Grattan v. People — 65 N.Y. 243

Majority

p. 243

In the Matter of William A. Grattan, as Commissioner of Health of the Albany County Health Department, Appellant, v The People of the State of New York, Respondent.

Argued April 30, 1985;

decided June 4, 1985

p. 244

POINTS OF COUNSEL

Matthew J. Clyne for appellant.

I. The records in question were created under and are protected by a statutory confidentiality which cannot be unilaterally waived. (McGowan v Metropolitan Life Ins. Co., 234 App Div 366 ; Estro Chem. Co. v Falk, 303 NY 83 ; Selzer v Baker, 295 NY 145 ; Marcus Assoc. v Town of Huntington, 45 NY2d 501 ; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556 ; Matter of Bakers Mut. Ins. Co. (Department of Health], 301 NY 21 .) II. The records in question are not discoverable by virtue of CPLR 4504 (b). (East End Trust Co. v Otten, 255 NY 283 ; Matter of Murray Hill Bank, 153 NY 199 .) III. The records in question are immune from Grand Jury scrutiny. (People ex rel. Livingston v Wyatt, 186 NY 383 ; People v Doe, 84 AD2d 182 ; Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, 44 NY2d 575 ; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130 .)

Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.

The 16-year-old sexual crime victim had an inherent right to release her records for the District Attorney. (McGowan v Metropolitan Life Ins. Co., 234 App Div 366 ; Matter of Glazer v Department of Hosps., 2 Misc 2d 207 ; Matter of Van Allen v McCleary, 27 Misc 2d 81 ; Seligman v Friedlander, 199 NY 373 ; People v Gissendanner, 48 NY2d 543 ; Matter of State of New York Div. for Youth v Horan, 56 AD2d 632 ; Davis v Alaska, 415 US 308 ; Williams v Williams, 23 NY2d 592 ; Matter of Albano v Kirby, 36 NY2d 526 ; Carr v Schnid, 105 Misc 645 .)

OPINION OF THE COURT

The confidentiality provided by Public Health Law § 2306 for information regarding sexually transmissible diseases is not defeated simply by consent of the source to release the information.

The subpoena in question directed appellant, Commissioner of the Albany County Department of Health, to produce for the Grand Jury all records held by the Bureau of Sexually Transmissible Diseases concerning Tamara B., a 16 year old who had several months earlier been interviewed by the Bureau

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regarding certain sexual contacts.^[1] Appellant moved to quash the subpoena on the basis of Public Health Law § 2306, which provides: “All reports or information secured by a board of health or health officer under the provisions of this article shall be confidential except in so far as is necessary to carry out the purposes of this article.” In opposition, respondent contended first, that there was a possibility of a crime under Penal Law § 130.00; second, that the information was needed by respondent “to refresh [Tamara’s] recollection, because her recollection as to what was said in February is not one hundred percent”; and third, that she had signed a “Medical Authorization” form permitting any person who had attended or examined her to furnish the District Attorney with records regarding her condition or treatment. No issue is raised as to Tamara’s competence to waive her right to confidentiality, or the scope of the waiver. The court denied the motion to quash, but limited the subpoena to direct interviews with Tamara or notes of interviews with her. The Appellate Division affirmed, reasoning that the benefit of the confidentiality created by Public Health Law § 2306 belongs to the disease sufferer, who in this case waived the benefit. We now reverse.

Article 23 of the Public Health Law (“Control of Sexually Transmissible Diseases”) was enacted for the protection of the public. To promote the detection and eradication of sexually communicable diseases, the statute requires certain examinations, provides for isolation and treatment, and includes criminal penalties (Public Health Law §§ 2307, 2309). The requirement of confidentiality (Public Health Law § 2306)^[2] is integral to a statutory scheme designed to encourage afflicted persons to seek and secure treatment, which in the case of communicable disease serves individual interests as well as those of society.

We disagree with the observation of the court below that the benefit of the statutory provision for confidentiality is limited to the disease sufferer, and may simply be waived by her. In situations where public disclosures are embarrassing, the assurance of secrecy offered by the Board of Health not only encourages an individual disease sufferer to come forward for treat

1 While the Grand Jury has been disbanded, we exercise our discretion not to dismiss this appeal for mootness because of the public importance of the issue, its potential for evading review, and the likelihood of its recurrence (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707 , 714-715).

2 The statute originally provided for absolute confidentiality (see, L 1918, ch 264, § 1 [adding Public Health Law § 343-r]). Deletion of the word “absolutely,” however, reflected no substantive change (see, L 1953, ch 879; State Health Department Memorandum, 1953 NY Legis Ann, at 201-202).

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ment but also fosters a public perception that necessarily results in a greater willingness of others to cooperate. We therefore conclude that, in view of the public interest that the program have the appearance of inviolable trust, an individual’s consent to release of records will not in every case be sufficient to override the statutory confidentiality (see, e.g., McGowan v Metropolitan Life Ins. Co., 234 App Div 366 , appeal dismissed 259 NY 454 ).

In support of releasing the records, respondent points both to the requirement of CPLR 4504 (b) that a physician disclose information indicating that a patient under the age of 16 has been the victim of a crime, and to a legitimate public interest in the prosecution of crime. CPLR 4504 (b) is directed to the physician-patient privilege, which was not invoked in this case. Indeed, such a contention would not even find factual support in the record. Respondent, in support of his second argument, has made an inadequate showing that the identity of Tamara’s contacts could not have been procured by less intrusive means. At least on this record, there is no basis for overriding the confidentiality which the Legislature has provided by section 2306 of the Public Health Law.

Accordingly, the order of the Appellate Division should be reversed, with costs, and appellant’s motion to quash the subpoena granted.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in Per Curiam opinion; Judge Titone taking no part.

Order reversed, etc.

Cases cited

Estro Chemical Co. v. Falk 303 NY 83 N.Y. 1951-07-11 p. 244
Selzer v. Baker 295 NY 145 N.Y. 1946-01-24 p. 244
Marcus Associates, Inc. v. Town of Huntington 45 NY2d 501 N.Y. 1978-10-26 p. 244
Carr v. New York State Board of Elections 40 NY2d 556 N.Y. 1976-10-21 p. 244
In re Bakers Mutual Insurance 301 NY 21 N.Y. 1950-04-13 p. 244
East End Trust Co. v. Otten 255 NY 283 N.Y. 1931-01-06 p. 244
In re Murray Hill Bank 153 NY 199 N.Y. 1897-06-08 p. 244
People ex rel. Livingston v. Wyatt 186 NY 383 N.Y. 1906-11-20 p. 244
People v. Doe 84 AD2d 182 N.Y. App. Div. 1981-12-31 p. 244
In re Grand Jury Investigation of Onondaga County 59 NY2d 130 N.Y. 1983-06-07 p. 244
Glazer v. Department of Hospitals 2 Misc 2d 207 N.Y. Sup. Ct. 1956-02-16 p. 244
Van Allen v. McCleary 27 Misc 2d 81 N.Y. Sup. Ct. 1961-01-18 p. 244
Seligman v. Friedlander 199 NY 373 N.Y. 1910-10-25 p. 244
People v. Gissendanner 48 NY2d 543 N.Y. 1979-12-17 p. 244
Davis v. Alaska 415 US 308 SCOTUS 1974-02-27 p. 244
Williams v. Williams 23 NY2d 592 N.Y. 1969-01-23 p. 244
Albano v. Kirby 36 NY2d 526 N.Y. 1975-05-07 p. 244
McGowan v. Metropolitan Life Insurance 259 NY 454 N.Y. 1932-07-19 p. 246