August 9, 2012

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 Mr.:
Once again, I apologize for the delay in response and hope that this communication will be useful to you.

In brief, you have requested and obtained a variety of materials from the New York State Department of Health relating to home care agencies, particularly those that have been the subjects of complaints.  Specifically, in January, you requested records of “complaint investigations” involving home care agencies that you identified.  It is your belief that the Department maintains the records at issue.  Nevertheless, the Department’s records access officer, James O’Hare, informed you that your request was being forwarded to the Centers for Medicare and Medicaid Services, also known as CMS, for response.  CMS is a unit of the U.S. Department of Health and Human Services.

Pertinent is memorandum of April 30, 2009 addressed to State Survey Agency Directors concerning “Release of Form CMS-2567 (Statement of Deficiencies) by State Survey Agencies (SAs)”.  An element of the memorandum entitled “Release of CMS-2567 and Freedom of Information Act (FOIA) states that:

“In response to FOIA requests by members of the public, including the media, copies of 2567s are directly releasable by the SA or RO in paper or electronic format without further review by the CMS Freedom of Information Group.  The request can be in writing or via e-mail or fax, and RO or SA may release the document(s) in hardcopy or via e-mail as a PDF file.  Any individual identifiers (other than standard patient/resident or staff alphanumeric identifiers, e.g., ‘Patient 1’ ‘Physician 2’, etc.) must be deleted from the document prior to release” (emphasis added).

The CMS-2567, a “Statement of Deficiencies and Plan of Correction”, includes a “listing of deficiencies cited by the surveying State Agency (SA)…as requiring correction”, as well as the name address of the facility, a “prefix identification tag” that refers to each deficiency found, the nature of corrective action, and summaries of each deficiency and “the facility’s plan for corrective action and the anticipated time of correction (an explicit date must be shown).”  SA’s are directed to “Please maintain a copy for your records.”

In this regard, even absent the guidance by CMS indicated above, I believe that the Department is obliged to disclose the records in question that are in its possession.  Critical is §86(4) of the Freedom of Information Law, which relates to the scope and application of that statute.

The cited provision defines the term “record” to include:

“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, it is clear in our opinion that materials generated or prepared by or for an agency are “agency records” that fall within the requirements imposed by the Freedom of Information Law.

When an agency prepares a record and copies are transmitted or acquired to one or more other agencies, any of those agencies in receipt of a request made under the state’s Freedom of Information Law would be obliged to respond [see e.g., Muniz v. Roth, 620 NYS 700 (1994)].  Perhaps most significant for purposes of illustration is a decision rendered by the Court of Appeals involving a request made to a state agency for copies of subpoenas issued by a court for that agency’s records.  To put the matter in context, while the Freedom of Information Law includes all state and municipal agencies within its scope, the courts are excluded from the coverage of that law.  That being so, the agency denied access, contending that court records in its possession were not covered by the Freedom of Information Law.  In Newsday v. Empire State Development Corporation [98 NY2d 359 (2002)], however, the Court of Appeals unanimously disagreed, stating that the records were subject to the Freedom of Information Law, “irrespective of whether they are deemed to have been a mandate of a court and issued for a court.”  The Court found further that “ESDC, a state public corporation, is undeniably an agency under FOIL.  It presently has physical possession of the subpoenas.  Thus, in the hands of ESDC, the subpoenas constitute agency records: ‘information kept [or] held * * * by * * * agency [i.e., ESDC] * * * in any physical form whatsoever.”

Perhaps more relevant is a decision rendered by the Court of Appeals, the state’s highest court, in Citizens for alternatives to Animal Labs v. Board of Trustees [92 NY2d 357 (1998)].  In that case, even though records were kept pursuant to federal law by a state agency, the Court determined that the records fell within the coverage of the New York Freedom of Information Law and were subject to rights conferred by that statute. In short, the fact that records are kept or held by an agency brings them within the coverage of the Freedom of Information Law, irrespective of “the function or purpose for which an agency’s documents are generated or held.” The Court held further that “FOIL’s scope...’is not to be limited based on the [Federal] purpose’ for which the certifications were kept ‘or the function to which [they] relate [],’ i.e., serving to comply with a Federal mandate...”(id., 361).

In like manner, we believe that copies of the records prepared by the “SA”, the State Department of Health in this instance, that remain in the possession of the Department are records of that agency for the purpose of consideration of a request made under the Freedom of Information Law.  That the records might have been prepared to comply with federal law is of no moment; if they are maintained by the Department, they constitute agency records falling within the coverage of the Freedom of Information Law.  Further, in consideration of the direction concerning disclosure of the CMS 2567’s, it is clear that they are accessible to the public, with the exception of personally identifiable details regarding patients or clients.

Copies of this opinion will be sent to Mr. O’Hare, the Department’s Freedom of Information Law appeals officer, Rose E. Firestein, and Eileen Sullivan.

I hope that I have been of assistance.

cc:  James T. O’Hare
Rose E. Firestein
Eileen Sullivan