In the Matter of New York Public Interest Research Group, Inc., Petitioner,
Neal L. Cohen, as Commissioner of the New York City Department of Health, et al., Respondents.
Andrew Goldberg and Keri Powell, New York City, for petitioner.
Michael D. Hess, Corporation Counsel of New York City (Gabriel Taussig and Mark W. Muschenheim of counsel), for respondents.
Laurel W. Eisner and Elisa Velazquez for Mark Green, as New York City Public Advocate, amicus curiae.
Edward H. Lehner, J.
Petitioner commenced this CPLR article 78 proceeding pursuant
to the Freedom of Information Law (FOIL) to compel respondents, the New York City Department of Health (DOH) and its Commissioner, to provide records concerning childhood blood lead level screening.T he central issue raised is whether requiring the DOH to program its computers to expunge confidential information from a list of individual blood level tests amounts to mandating that the agency create a new " record," as that term is used in section 89 (3) of the Public Officers Law.
In 1992 the Legislature enacted title X of the Public Health Law, which requires the State Health Department (the Department) to " promulgate and enforce regulations for screening children ... for lead poisoning, and for follow up of children ... who have elevated blood lead levels" (§ 1370-a  [a]). The Department " is authorized to promulgate regulations establishing the means by which and the intervals at which children ... shall be screened for elevated lead levels" (§ 1370-c ). Pursuant to such authority, the Department enacted regulations requiring the annual screening of all children under six years of age (10 NYCRR 67-1.2).
The DOH now possesses approximately two million electronic records comprising individual blood tests from 1995 to 1999. These records include: child's name; birth date; sex; race/ethnicity; address; telephone number; blood lead level test result; type of test; dates of test; parent/guardian name; provider name and address; and laboratory name and address.
By letter dated October 2, 1998, an official of petitioner made the following request of the Records Access Officer at the DOH:
" In accordance with the New York State and City Freedom of Information Laws, please provide me with copies of all data, studies, records and reports concerning the 1997 data for childhood blood-lead screening levels for New York State and, in particular, for New York City."
The letter stated that petitioner was seeking this information because it wanted to provide testimony at a public hearing before the New York City Council. In response, DOH informed petitioner, by letter dated December 14, 1998, that its Lead Poisoning Prevention Program was developing a new computer system which is expected to be ready by January ...