FOIL AO 18232


August 25, 2010                    

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


            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to a form known as the Monroe County Mental Hygiene Form, which documents when, due to particular circumstances, an individual is transported to a hospital or temporarily detained by a local police agency. Similar forms are utilized in other counties, based on the authority of a police officer, pursuant to Mental Hygiene Law §9.41, to “take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others.”  The Monroe County Form includes space for detailed information regarding the individual, including whether the person has a “history of assault/violent behavior,” and the nature of the individual’s behavior or actions that warrant detention, such as being “unable to care for self”, “verbal threats” and “attempted to hurt/kill self/others”. 

            From our perspective, insofar as information on such a form may be characterized as "clinical records ", the Town of Webster Police Department is required to deny access if sought by the public; insofar as the information cannot be so characterized, it appears that the bulk of the contents of the form may be withheld pursuant to the discretionary authority to do so inherent in the Freedom of Information Law. 

            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 (k) of the law.

            The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §33.13 of the Mental Hygiene Law, which in subdivision (a) states in relevant part that:

"A clinical record for each patient or client shall be maintained at each facility licensed or operated by the office of mental health or the office of mental retardation and developmental disabilities, hereinafter referred to as the offices. The record shall contain information on all matters relating to the admission, legal status, care and treatment of the patient or client and shall include all pertinent documents relating to the patient or client."

            Subdivision (c) provides that information "about patients or clients reported to the offices"… "and clinical records or clinical information tending to identify patients or clients, at office facilities shall not be a public record and shall not be released by the office or its facilities to any person or agency", except in specified circumstances.

            “Facility” is defined in §1.03 of the Mental Hygiene Law as “any place in which  services for the mentally disabled are provided and includes but is not limited to a psychiatric center, developmental center, institute, clinic, ward, institution, or building,….  It shall not include a place where the services rendered consist solely of non-residential services for the mentally disabled which are exempt from the requirement for an operating certificate under article sixteen, thirty-one or thirty-two of this chapter, nor shall it include domestic care and comfort to a person in the home.”

            To the extent that §33.13(a) and (c) are applicable, we believe that they exempt records from disclosure in their entirety.  Based on a decision rendered by the Court of Appeals, the state's highest court, we believe that when a class of records or data is specifically exempted from disclosure by statute, an agency is not required to delete portions of records, to protect privacy, for example; rather, the records are considered to be exempt from disclosure in their entirety [see Short v. Board of Managers of Nassau County Medical Center, 57 NY2d 399 (1982)].  Because §33.13 encompasses clinical records as a class, we do not believe that an agency would be obliged or permitted to withhold portions of those records and disclose others.

            Notwithstanding the foregoing, we are unable to advise with certainty whether the Monroe County police form would be deemed by a court to be a clinical record subject to MHL 33.13.  On one hand, it is the document which initiates an individual’s interaction with the mental health system and is included in the clinical record; on the other hand, it is prepared by a police officer prior to an individual having established any clinical relationship with any mental health provider.  In this regard, it is questionable in our view whether the information contained on a form of this type would constitute a "clinical record", for it is doubtful whether  a police department would constitute a “facility” providing services to the mentally disabled. 

            Accordingly, we have considered whether any other provision of the Freedom of Information Law would serve as a basis for denial of access.

            Section 87(2)(b) authorizes an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy", and §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy. It would appear that names and other identifying details pertaining to persons transported or to witnesses who might be named in the form, for example, could be withheld based on the exception regarding the protection of privacy. Those provisions would also apply in our opinion insofar as they include or refer to unsubstantiated allegations pertaining to the named individual.

            In sum, although it is not clear whether provisions of the Mental Hygiene Law would apply to prohibit access to a record documenting a person’s transportation pursuant to MHL §9.41, in our opinion, disclosure of the identifying information and the information on the report indicating the officer’s perception of how dangerous the person is, may be withheld from the public, for disclosure would constitute an unwarranted invasion of personal privacy of the subject of the report and any witnesses.  In addition, an opinion expressed by an employee of the Department would also constitute “intra-agency material” deniable pursuant to §87(2)(g).

            Finally, in the event that access to the report is requested by the legal guardian or legal representative of the person who is the subject of the report, and assuming that the Mental Hygiene Law does not apply, we believe that disclosure would not result in an unwarranted invasion of personal privacy.  Disclosure to siblings or parents of adults, on the other hand, would be discretionary under the Freedom of Information Law, for those persons would not necessarily represent the person who is the subject of the record.

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



                                                                                               Camille S. Jobin-Davis
                                                                                               Assistant Director


cc: Robin Goldman, Assistant Counsel
NYS Department of Mental Health