June 20, 2018
FOIL AO 19675
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, except as otherwise indicated.
This is in response to your letter dated June 8, 2018 regarding the confidentiality of records which reflect the names of deceased City residents.
In a memo addressed to the City Clerk, you advise that as part of your official duties as Assessor for the City of Port Jervis, you are responsible for “administering, approving, tracking, and removing all [property tax] exemptions.” You advise that it would be beneficial if the City Clerk could provide you with a list of the names and date of death pertaining to City residents who have died. The City Clerk has expressed concern that she is prohibited by law, specifically citing the Health Insurance Portability and Accountability Act (HIPAA), from doing so. In your letter to us, you reference the Personal Privacy Protection Law (PPPL), which you believe authorizes the disclosure.
By way of background, HIPAA, and its corresponding Privacy Regulations (45 CFR Parts 160 and 164) govern the disclosure of protected health information and patient information by “covered entities.” The Privacy Rule defines “covered entities” to include health plans, health care clearinghouses, and any health care provider who transmits health information in electronic form. (See Department of Health and Human Services webpage: https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html?language=es) In our opinion, HIPAA does not govern the disclosure of death records by a municipal office.
The PPPL was promulgated by the New York State Legislature and is intended to protect individual’s privacy by regulating the manner in which the state collects, maintains and disseminates personal information about individuals. The PPPL only applies to records maintained by state agencies. It is not applicable to records maintained by municipal government agencies.
Access to death records is governed by §4174 of the Public Health Law and §4174(1)(a) states:
“The commissioner or any person authorized by him shall: (a) upon request, issue to any applicant either a certified copy or a certified transcript of the record of any death registered under the provisions of this chapter (1) when a documented medical need has been demonstrated, (2) when a documented need to establish a legal right or claim has been demonstrated, (3) when needed for medical or scientific research approved by the commissioner, (4) when needed for statistical or epidemiological purposes approved by the commissioner, (5) upon specific request by municipal, state or federal agencies for statistical or official purposes, (6) upon specific request of the spouse, children, siblings or parents of the deceased or the lawful representative of such persons, or (7) pursuant to the order of a court of competent jurisdiction on a showing of necessity; except no certified copy or certified transcript of a death record shall be subject to disclosure under article six of the public officers law.” (emphasis is mine)
While it is clear that the City is prohibited from disclosing copies of death certificates to the general public in response to a Freedom of Information Law request, the City Clerk is a “person authorized” by the Commissioner of Health and, as such, is required, pursuant to §4174(1)(a)(5) of the Public Health Law, to provide such records “upon specific request by municipal, state or federal agencies for statistical or official purposes.” As you are making your request in your official capacity as a municipal assessor and your request is for “official purposes,” in my view, the City Clerk is required to make the records available to you.
Finally, I note that you are not requesting copies of the death certificate, but rather only requesting a list of names and dates of death. From my perspective, you are limiting your request to the minimum amount of information which would assist you in performing your official duties. I do not believe there is any state or federal statute or corresponding regulations that would prohibit the City Clerk from providing you with this information under these circumstances.I hope this information proves useful.
Cc: Robin Waizenegger, City Clerk-Treasurer