2004-175

Final Administrative Action

At its February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 1, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of the Executive Director’s findings and recommendations.  The Council, therefore, dismissed the case on the basis that the records requested are not disclosable under N.J.S.A. 47:1A-9 pursuant to Executive Order 26 as they are medical records. 

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 10^th Day of February, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Virginia Hook, Secretary
Government Records Council 

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Findings and Recommendations of the Executive Director

Records Requested: 

1. “Any and all medical records concerning my health and treatment by CMS (“Correctional Medical Services”) past and ongoing.”
2. “Copies and duplicates of any and all orders for medical devices and cancellations.”
3. “All and any medical records concerning my health and maintained by CMS related to me and my health.”
4. “Copies and duplicates of any and all Rest. and their cancellations.”
5. “Specifically medical order for one egg crate mattress and its cancellation.”
6. “Specifically medical order for joint braces and their cancellation.”
7. “Specifically all issued housing rest. post and present and all related medical records.”

Request Made:  October 4, 2004[1]
Response Made: October 14, 2004               
Custodian:   Kathleen Wiechnik
GRC Complaint filed: October 15, 2004

Background

October 4, 2004
Complainant submits a written Open Public Records Act (“OPRA”) Request seeking “any and all records of my healthcare ever provided by CMS to me including all orders for medical devices including egg crate mattress and braces and their cancellations.” 

October 14, 2004
Custodian responds to the Complainant’s October 4, 2004 OPRA request denying access to the requested records under N.J.S.A. 47:1A-9 pursuant to Executive Order 26.  The Custodian contends that the information the Complainant is requesting is exempt from disclosure under OPRA and Executive Order 26 because they are medical records.  The Custodian asserts that the Complainant is able to obtain copies of his own medical records from CMS through the NJDOC’s Health Services Unit.  The Custodian states that a copy of the Complainant’s OPRA request along with her response will be forwarded to the Health Services Unit for processing. 

October 15, 2004
The Complainant files a Denial of Access Complaint with the Government Records Council (“GRC”) claiming that the Custodian improperly denied him access to his own medical records.  The Complainant asserts that the Custodian violated his constitutional and institutional rights under N.J.S.A. 10A: 16 to receive copies of his medical records.  The Complainant further states that he has requested these records twenty-one (21) times and each time has received a negative response from the NJDOC. 

November 23, 2004
The Custodian’s counsel asserts, in the Statement of Information, that the records the Complainant is requesting are medical records and therefore not disclosable under N.J.S.A. 47:1A-9 pursuant to Executive Order 26.  The Custodian’s counsel states that the Complainant received a response indicating that the requested records were not disclosable under OPRA; however, his request would be forwarded to the NJDOC’s Health Services Unit for processing.  The Custodian’s counsel continues to state that the CMS Ombudsman, Carl Ausfahl, notified the Custodian that all medical records, excluding mental health records, were released to the Complainant.  The Custodian’s counsel notes that mental health records are not disclosable unless through a court order.  The Custodian’s counsel further provides that the Ombudsman notified the Custodian stating that the order for the egg crate mattress and braces was provided to the Complainant with a handwritten note of cancellation.    

Analysis

Whether the Custodian properly denied access to the requested records under N.J.S.A. 47:1A-9 pursuant to Executive Order 26. 

N.J.S.A. 47:1A-9 provides that OPRA “…shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to N.J.S.A. 47:1A-1 et seq; any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.”

Executive Order 26 states that “[t]he following records shall not be considered to be government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented: …information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation.” 

The Custodian acted properly in denying access to the requested medical records as Executive Order 26 clearly states that medical records are exempt from disclosure, furthermore, N.J.S.A. 47:1A-9 clearly provides that OPRA will not abrogate an Executive Order of the Governor.  The Custodian informed the Complainant that his records were not accessible under OPRA pursuant to Executive Order 26; however, he would be able to access his own medical records through the NJDOC Health Services Unit.  The Custodian noted that she would forward her letter and the Complainant’s request directly to the NJDOC Health Services Unit as he has indicated that his previous attempts to access his records were unsuccessful. 

The CMS Ombudsman, Carl Ausfahl, notified the Custodian that the Complainant was provided with all of his medical records, except mental health records, which are only released by court order.  The CMS Ombudsman notified the Custodian that the orders for the egg crate mattress and joint braces were provided to the Complainant, however, the cancellations are part of an Electronic Medical Record (“EMR”) and cannot be printed.  The CMS Ombudsman further noted that the staff indicated that the orders were cancelled in a handwritten note on the original order. 

The disclosure of cancellation orders for the egg crate mattress and joint braces do not need to be addressed as they are a part of an EMR and are considered medical records and are not disclosable under N.J.S.A. 47:1A-9 pursuant to Executive Order 26. 

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that the records requested are not disclosable under N.J.S.A. 47:1A-9 pursuant to Executive Order 26 as they are medical records. 

Prepared By:
Approved By:
Paul F. Dice
Executive Director
Government Records Council

February 1, 2005

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