The legal fight over coronavirus data from New York nursing homes is putting a spotlight on weaknesses in the state’s Freedom of Information Law.

In theory, the law, known as FOIL, requires the Health Department to promptly release public data, such as the full count of pandemic deaths in nursing homes that has been requested by the Empire Center and others.

In practice, the law gives officials wide latitude to postpone fulfilling FOIL requests – and many agencies, including the Health Department, often stretch out the process for months or even years.

How those delaying tactics work is illustrated in the state’s response to Empire Center’s lawsuit seeking the full count of coronavirus deaths in nursing homes.

Since early in the pandemic, the Health Department has been collecting data on all nursing home residents who died of coronavirus, but publicly reporting only deaths that occur physically within the facilities.

This unusual methodology leaves out potentially thousands of residents who were sent to hospitals before dying, and gives a distorted picture of the pandemic’s impact on a vulnerable population.

On Aug. 3, the Empire Center submitted a FOIL request for the full toll among nursing home residents, including those sent to hospitals, broken down by date and facility.

A few weeks later, the Health Department said it could provide the numbers no sooner than Nov. 5, three months after the initial request. The Empire Center appealed that decision and, when the appeal was denied, filed suit in state Supreme Court in Albany, with legal representation from the Government Justice Center.

In legal papers filed Monday, the state attorney general’s office, which is representing DOH, made the case that the three-month delay was legal and reasonable under the circumstances.

Among other arguments, the papers cite the “voluminous nature of the documents that had to be located and reviewed by staff already burdened with addressing the COVID-19 pandemic” and the need to remove personal details that would violate the privacy of those who died:

Petitioner’s claim that the HERDS data can easily be compiled and produced is inaccurate and ignores the reality of providing this information in response to a FOIL request. The raw data and any requested information requires reconciliation before the records are provided to the Records Access Office for further review before release. Furthermore, the records Petitioner requested contain information that requires review for exemptions under FOIL, e.g. protected health information. Given the enormous amount of requested information and its sensitive nature, DOH needed additional time beyond August 31, 2020 to review the information for privilege and exemptions and to redact or determine to withhold the records in accordance with [Public Officers Law] § 87(2).

These arguments are hard to square with the known facts.

Since early in the pandemic, the state has required nursing homes to file daily reports of COVID-19 statistics through its on-line Health Emergency Response Data System, or HERDS. Questions 4a and 4b on the HERDS data entry form ask homes to report the numbers of coronavirus deaths within the facilities, both confirmed and presumed, and Question 5 asks for the number of residents who died outside the facilities, in hospitals or elsewhere. Presumably, all of this information has been flowing into a Health Department database.

The state has been posting data from the first two questions on a routine basis, broken down by facility. The Empire Center is effectively asking for the same data from the third question – numbers reported by the same institutions, in the same way, at the same time and through the same on-line system. 

The request does not seek names or other identifying information, just numbers the state could and should have been posting all along. There’s no obvious reason why pulling that information from a pre-existing database should take three months or more.

Another issue with the state’s case involves the details of its letter deferring the request to Nov. 5. When agencies postpone fulfilling a request for public records, FOIL requires them to provide a reason for the delay and a “date certain” when the records will be made available.

In this case, the state’s reason was that “a diligent search for responsive documents is still being conducted” – which seems unlikely, since the existence of the HERDS database is a matter of public knowledge.

And rather than setting a hard deadline, the letter provided only an estimated completion date, and made clear that DOH might seek further extensions.

The state’s legal papers do not explain the “diligent search” claim. As for the timeline, the state cites a section of FOIL that permits setting an “approximate” due date when the agency has not yet determined whether the records are subject to public release. That’s a questionable rationale in this case, given the clearly public nature of the records requested.

This case is more politically sensitive than most, but these tactics and arguments are not unusual. It’s common for the Health Department and other agencies to issue multiple extension letters, stretching over many months, before finally providing the requested records.

People seeking public records have no way to force prompt compliance with FOIL other than going to court, which can be expensive and does not guarantee success.

As a result, the government can selectively hold back information it doesn’t want the public to know. In this case, Governor Cuomo and his aides have repeatedly used the state’s official tally of nursing home deaths – which currently stands at about 6,700 – to argue that New York handled the pandemic better than most states, without explaining that its tally omits thousands of victims.

The public is clearly entitled to know the full impact of coronavirus in nursing homes. The only question is when the Cuomo administration will choose to comply with the law and finally share the whole truth.

About the Author

Bill Hammond

As the Empire Center’s senior fellow for health policy, Bill Hammond tracks fast-moving developments in New York’s massive health care industry, with a focus on how decisions made in Albany and Washington affect the well-being of patients, providers, taxpayers and the state’s economy.

Read more by Bill Hammond

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