Getting the Word Out, Inc. v. N.Y.S. Olympic Reg'l Dev. Auth.
| Docket Number | 534345 |
| Decision Date | 16 March 2023 |
| Citation | 214 A.D.3d 1158,185 N.Y.S.3d 408 |
| Parties | In the Matter of GETTING THE WORD OUT, INC., Doing Business as Adirondack Explorer, Respondent—Appellant, v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, Appellant—Respondent. |
| Court | New York Supreme Court — Appellate Division |
Letitia James, Attorney General, Albany (Kevin C. Hu of counsel), for appellant-respondent.
Law Office of Jeffrey P. Mans, Albany (Jeffrey P. Mans of counsel), for respondent-appellant.
Before: Clark, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and McShan, JJ.
McShan, J. Cross-appeals from a judgment of the Supreme Court (Richard B. Meyer, J.), entered September 27, 2021 in Essex County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent denying petitioner's Freedom of Information Law request.
Petitioner is a domestic not-for-profit corporation that operates in the Village of Saranac Lake, Franklin County and publishes a magazine alongside digital offerings that report on various issues that affect the Adirondack region. Respondent is a public authority (see Public Authorities Law § 2608 ) that was created to manage and operate the Olympic facilities used during the 1980 Winter Olympic Games in the Village of Lake Placid, Essex County. One of the facilities that respondent operates is Mt. Van Hoevenberg, a sport training and recreation venue for the sports of bobsled, skeleton, luge, Nordic skiing and biathlon. In July 2020, petitioner made a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request to respondent for copies of injury reports from January 2015 through July 2020, and also from calendar year 2004, for sporting and athletic events and competitions that took place at Mt. Van Hoevenberg.
In response, respondent provided injury reports with certain information either redacted or withheld. Respondent claimed that the redacted and withheld information would constitute an unwarranted invasion of privacy or was exempt from disclosure under the Health Insurance Portability and Accountability Act of 1996 ( 42 USC § 1320d et seq. [hereinafter HIPAA]). Specifically, the documents, which consisted of respondent's medical incident reports, general incident reports, a modified standardized assessment of a concussion and injury registration documents, redacted all health-related information, leaving in place certain information pertaining to the event or venue, incident location, the date and time of accident, an incident number, if any existed, references to a participant's team or country and the applicable sliding sport discipline, depending on the form. Petitioner administratively appealed and respondent's FOIL appeals officer thereafter denied the appeal, finding that the information sought was exempt under both the invasion of privacy exemption and under HIPAA.
Petitioner then commenced the instant CPLR article 78 proceeding, seeking an order to compel respondent to comply with its obligations under FOIL and produce the injury reports from sporting and athletic events and competitions, including the nature of injuries and treatment provided to any individual participants without any personally identifying information, as well as an award of counsel fees. Following an in camera review of the documents, Supreme Court found that the lack of disclosure by respondent was affected by an error of law and ordered a more complete disclosure, subject to the deidentification methodology provided in the HIPAA Privacy Rule (45 CFR parts 160, 164), promulgated by the U.S. Department of Health and Human Services (hereinafter HHS). However, given the unique nature of the records, the court denied petitioner's request for counsel fees, having determined that there was a reasonable basis for respondent to withhold the information. Respondent appeals and petitioner cross-appeals.
It is well settled that "FOIL imposes a broad duty of disclosure on government agencies and all agency records are presumptively available for public inspection and copying unless one of the statutory exemptions applies, permitting the agency to withhold the records" ( Matter of Hepps v. New York State Dept. of Health, 183 A.D.3d 283, 287, 122 N.Y.S.3d 446 [3d Dept. 2020] [internal quotation marks, brackets and citations omitted], lv dismissed & denied 37 N.Y.3d 1001, 152 N.Y.S.3d 668, 174 N.E.3d 693 [2021] ; see Public Officers Law §§ 84, 87[2] ; Matter of Suhr v. New York State Dept. of Civ. Serv., 193 A.D.3d 129, 135, 142 N.Y.S.3d 616 [3d Dept. 2021], lv denied 37 N.Y.3d 907, 2021 WL 4099023 [2021] ). "Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption" ( Matter of Hanig v. State of N.Y. Dept. of Motor Vehs., 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 [1992] [citation omitted]; see Matter of Tatko v. Village of Granville, 207 A.D.3d 975, 977, 172 N.Y.S.3d 233 [3d Dept. 2022] ; Matter of Hepps v. New York State Dept. of Health, 183 A.D.3d at 287, 122 N.Y.S.3d 446 ).
