August 23, 1996



Mr. Willie Wade
Box 163
Campbell Hall, NY 10916

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, unless otherwise indicated.

Dear Mr. Wade:

I have received your letter of August 9, as well as the materials attached to it.

You have complained with respect to requests for records directed to the Department of Health relating to incidents that occurred at the Arden Hill Hospital. It appears that the incidents had been investigated by both that agency and the State Office of Mental Health. Some records have been disclosed, but the contents of many were substantially deleted.

While I am unfamiliar with the specific records at issue or the nature of the incidents in question, I offer the following comments.

First, 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 (i) of the Law.

Second, under the circumstances, it would appear that at least two of the grounds for denial would be significant to an analysis of rights of access.

Section 87(2)(a), the initial ground for denial, pertains to records that "are specifically exempted from disclosure by state or federal statute." In the context of your inquiry, several statutes might prohibit disclosure. For instance, §2805-l of the Public Health Law entitled "Incident reporting" relates to various kinds of events occurring at hospitals. In relation to those reports, §2805-m requires that such reports be kept confidential and specifies that they are not subject to disclosure "under article six of the public officers law", which is the Freedom of Information Law. Similarly, §6527(3) of the Education Law pertains to records regarding investigations of patient mental health care and incidents at mental health facilities and states in part that:

"Neither the proceedings nor the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program nor any report required by the department of health pursuant to section twenty-eight hundred five-1 of the public health described herein, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law."

Also potentially relevant is §87(2)(b) of the Freedom of Information Law, which states that an agency may withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) includes examples of unwarranted invasions of personal privacy, one of which pertains to "disclosure of items of involving the medical or personal records of clients or patients in a medical facility." Therefore, even when the statutes conferring exemptions regarding incident reports and similar records do not apply, insofar as records would identify clients or patients, I believe that an agency would have the ability to deny access to protect personal privacy.

Lastly, you enclosed a news article which indicated that the State Health Department and Office of Mental Health would be conducting investigations. In my view, it does not follow that reporting of certain matters by the news media would necessarily require that the records sought must be disclosed. For reasons described above, records prepared in conjunction with investigations may justifiably be withheld in whole or in part.

I hope that the foregoing serves to enhance your understanding of the matter and that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Hon. William J. Larkin, Jr.
Gary A. Lamay
Susan F. Berry