an agreement with the Secretary of Health and Human Resources under Section 1864 of the Social Security Act.” As I understand the situation and the provisions cited by Mr. LoCicero, none would justify a denial of access to the records at issue. In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to all records of an agency, such as the Department of Health, and §86(4) of that statute defines the term “record” expansively to mean:

"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on the foregoing, records in possession of or prepared for the Department constitute Department records subject to rights conferred by the Freedom of Information Law, irrespective of their origin or function.

The Department regulations to which Mr. LoCicero referred states that: “Persons requesting records in the possession of the department but which records originated in any other State or federal agency shall be referred to the originating agency when there is a question concerning confidentiality requirements.” In my view, based on the language of the Freedom of Information Law and its judicial interpretation, the fact that records in possession of the Department originated in a different agency has no bearing on the Department’s responsibility to honor a request for those records and determine rights of access.

I note that the Court of Appeals, the state’s highest court, has construed the definition of “record” as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by the Law. In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared, the function to which it relates, or its origin are irrelevant. Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565).

In consideration of judicial precedent, when documents come into the possession of the Department, even though they may have been forwarded by another agency, I believe that they constitute "records" of the Department subject to the Freedom of Information Law.

Second, 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 (j) of the Law.

“POL § 87.2(a)” is the first ground for denial and states that an agency may withhold records that “are specifically exempted from disclosure by state or federal statute.” A statute, based upon judicial interpretations of the Freedom of Information Law, is an act of the State Legislature or Congress [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)], and it has been found that agencies’ regulations are not equivalent to statutes for purposes of §87 (2)(a) of the Freedom of Information Law [see Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) ]. Therefore, insofar as the Department’s regulations render records or portions of records deniable in a manner inconsistent with the Freedom of Information Law or some other statute, those regulations would, in my opinion, be invalid. Regulations cannot operate, in my view, in a manner that provides fewer rights of access than those granted by the Freedom of Information Law.

In addition, insofar as there may be an agreement which limits rights of access conferred by a statute, such as the Freedom of Information Law, I believe that they are void and unenforceable. The Court of Appeals has held that a request for or a guarantee of confidentiality is all but meaningless; unless one or more of the grounds for denial appearing in the Freedom of Information Law may appropriately be asserted, the record sought must be made available. In Washington Post, supra, the controversy involved a claim of confidentiality with respect to records prepared by corporate boards furnished voluntarily to a state agency. The Court also concluded that “just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption” (id., 567).

I note, too, that §1864 of the Social Security Act, the provision cited by Mr. LoCicero, refers to the ability of a state agency to engage in an agreement with the federal government to maintain a unit for investigating complaints such as yours. However, there is nothing in its language that pertains to or requires confidentiality. That being so, I do not believe §1864 may be characterized as a statute that exempts records from disclosure.

Lastly, Mr. LoCicero referred to “privacy concerns”. Although §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy”, that exception in my opinion would not serve as a basis for withholding records identifiable to your mother. Since you have been given power of attorney, I believe that you serve as the alter ego of your mother and, therefore, enjoy whatever rights of access she may have.

In an effort to encourage the Department to reconsider its response to your request, copies of this opinion will be forwarded to Department officials.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director
cc: Robert LoCicero
Paul Stavis