Respondent contends that it satisfied its burden for nondisclosure by establishing that the records at issue are exempted pursuant to Public Officers Law § 87(2) as medical records or histories of the individuals who were the subject of the relevant documents. Specifically, respondent points to Public Officers Law § 87(2)(b), which allows an agency to deny the disclosure of records where "disclos[ure] would constitute an unwarranted invasion of personal privacy." Respondent also relies upon Public Officers Law § 87(2)(a), which permits an agency to deny access to certain records if the records "are specifically exempted from disclosure by state or federal statute"; specifically, respondents contend that the requested records are exempt from disclosure pursuant to HIPAA. In this regard, the HIPAA Privacy Rule provides that "a covered entity may not use or disclose protected health information without an authorization that is valid under this section," subject to certain exceptions ( 45 CFR 164.508 [a][1]).
The records at issue consist of a variety of injury reports maintained by respondent in the course of operating Mt. Van Hoevenberg. Specifically, respondent provided its own medical incident reports, which constituted a majority of the relevant documents, alongside International Bobsleigh and Skeleton Federation (hereinafter IBSF) injury registration documents, which were occasionally accompanied by a "[f]it to [s]lide" document that was also prepared by IBSF. Beyond providing space to input basic demographic information, the medical incident reports contained, among other things, various prompts pertaining to the medical care received by a participant, including a subjective and objective physical assessment of any injuries suffered, treatment provided and the manner of discharge. The forms also contained spaces to input the event and incident location, as well as the date and time of the incident and an incident number. The IBSF reports were used to record the date and time of the incident and whether the athlete was cleared for continued participation. Further, those reports identified the track, the sliding sport discipline, the official event or race type, the anatomical location and type of injury, the symptoms and the treatment received. In each instance, the information on the report was generated by an on-site health care provider.
We initially find that the health-related information contained in the reports at issue is subject to the protections of both HIPAA and Public Officers Law § 87(2)(b). Specifically, the HIPAA Privacy Rule, among other things, addresses the use and disclosure of "individually identifiable health information," which is defined as "any information, including demographic information collected from an individual, that ... is created or received by a health care provider, ... relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and ... identifies the individual ... or[,] with respect to which[,] there is a reasonable basis to believe that the information can be used to identify the individual" ( 42 USC § 1320d [6]). Further, as relevant here, Public Officers Law § 89(2)(b)(i) expressly provides for the protection of medical history, which refers to "information that one would reasonably expect to be included as a relevant and material part of a proper medical history" ( Matter of Hanig v. State of N.Y. Dept. of Motor Vehs, 79 N.Y.2d at 111–112, 580 N.Y.S.2d 715, 588 N.E.2d 750 [internal quotation marks omitted]; see Matter of Berger v. New York City Dept. of Health & Mental Hygiene, 137 A.D.3d 904, 907, 27 N.Y.S.3d 588 [2d Dept. 2016], lv denied 27 N.Y.3d 910, 2016 WL 3524313 [2016] ; Matter of Beyah v. Goord, 309 A.D.2d 1049, 1050, 766 N.Y.S.2d 222 [3d Dept. 2003] ). Upon our review, we conclude that the information provided on the subject forms falls within these protections, as it directly pertains to the relevant individual's present health condition and would reasonably be included as part of his or her medical history. Accordingly, as the information is subject to a specific exemption to disclosure, "the court need not engage in a balancing of the privacy interests at stake against the public interest in disclosure of the information" ( Matter of Police Benevolent Assn. of N.Y. State, Inc. v. State of New York, 165 A.D.3d 1434, 1437, 86 N.Y.S.3d 246 [3d Dept. 2018] [internal quotation marks, brackets and citations omitted]; see Matter of Abdur–Rashid v. New York City Police Dept., 31 N.Y.3d 217, 225, 76 N.Y.S.3d 460, 100 N.E.3d 799 [2018] ).
Nevertheless, our review does not...
To continue reading
Request your trial