| N.Y. Sup. Ct. | Jul 7, 1980
OPINION OF THE COURT
At the very heart of the judicial function is the choice between, or reconciliation of, competing rights. At times the process becomes a cool and detached assessment of the weight
This matter comes before us as a motion to quash a subpoena duces tecum. The subpoena seeks to obtain mental health records of witnesses called to testify against a mental health facility employee who is charged with patient abuse. These records include both administrative "non-medical” types of information and medical records. The disciplinary hearing has been adjourned pending determination of the issues raised herein. An adverse decision at the disciplinary hearing could result in this employee’s discharge. Said discharge and the resulting stigma therefrom would undoubtedly narrow the future employment opportunities for this individual.
In opposing the release of these records, the State has asserted the right to maintain the confidentiality of these records pursuant to the statutory mandate of section 33.13 of the Mental Hygiene Law, and as privileged information received as an integral part of the sensitive relationship between medical practitioner and patient. (CPLR 4504.)
This court is aware of the unique susceptibility of mental health patients to attacks on their credibility and is especially sensitive to the extremely personal nature of their hospital records. In many respects these records represent a medical expedition into the mental processes of the patient. These records are in reality an imperfect mirror by which one can gaze into the reflected mind of the patient. Our legal tradition has been highly sensitive to violations of a certain zone of personal privacy as an essential starting point for individual liberties. (See Tribe, American Constitutional Law, § 15-3, p 893.) And so our Constitution, with certain exceptions, proscribes warrantless searches and the issuance of "general” warrants. The home is perhaps the historical starting point for the development of a constitutionally protected zone of personal privacy and liberty insulated from unreasonable searches by the government. In a recent decision the United States Supreme Court extended and reviewed its interpretation of this constitutionally protected zone of personal privacy, holding that a State may not attempt to regulate the sex lives of its married citizens. (Griswold v Connecticut, 381 U.S. 479" court="SCOTUS" date_filed="1965-06-07" href="https://app.midpage.ai/document/griswold-v-connecticut-107082?utm_source=webapp" opinion_id="107082">381 US 479.)
In Griswold (supra, pp 484-485) Justice Douglas speaking
"Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
"The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616" court="SCOTUS" date_filed="1886-02-01" href="https://app.midpage.ai/document/boyd-v-united-states-91573?utm_source=webapp" opinion_id="91573">116 U.S. 616, 630, as protection against all governmental invasions 'of the sanctity of a man’s home and the privacies of life.’ We recently referred in Mapp v. Ohio, 367 U.S. 643" court="SCOTUS" date_filed="1961-10-09" href="https://app.midpage.ai/document/mapp-v-ohio-106285?utm_source=webapp" opinion_id="106285">367 U.S. 643, 656, to the Fourth Amendment as creating a 'right to privacy, no less important than any other right carefully and particularly reserved to the people.’ See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U.L. Rev. 216 (1960).”
In accord with Justice Douglas but perhaps more in point for our purposes is Professor Lawrence Tribe’s discussion of the constitutional underpinings of the right to protection of one’s reputation and records. He states at one particularly relevant part of his discussion: "Of course, where exposure of potentially derogatory information about an individual serves a significant governmental purpose, such exposure is not automatically unconstitutional. The key point to note is that a valid and sufficient governmental purpose may not be presumed lightly, since the individual’s right to the protection of his or her good name 'reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual states under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a
If a citizen’s home and sex life are considered to be deserving of special protection, one must ask how much greater protection should be afforded the very private reflections of the human mind ensconced within the records sought herein. Should they not also be protected against warrantless intrusions or "general” warrants? The constitutional limitations placed against warrantless or general searches and intrusions on a citizen’s privacy, of course, operates with respect to "governmental” action. In cases such as the one before us, the information is sought not by government but by a union representing an individual employee. However, the release of this information is, in fact, an act of government which would result in a breach of the affected individual’s zone of personal privacy as surely as if the government was the seeker of this information. The government is, in fact, in the position of a trustee of this highly sensitive data. The United States Supreme Court has stated that: "We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in * * * government files * * * The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures * * * in some circumstances that duty arguably has its roots in the Constitution” (Whalen v Roe, 429 U.S. 589" court="SCOTUS" date_filed="1977-02-22" href="https://app.midpage.ai/document/whalen-v-roe-109592?utm_source=webapp" opinion_id="109592">429 US 589, 605).
The point of the above discussion is not to suggest that the right to the protection of a certain zone of privacy is absolute or that the right to the confidentiality of mental health records is absolute. Constitutionally sound search warrants are issued daily in our country. The point is simply that our Constitution and legal tradition have required special safeguards as protection against unreasonable intrusions into this specially protected starting point of individual privacy and liberty. It is the considered opinion of this court that much of the information sought herein is of such a highly personal nature that it should be embraced within that special area of protected privacy, which should not be breached absent compelling circumstances and proper safeguards. We will return to this point later.
Having noted the rather weighty considerations on the side of the State in seeking to protect these records, let us now
The difficulties arising from the confrontation of the respective position herein would be resolved if the court determined that the witnesses have either expressly or implicitly waived their right to the confidentiality of this data. There is no question that there has been no express waiver by either witness. An implicit waiver of confidentiality of these types of records has been found where a party’s mental condition has been affirmatively put in issue (Koump v Smith, 25 NY2d 287) or where the complaining witness-patient has initiated criminal charges. (Matter of Camacho v Iafrate, 66 AD2d 799.) In our case the witnesses are not parties and seek no civil recovery herein. The employee, who is the subject of this hearing, faces no criminal charge. Under these circumstances, this court is of the opinion that these witnesses must not be required to relinquish the total privacy of their records due to their participation in this hearing.
A distinction might possibly be made between "voluntary” witnesses and subpoenaed witnesses with the former considered to have implicitly "waived” their right to confidentiality. However, the court is of the opinion that this would amount to a distinction in form rather than substance. If this distinction became the rule, all witnesses for the State would simply be routinely subpoenaed in order to protect these records. The full disclosure of these records would be tantamount to the issuance of a "general” warrant to search this highly personal information and as such should not be permitted.
In attempting to resolve the controversy before us, we note that the information sought can be divided into two very distinct categories. The first category is nonmedical administrative type records. The second category would be actual medical records of the patient. None of the weighty arguments
Accordingly, the motion to quash the subpoena duces tecum is granted without prejudice to an application to the court for an order seeking disclosure in accord with the procedure set forth above.