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  • Cory Morris

Second Department - Mohel's Medical History not Subject to the New York Freedom of Information L


A recent case again touches upon exemptions to the public's right to know. In New York, the Public's Right to Know is a statutory civil right codified in the Public Officer's Law. New York's Freedom of Information Law or FOIL is a useful tool to expose government corruption and wrongdoing. In addition, the New York Freedom of Information Law allows people to FOIL records and FOIL documents that may be pertinent to their own well being. People can FOIL their own school records and other times people have FOIL-ed records pertaining to their arrest or prosecution to obtain information relevant to a civil case. This case is one having to do with a religious ceremony that is medical in nature.

FOIL "expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 565). To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted (see Public Officers Law § 87[2]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 565; Matter of New York Times Co. v New York State Dept. of Health, 243 AD2d 157, 159). FOIL expressly provides that an agency that has denied disclosure on the basis of an exemption "shall in all proceedings have the burden of proving entitlement" to the exemption (Public Officers Law § 89[5][e]).

A court is to presume that all records are open, and it must construe the statutory exemptions narrowly (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; Matter of Prall v New York City Dept. of Corr., 129 AD3d 734, 735). The agency is required to "articulate a particularized and specific justification for denying access'" (Matter of Dilworth v Westchester County Dept. of Correction, 93 AD3d 722, 724, quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; see Matter of Prall v New York City Dept. of Corr., 129 AD3d at 735-736). "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed" (Matter of Dilworth v Westchester County Dept. of Correction, 93 AD3d at 724; see Matter of Baez v Brown, 124 AD3d 881, 883).

Here, a FOIL request was made for disclosure of certain documents pertaining to an infant and the Mohel who circumscribed that infant. The information sought the name of the Mohel who may have been infected with the herpes virus:

Under Section 11.03 of the New York City Health Code, certain instances of "[d]iseases and conditions of public health interest" be reported to the New York City Department of Health and Mental Hygiene (hereinafter the Department) (see NY City Health Code [24 RCNY] § 11.03). Upon receiving a report under section 11.03, the Department may, among other things, conduct epidemiological and laboratory investigations to verify the diagnosis and ascertain the source or cause of the infection, identify additional cases and contacts, and implement public health measures to control the disease or condition (see NY City Health Code [24 RCNY] § 11.03[e]). Included within the list of reportable diseases and conditions are infections of the herpes simplex virus (HSV) in infants 60 days of age or younger (see NY City Health Code [24 RCNY] § 11.03[a]).

Although government records are preemptively open for FOIL, there are exemptions and exceptions. Public Officers Law § 87(2)(b) expressly exempts from disclosure records that "if disclosed would constitute an unwarranted invasion of personal privacy" under Public Officers Law § 89(2). Public Officers Law § 89(2)(b)(i) expressly includes "medical . . . histories" within the ambit of "unwarranted invasion of personal privacy". Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106, 110-111). The Court of Appeals has held that "medical history" is " information that one would reasonably expect to be included as a relevant and material part of a proper medical history'" (id. at 111-112, quoting Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 168 AD2d 884, 884, affd 79 NY2d 106).

Here, there was a FOIL request, followed by an appeal that was denied. The remedy when a FOIL appeal is denied is to proceed with a filing in Court - A CPLR Article 78 to review a determination of the FOIL Appeals Officer. That is what happened here. The facts and procedural history pertaining to this case are as follows:

In December 2012, the Department received a report that a newborn infant male had been found to be infected with the herpes simplex virus type 1 (hereinafter HSV-1) (see NY City Health Code [24 RCNY] § 11.03[a]). After conducting an epidemiological investigation (see NY City Health Code [24 RCNY] § 11.03[e]), the Department circulated an "alert" to various healthcare providers and laboratories. The alert indicated that over a 13-year period there had been 12 laboratory-confirmed instances in which newborn males had been infected with HSV-1 during a particular method of ritual Jewish circumcision. In the performance of that method, known as "metzitzah b'peh," the person performing the circumcision, known as a "mohel," makes direct oral contact with the circumcision wound (see generally Cent. Rabbinical Cong. of the United States v New York City Dept. of Health & Mental Hygiene, 763 F3d 183, 187 [2d Cir]). According to the alert, the instance reported in December 2012 was consistent with transmission of the HSV-1 infection by mouth in that the herpes lesions were on the infant's penis, the HSV-1 virus is commonly found in the mouths of adults, and the infection was found within 10 days after circumcision. The alert also contained information and instructions for providers and laboratories for, among other things, the treatment of infant boys following circumcision and the reporting of HSV-1 detection in specimens from an infant.

After the alert was circulated, Paul Berger, a reporter at the Jewish Daily Forward (hereinafter the Forward), a newspaper serving the Jewish and Yiddish-speaking communities of New York City, filed a request with the Department pursuant to the Freedom of Information Law (hereinafter FOIL) (see Public Officers Law § 84 et seq.). In that request, Berger described the record he sought: "the name of the mohel who infected an infant with HSV-1 during ritual circumcision in December 2012." After the Department denied his request, Berger filed an administrative appeal. The administrative appeal was denied on "multiple" grounds, one of which was that the information Berger requested was related to an individual's "medical condition," and that its release would thus, under Public Officers Law § 87(2)(b), constitute an unwarranted invasion of personal privacy. Berger and the Forward (hereinafter together the petitioners) then sought review of the denial under CPLR article 78 (see Public Officers Law § 89[4][b]). The Supreme Court denied the petition and dismissed the proceeding.

The information requested was subject to a New York FOIL exemption. Although the Supreme Court applied the wrong standard, the Second Department finds that the request for the name of the Mohel (without the release of his medical record) is not warranted pursuant to FOIL. See Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d at 111-112, quoting Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 168 AD2d at 884. No attorney's fees are awarded pursuant to Public Officers Law § 89[4][c].

The Case is Matter of Berger v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 01667 (2d Dep't., Mar. 9, 2016). For more information about New York's Freedom of Information Law or to hire an attorney to help you file a FOIL request, please contact The Law Offices of Cory H. Morris.

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