June 26, 1995


Mr. Robert Pendergrass
Groveland Correctional Facility
P.O. Box 104
Sonyea Road
Sonyea, NY 14556

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 Mr. Pendergrass:

I have received your letter of June 12 in which you sought assistance in obtaining your mental health records. You wrote that you were treated by the DePaul Clinic while in the custody of the Monroe County Sheriff's Office. You submitted requests under the Freedom of Information Law to both the Sheriff and the clinic.

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to governmental entities. Therefore, it would not apply to the DePaul Clinic. That statute, however, does apply to a sheriff's department and, for example, to the Department of Correctional Services.

Second, although the Freedom of Information Law provides broad rights of access, 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 generally requires that clinical records pertaining to persons receiving treatment in a mental hygiene facility be kept confidential.

However, §33.16 of the Mental Hygiene Law pertains specifically to access to mental health records by the subjects of the records. Under that statute, a patient may direct a request for inspection or copies of his or her mental health records to the "facility", as that term is defined in the Mental Hygiene Law, which maintains the records. If the DePaul Clinic maintains the records as a facility, I believe that it would be required to disclose the records to you to the extent required by §33.16 of the Mental Hygiene Law. If the County Sheriff's Department is considered the facility and maintains the records, it would be required to give effect to §33.16. Alternatively, it is possible that the records in question were transferred when you were placed in a state correctional facility. If that is so, the records may be maintained by a different agency. It is my understanding that mental health "satellite units" that operate within state correctional facilities are such "facilities" and are operated by the New York State Office of Mental Health. Further, I have been advised that requests by inmates for records of such "satellite units" pertaining to themselves may be directed to the Director of Sentenced Services, Bureau of Forensic Services, Office of Mental Health, 44 Holland Avenue, Albany, NY 12229. Lastly, it is noted that under §33.16, there are certain limitations on rights of access.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director