Getting the Word Out, Inc. v. N.Y.S. Olympic Reg'l Dev. Auth.

• Decision Date: 27 September 2021
• Docket Number: Index No. CV21-0121
• Parties: In the Matter of the Application of GETTING THE WORD OUT, INC., d/b/a Adirondack Explorer, Petitioner, v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, Respondent.
• Court: New York Supreme Court

73 Misc.3d 670
153 N.Y.S.3d 824

In the Matter of the Application of GETTING THE WORD OUT, INC., d/b/a Adirondack Explorer, Petitioner,
v.
NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, Respondent.

Index No. CV21-0121

Supreme Court, New York, Essex County.

Decided on September 27, 2021

153 N.Y.S.3d 825

Jeffrey P. Mans, Esq., Albany, New York, for Petitioner.

Letitia James, Esq., New York State Attorney General (Christopher J. Fleury, Esq., Assistant Attorney General), Plattsburgh, New York, for Respondent.

Richard B. Meyer, J.

Petition to compel the respondent to produce injury reports from sporting and athletic events and competitions held at Mt. Van Hoevenberg pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art. 6 ).

This proceeding was commenced by the electronic filing of a notice of petition and petition, with exhibits A through H, and a memorandum of law on March 15, 2021. New York State Olympic Regional Development Authority (ORDA) filed an answer and return on April 16, 2021 which included duplicate copies of some of the exhibits attached to the petition, a 35-page HIPAA guidance document from the U.S. Department of Health & Human Services, an affidavits from Rebecca Dayton sworn to April 14, 2021, an affidavit from Eugene Byrne, M.D., sworn to March 30, 2021 with exhibit A thereto, an affidavit of Mellissa Furnia sworn to March 31, 2021, a letter memorandum of

153 N.Y.S.3d 826

law dated April 16, 2021, and unredacted copies of the reports for in camera review. The petitioner submitted a reply memorandum of law on April 29, 2021, and a supplemental letter memorandum of law on September 9, 2021. This Court has considered all of the foregoing pleadings and papers. In addition, by letter dated April 20, 2021 this Court requested that ORDA's public information officer appear at oral argument to answer questions which this Court determined were raised in the papers. ORDA not only objected to that request but requested that the matter be decided on the record already submitted.¹

The petitioner Getting the Word Out, Inc. (GWO) is a New York not-for-profit corporation publishing a bi-monthly magazine known as the Adirondack Explorer as well as digital content in the form of weekly and daily newsletters, a digital edition of the magazine, and an annual outings guide. The respondent ORDA is a public authority created by the Legislature for the purposes of, among other things, operating certain sports venues, and conducting athletic training and competition events thereat, within and outside of the Adirondack Park, including an Olympic-class bobsled, luge and cross-country skiing facility known as Mt. Van Hoevenberg (MVH) in the town of North Elba, Essex County.

The facts underlying this proceeding are mostly uncontroverted. James M. Odato (Odato), an investigative reporter working for GWO, submitted via electronic mail a FOIL request on July 17, 2020 to ORDA's records access officer, Elise Ruocco (Ruocco), for "copies of injury reports from January 2015 through July 4, 2020 and from calendar year 2004 from sporting and athletic events and competitions at Mt. Van Hoevenberg".² On July 21, 2020, ORDA's assistant counsel, Adam P. Powers (Powers), emailed Odato, stating that a response would be forthcoming within both twenty and forty-five business days³ , which Powers corrected three days later to just the forty-five business-day time period.⁴ . Powers again extended ORDA's response time for another thirty business days on September 22, 2020.⁵

In early November 2020 Powers provided 200 accident or incident reports⁶ which were almost completely blacked out and redacted except for the event venue, general incident location, date, time, the name and signature of the person completing the report, and the date the report was completed. Copies of those reports without redaction were furnished to this Court for in camera review and comparison. Most of the reports are on a form labeled "Olympic Regional Development Authority Medical Incident Report", while others are on a form utilized by the International Bobsleigh and Skeleton Federation (IBSF) and there is one ORDA General Incident Report. Powers justified the blackouts and redactions by relying upon the exemption for unwarranted invasion of personal privacy ( Public Officers Law § 87[2][a] ) and specifically referencing the Health Insurance Portability and Accountability Act of 1996 (HIPAA) ( 42 U.S.C. § 1320d - § 1320d-9 ; 45 C.F.R. §§ 160.101 et seq. ).

