February 11, 2008

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.

Dear :

            We are in receipt of your requests for an advisory opinion concerning application of the Freedom of Information Law to a request made to the Oswego County Legislature for “disclosure of the legislators who are currently enrolled in the county health plan” or “a list of all active legislators who are receiving health benefits and legislators who are using the $1,000 annual perk”.  Your requests were denied on the ground that it was private, personal health information exempt from release pursuant to the Health Insurance Portability and Accountability Act (HIPAA).  We believe that records reflecting the information that you requested must be disclosed, and in this regard, we offer the following comments.

            First, it is noted that the Freedom of Information Law pertains to existing records.  Section 89(3) of that statute states in part that an agency is not required to create a record in response to a request.  Therefore, if no list exists, the County would not be obliged to prepare a list on your behalf.  In the future, unless it is certain that a list exists, it is suggested that a request should refer to records containing the information of interest rather than a list.

            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.

            Relevant to the matter is §87(2)(a) which pertains to records that “are specifically exempted from disclosure by state or federal statute.”  The term “statute”, according to judicial decisions, is an enactment of Congress or the State Legislature.  In this case, the County alleges that the Health Insurance Portability and Accountability Act, a federal statute which is widely known as HIPAA, prohibits disclosure of the requested information.  In our view, the restrictions on disclosure do not apply to records or portions of records that indicate only a public employee’s enrollment or participation in a health insurance plan.

            The “Privacy Rule” imposed by HIPAA applies only to “covered entities”, which are defined to include a health plan, a health care clearinghouse, and a health care provider that transmits any health information in electronic forms (see 45 CFR §§160, 162 and 164, particularly §160.103).  Only “protected health information”, which is defined as information relating to an individual’s physical or mental health, provision of health care, or payment of health care, falls within the scope of the regulations.

            In the federal regulations dealing with “health plans”, 45 CFR 160.103 states in relevant part that:

“Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual and:

(1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and

(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual...”

However, the same section of the regulations states that “Protected health information excludes individually identifiable health information in...(iii) Employment records held by a covered entity in its role as employer.”  Based on the foregoing, the fact that a public employee participates in a public employer sponsored health insurance plant does not constitute protected health information that is confidential under HIPAA.

            It is noted that information indicating only participation in a health insurance plan differs from other records that include greater detail or personal information relating to actual events involving requests for or the provision of medical or mental health services or treatment.  For instance, the federal regulations in 45 CFR §164.054 relate to “plan administration functions” and state in subdivision (a) that:

“Summary health information means information, that may be individually identifiable health information, and:
“1) That summarizes the claims history, claims expenses, or type of claims experienced by individuals for whom a plan sponsor has provided health benefits under a group health plan...”

The foregoing would signify that claims based on the provision of medical or mental health services have been made by an individual, and any such records would, therefore, be protected under HIPAA.  To be distinguished is information that merely indicates that an individual participates in a health benefits plan, which alone indicates nothing about claims for or the provision of medical or mental health services.  Records solely indicating participation in a plan in our view clearly are excluded from the scope of “protected health information” for they are merely “employment records held be a covered entity in its role as employer.”

            Also relevant, as raised by the County in response to Ms. Thompson’s appeal, is §87(2)(b) which enables agencies to withhold records to the extent that disclosure would constitute an unwarranted invasion of personal privacy.  

            While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers employees.  It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public officers and employees are required to be more accountable than others.  Further, with regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of their official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, supra; Capital Newspapers v. Burns, 109 AD 2d 292 (1985) aff'd 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov.  22, 1977].

            In Matter of Wool, the applicant requested a list of employees of a town "whose salaries were subject to deduction for union membership dues payable to Civil Service Employees Association...".  In determining the issue, the Court held that:

"...the Legislature has established a scale to be used by a governmental body subject to the 'Freedom of Information Law' and to be utilized as well by the Court in reviewing the granting or denial of access to records of each governmental body.  At one extreme lies records which are 'relevant or essential to the ordinary work of the agency or municipality' and in such event, regardless of their personal nature or contents, must be disclosed in toto.  At the other extremity are those records which are not 'relevant or essential' - which contain personal matters wherein the right of the public to know must be delicately balanced against the right of the individual to privacy and confidentiality.

"The facts before this Court clearly are weighted in favor of individual rights.  Membership or non-membership of a municipal employee in the CSEA is hardly necessary or essential to the ordinary work of a municipality.  'Public employees have the right to form, join and participate in, or to refrain from forming, joining or participating in any employee organization of their choosing.'  Membership in the CSEA has no relevance to an employee's on-the-job performance or to the functioning of his or her employer."

            Consequently, it was held that portions of records indicating membership in a union could be withheld as an unwarranted invasion of personal privacy.  Based on the Wool decision, it might be contended, as the County has set forth, that whether a public employee is covered by a health insurance plan or received $1,000 in lieu of enrollment has no relevance to the performance of that person's official duties, and that, therefore, such information may be withheld. 

            We point out that records indicating the salaries of public employees must be disclosed.  Specifically, §87(3)(b) of the Freedom of Information Law states that:  "Each agency shall maintain...a record setting forth the name, public office address, title and salary of every officer or employee of the agency..."  Similarly, records reflective of other payments, whether they pertain to overtime, or participation in work-related activities, for example, would be available, for those records in our view would be relevant to the performance of one's official duties.  It is also noted that those portions of W-2 forms indicating public employees' names and gross wages have been found to be available to the public (Day v. Town Board of  Town of Milton, Supreme Court, Saratoga County, April 27, 1992).

            In sum, in our opinion, a record of payment to a public official or employee would generally be accessible to the public and not an unwarranted invasion of personal privacy.  In this instance, it is our view that the names of those who have received payments in conjunction with the plan should be made available.

            A third provision of §87(2) which the County relies on to deny access is §87(2)(g), which, we believe, only supports our position that the law requires disclosure.  Section 87(2)(g) permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i.  statistical or factual tabulations or data;

ii.  instructions to staff that affect the public;

iii.  final agency policy or determinations; or

iv.  external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative.  While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted.  Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in our view be withheld.

            We point out that the Court of Appeals, the State's highest court, recently focused on what constitutes "factual data", stating that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132, 490 N.Y.S. 2d 488, 480 N.E.2d 74 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549, 442 N.Y.S.2d 130]).  Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I].  Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, 463 N.Y.S.2d 122, mod on other grounds, 61 NY2d 958, 475 N.Y.S.2d 272, 463 N.E. 2d 613; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182. 417 N.Y.S.2d 142)" [Gould v. New York City Police Department, 89 NY2d 267, 276, 277 (1996)].

           Based on the foregoing, insofar as records include reference to the information in question, we believe that they consist of “factual data” that must be disclosed under §87(2)(g)(i) of the Freedom of Information Law. 

            On behalf of the Committee on Open Government, we hope this is helpful to you.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director



cc:  Theodore Jerrett
Christa L. Carrington