documents relating to the court-ordered unsealing of adoptee birth certificates

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Request Title: documents relating to the court-ordered unsealing of adoptee birth certificates

Request Description: To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

documents relating to the court-ordered unsealing, issuance, release, or divulgence of adoptee birth certificates (it is of course perfectly fine to redact all personally identifying information regarding the adoptees and their parents). This would include, but not be limited to:

• Copies of such court orders received by NYC Department of Health and Mental Hygiene

• Letters sent to adoptees informing them of the unsealing and release of their birth certificates

• All policies, procedures, guidelines, reports, and memos relating to the court-ordered unsealing of adoptees’ birth certificates

The time frame for my request is January 1, 1960, to December 31, 1969, inclusive.

If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Christopher Philippo

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Requester's Contact Information



Name:
Christopher Philippo

Title:
Not provided

Organization:
Not provided

Email:
requests@muckrock.com (mailto:requests@muckrock.com)

Phone Number:
Not provided

Fax Number:
Not provided

Street Address (line 1):
Not provided

Street Address (line 2):
Not provided

City:
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State:
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Zip Code:
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Please contact the Department of Health and Mental Hygiene (DOHMH) via email at foil@health.nyc.gov
for any further information. (mailto:foil@health.nyc.gov)

Dear Mr. Philippo:

The NYC Department of Health and Mental Hygiene acknowledges receipt of your Freedom of Information Law request and has assigned it the control number noted above. A search will be conducted for responsive documents available to you under the law and you should receive a response within 20 business days. Please note that, as of January 1, 2019, the Department charges the statutorily allowable fee of 25¢ per page for FOIL responses of records maintained only in hard copy format.

Thank you,

Bernadette O'Donnell
Records Access Officer / Agency Attorney
NYC Department of Health and Mental Hygiene
42-09 28th St., CN 14-29
Long Island City, NY 11101

Dear Mr. Philippo:

The NYC Department of Health and Mental Hygiene has denied your Freedom of Information Law (NYS Public Officers Law, "FOIL") request for documents related to "court-ordered issuance, release, or divulgence of adoptee birth certificates" from "January 1, 1960, to December 31, 1969, inclusive." Your request is denied for the following reasons:

1. It does not reasonably describe the records sought in that the Department's filing, indexing, and records retrieval mechanisms do not allow us to locate and identify the records sought pursuant to FOIL § 89(3)(a). In the current matter, the records sought are not stored in any manner that would allow their identification. There is no data system or list that contains the names of the relevant adoptees. The records are no longer sealed, so they are not stored in a separate place from the tens of thousands of births registered in New York City every year. Thus, locating the records requested would require individual review of the more than 1.5 million birth records for the years in question (see, https://www1.nyc.gov/assets/doh/downloads/pdf/vs/1969sum.pdf) for a very much smaller subset of responsive records, truly the proverbial search for a needle in a haystack.
2. Even if the request could be considered to reasonably describe the records sought, response would be unduly burdensome on the Department within the meaning of FOIL § 89(3)(a). Each birth record file would have to be located and reviewed. Even if each of the 1.5 million records took a single minute to review, more than 752 weeks of fulltime work, more than 14 full years of employee time, would be required to locate the responsive records. It is neither reasonable nor feasible for DOHMH to expend this level of resources to respond to a single FOIL request. Moreover, it hiring an outside firm is not feasible as the time required to provide a response is not related to copying the records but rather to reviewing them given their highly confidential nature.
3. To release the information requested would be an unwarranted invasion of personal privacy pursuant to FOIL §§ 87(2)(b) and 89(2)(b). In general, these provisions require a balancing test, and warrant a finding of an unwarranted invasion where privacy interests outweigh the public interest in disclosure of the information. The records at issue here are the most personal types of all: they include medical information as well as other types of data that go to the heart of a person's identity. The fact that a court ordered unsealing for the adoptee or his/her representative does not create a public record subject to release. Moreover, it is not possible to redact these records to ensure that any person named in the documents would be re-identified and have any information remain.
4. New York City Health Code ("Health Code") § 207.21 protects the records sought from public release until 125 years after the birth, which has not yet arrived for persons born in the 1960s. Health Code § 207.11 further provides that inspection of vital records whose time for public release has not yet arrived may only be permitted for a "proper purpose", and that "the collection of information for sale or release to the public" is not a "proper purpose". In addition, section 17-112 of the New York City Administrative Code ("Ad Code") explicitly authorizes the Department of Health and Mental Hygiene to "establish reasonable regulations as to the publicity" of any of its records, including vital records, and section 558 of the New York City Charter authorizes the Board of Health to "add to and alter, amend or repeal any part of the health code." This Ad Code provision, in turn, derives from the Greater New York Charter (a predecessor to provisions of the present Charter and Ad Code), which was enacted by the State Legislature, while Charter section 558 was adopted as part of the 1938 New York City Charter, which has been held to have the force of State law. As such, both provisions represent State policy. The NYS Public Health Law ("PHL") further supports denial of this request on the basis of these Charter and Ad Code provisions: PHL § 4104 specifically exempts New York City from PHL § 4174(1)(b), which enumerates certain instances where the NYS Commissioner of Health is authorized to release birth records. Indeed, § 4104 clearly contemplates that New York City, will set appropriate standards for release of birth records. The current City provisions with regard to birth records therefore reflect State policy that the Board of Health (pursuant to City Charter § 558) regulate vital records in the City of New York and have the force of State law. The request is therefore denied pursuant to Health Code § 207.21 and FOIL § 87(2)(a).
You may file a written appeal of this denial within 30 days of the date of this message. The appeal should be addressed to:
Thomas Merrill, Esquire
Appeals Officer & General Counsel
42-09 28th Street, CN-30
Long Island City, NY 11101
recordsaccess@health.nyc.gov<mailto:recordsaccess@health.nyc.gov>
The notice of appeal should include the request control number, the date of this denial message, a description of the records that were the subject of the request, the specific legal grounds for your appeal, and the full name and address of the original requester.

Bernadette O'Donnell
Records Access Officer / Agency Attorney
NYC Department of Health and Mental Hygiene
42-09 28th St., CN 14-29
Long Island City, NY 11101

Sent from the New York City Department of Health & Mental Hygiene. This email and any files transmitted with it may contain confidential information and are intended solely for the use of the individual or entity to whom they are addressed. This footnote also confirms that this email message has been swept for the presence of computer viruses.