153 N.Y.S.3d 827

Odato appealed from ORDA's decision to heavily redact the reports by letter dated November 13, 2020, citing and enclosing a June 24, 2019 advisory opinion issued to ORDA by the New York State Committee on Open Government (COOG). In that opinion, the COOG suggested that except for "clearly identifying details" from which the identity of the person involved or injured in the incident could be discerned -- such as "a victim's name, address, phone number and similar items unique to that person ..."⁷ disclosure of other information was not exempt. COOG further opined that "it would be difficult to demonstrate how disclosure of a person's occupation, his or her height and weight, a victim's description of his or her injury, the nature of treatment, or the destination to which the victim was transported would serve as information that could reasonably be used to identify an individual."⁸

By letter dated December 1, 2020, ORDA's general counsel, Michelle A. Crew (Crew), denied the appeal on the grounds that the redacted information "constitutes medical history information under POL § 89(2)(b)(i)"⁹ exempt from disclosure because it would result in an unwarranted invasion of personal privacy, and cited case authorities, including Matter of Hanig v. State Dept. of Motor Vehicles , 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 717, 588 N.E.2d 750, 752 (1992), and portions of HIPAA regulations. Specifically, Crew stated that the subject records were prepared by "medical responders" such as doctors, physicians assistants, emergency medical technicians, and/or ski patrol personnel, and contained information collected from an injured party, the medical responder's assessment of that person, and whether the person was transported to a hospital or other location. In addition to pedigree information — name, date of birth, address, phone number, etc. -- the records include comment on person's physical condition, diagnosis of injury or injuries, vital signs, relevant medical history, and medical treatment provided and recommended. Some of the records contain a consent to release of the information signed by the injured person, but most do not. Crew noted that ORDA was and is a "covered entity" under HIPAA and release of the records would require authorization from the injured party to release the information. Crew also ruled that the redacted information in the records "fits squarely into the personal privacy exemption of POL § 87(2)(b). Finally, Crew noted that identification of the injured persons in the subject records would be more easily accomplished because most of those persons were elite athletes engaged in training or competitions at the ORDA venues.

Judicial review of a determination by an administrative agency under CPLR Article 78 is limited to whether the challenged decision "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" ( CPLR § 7803[3] ). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] )." ( Matter of Peckham v. Calogero , 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 754, 911 N.E.2d 813, 816 [2009] ). Here, GTWO contends that ORDA's redaction of the records, and the denial of its appeal, were arbitrary and capricious and were affected by an error of law.

153 N.Y.S.3d 828

"FOIL imposes a broad duty of disclosure on government agencies (see, Public Officers Law § 84 ; Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 419 N.Y.S.2d 467, 393 N.E.2d 463 [1979] ). All agency records are presumptively available for public inspection and copying, unless they fall within 1 of 10 categories of exemptions, which permit agencies to withhold certain records ( Public Officers Law § 87[2] ; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 79-80, 476 N.Y.S.2d 69, 464 N.E.2d 437 [1984] ). Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption ( Public Officers Law § 89[4][b] )." ( Matter of Hanig v. State Dept. of Motor Vehicles , 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 717, 588 N.E.2d 750, 752 [1992] ). "As this Court has stated, ‘[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld’ ( Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 )." ( Matter of Gould v. New York City Police Dept. , 89 N.Y.2d 267, 274-275, 653 N.Y.S.2d 54, 57, 675 N.E.2d 808, 811 [1996] ). Moreover, "[e]ven where...