March 17, 2016

Ms. Patti Singer

Clean Living Reporter
Democrat and Chronicle
55 Exchange Boulevard
Rochester, NY 14614-2071
Via email: psinger@gannett.com
Re:

FOIL Appeal # 16-01-218

Dear Ms. Singer:

This letter resolves your administrative appeal to the New York State Department
of Health (DOH) related to your request for certain records pursuant to the Freedom of
Information Law (FOIL), Public Officers Law (POL) Article 6.
Procedural Background
On January 19, 2016, you requested from DOH, under FOIL, the following:
1. The names and specialties of physicians in each of Monroe, Livingston, Ontario,
Wayne and Genesee counties who have completed the online training under Medical
Marijuana Program as of Jan. 20, 2016;
2. The names and specialties of physicians in Monroe, Livingston, Ontario, Wayne and
Genesee counties who have registered with the state to certify patients to receive
medical marijuana as of Jan. 20, 2016;
3. The number of patients in each of Monroe, Livingston, Ontario, Wayne and Genesee
counties who have been certified by physicians to receive medical marijuana and
registered with the state as of Jan. 20, 2016.
DOHs Records Access Office (RAO) responded to your request on February 18, 2016
by informing you that the records you requested (in parts numbers 1 and 2) had been withheld
pursuant to POL 87(2)(a), (f), and 96 and that DOH does not maintain records responsive to
part number 3 of your request.
On February 25, 2016, DOH received your appeal herein as to parts 1 and 2 of
your request (you did not appeal regarding part 3). You agreed to extend the due date
for this response by one week, to March 17, 2016.

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Legal Analysis
As an initial matter, you dispute the RAOs determination under POL 87(2)(f) to
withhold release of the records in parts 1 and 2 of your request. POL 87(2)(f) provides
that an agency may deny records that if disclosed could endanger the life or safety of
any person. To establish that records fall under this exception, an agency is not
required to prove that a danger to a persons life or safety will occur if the information is
made public. . . . Rather, there need only be a possibility that such information would
endanger the lives or safety of individuals. Stronza v Hoke, 148 AD2d 900, 901
(emphasis added).
Here, disclosing records containing the names and specialties of registered
physicians would endanger the life and safety of physicians, their employees, and their
patients. It is undisputed that physicians participating in medical marijuana programs in
other states have been the target of armed robberies. See e.g., CBS Sacramento,
Sacramento Medical-Marijuana Doctors Office Hit By Armed Robbers, August 21,
2013; Associated Press, Criminals Target Medical Marijuana, Mar. 18, 2010; Channel
4, NBC Los Angeles, Another L.A. Pot Clinic Hit By Robbers, Sept. 19, 2009.
Transgressors who misperceive the mechanics of the New York Medical Marijuana
Program and believe that registered physicians have marijuana available in their offices
pose a significant safety risk. New York is not alone in determining that disclosure will
pose a threat to life and safety. Twenty-three of twenty-four other jurisdictions with
medical marijuana programs do not publically provide a list of participating doctors. The
Department of Health must prioritize the life and safety of the practitioners who are
voluntarily participating in the States Medical Marijuana Program. Accordingly, these
records may be withheld under POL 87(2)(f).
Next, you dispute the application of POL 96 (the Personal Privacy Protection
Law) to withhold the records that you requested. The Personal Privacy Protection Law
(PPPL) defines "personal information" as any information concerning a data subject
which, because of name, number, symbol, mark or other identifier, can be used to
identify that data subject. POL 92(7). The names and specialties of physicians falls
within this definition.
Under the PPPL, an agency is prohibited from disclosing personal information
unless such disclosure is pursuant to a written request by or the voluntary written
consent of the data subject. (Emphasis added.) DOH is authorized to disclose the
names of the physicians that provided such consent, but only within the scope of the
consent that was provided.
Here, physicians who successfully complete the required DOH Medical
Marijuana four-hour course and who register with the DOH to certify patients for the use
of medical marijuana have the option of consenting to disclose their names. Only
approximately one-third of the eligible physicians, however, actually provided consent,
and their written consent expressed their understanding that DOH would make their
information accessible to physicians, nurse practitioners, and licensed health care
practitioners through the Departments Health Commerce System. The DOH Health
Commerce System is an online platform accessible exclusively by New York-licensed
practitioners, not the general public. Providing consent to appear within this limited
platform does not equate to broad public disclosure of the identities of these physicians.
See Irwin v Onondaga County Resource Recovery Agency et al, 72 AD3d 314 (4th

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Dept., 2010); Committee on Open Government Advisory Opinion No. 10530 (consent for
one limited purpose does not serve as a blanket waiver of all privacy rights).
Determination
For the reasons stated above, the records were properly withheld and your
appeal is denied in its entirety. Judicial review of this decision may be obtained pursuant
to CPLR Article 78.
Sincerely,

David J. Spellman
David J. Spellman
DOH Records Access Appeals Officer
cc:

Robert J. Freeman, Executive Director, NYS Committee on Open Government