FOIL saves lives


When government officials complain about the burdens associated with dealing with requests under the Freedom of Information Law, known by many in New York as “FOIL”, I’ve suggested that they stop complaining, because FOIL saves money.

Consider this: when a government agency solicits bids, and potential vendors or service providers use FOIL to obtain the existing contract or the winning bid used to award the current contract, what they’re thinking is, “government, we can make you a better deal.” Those better deals for state agencies, counties, cities, towns and school districts save the government and taxpayers millions.

Perhaps more striking is a recent article published by the Albany Times Union that led to the conclusion that FOIL saves lives.

In the late 1980s, the former commissioner of the Department of Health (DOH) was concerned about the wide range of death rates for heart bypass surgery at hospitals in New York. He believed that quality issues were significant and had his staff develop a cardiac surgery registry to track patient mortality by age and health in order to evaluate doctors’ performance.

When the first report was prepared, DOH disclosed the data as it pertained to hospitals. A reporter for Newsday, the daily Long Island newspaper, wanted to go further and requested “physician-level data” from DOH under FOIL. The request was denied, and I was asked for an advisory opinion.

I have been fortunate to have worked for the Committee on Open Government, a unit of the New York State Department of State that was created as part of our FOIL, since its inception in 1974. Our primary function involves providing guidance and advisory opinions to anyone having questions regarding public access to government information in New York.

Our law, like others, authorizes an agency to withhold records when disclosure would constitute “an unwarranted invasion of personal privacy.” My contention was that the data did not involve “personal” information, but rather that it pertained to physicians acting in their professional capacities. Newsday used the opinion when it challenged the denial of access in court, and the court agreed that the data must be disclosed.

Sometimes we don’t learn of the fruits of our labors — or in this case, the benefits of disclosure — for years. New York became the first state in the nation to release death rates for each hospital and physician, and “the public scrutiny was motivating.” A cardiologist at the Albany Medical College said that “Physicians are Type A personalities”, and that “they want to do the best thing for their patients, so they take this stuff very seriously.”

As a result of disclosure of the data, the Times-Union reported that some doctors were “forced out, while some left voluntarily when they saw their numbers stacked up against those of their peers.” A DOH official said that “hospitals have even told us that they were glad they had this report to use as ammunition.”

As stated by the current commissioner at DOH, “This is probably one of the most underreported and most valuable pieces of work that the Department of Health has been doing for decades and the people of New York have benefited as a result — and no one knows of it.”

No one, that is, but readers of the recent article, and more importantly, hospitals and doctors.

Sometimes the benefits of FOIL are widely known, but sometimes they’re not, even when, as in this instance, FOIL has saved lives.

Robert J. Freeman is executive director of the Committee on Open Government at New York State Department of State in Albany.