The public has a right to know the process of governmental decision-making, such as its oversight, inspection, and compliance review of hospitals, and to review the data and evidence leading to its determinations. This was the spirit with which the New York State Freedom of Information Law (FOIL) was enacted in 1977. The legislature declared then that "a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions." Public Officers Law, §84. In other words, as the New York Court of Appeals ruled, the public has an "inherent right to know." Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (NY 1979).

However, despite this long-time mandate for openness, the cloak of secrecy continues to block public access to certain information. Specifically, we are woefully not informed about the spread of bacterial infections within our health care facilities such as hospitals and nursing homes.

The lack of transparency puts patients at risk, some say. On the other side, hospital and nursing home administrators say that full disclosure could scare people away from seeking needed medical care. This dilemma was analyzed in a recent New York Times article, "Culture of Secrecy Shields Hospitals With Outbreaks of Drug-Resistant Infections," and a follow-up article, "New York Identifies Hospitals and Nursing Homes With Deadly Fungus."

These articles center on outbreaks of drug-resistant bacteria in New York hospitals. The worry is that if public disclosure of these infectious outbreaks is prematurely conducted, it could result in mass hysteria and irrational aversion to hospitals. On the other side of the scale, however, is the very real possibility that prompt disclosure may save lives. Hospitals that cannot conceal their problems will address them most seriously and promptly, and in this sense, transparency gives citizens more information to make decisions for their own safety. In other words, public disclosure means accountability, thereby pressuring health care facilities to change the way in which they deal with infection control, and incentivizing them to take immediate and effective corrective actions. Moreover, patients' knowledge and self-advocacy based on such knowledge can serve as a bridge between hospital policy and patient safety. William M. Sage, "Medical Liability and Patient Safety," Health Affairs, Vol. 22, No. 4.

Of course, it should be acknowledged that full disclosure can be a tricky goal to meet. Art Caplan, a bioethicist at the NYU School of Medicine, said: "If you're a hospital of last resort, you're going to see repeat customers with tough infections, many of them drug resistant." Therefore, if these hospitals are pushed to fully and promptly disclose infections in their facilities, it may lead to an exaggerated sense of paranoia and concern that these hospitals are causing or spreading the infections. Nevertheless, Mr. Caplan thought there was a greater value in promoting transparency. Public awareness about the lives lost to drug resistant infections, he said, "could pressure hospitals to change the way they deal with infection control." In the end, patients' right to know is an essential factor to effectively addressing frailties in our health care system.

New York law strongly favors disclosure of government records. The FOIL is based on the overriding policy consideration that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government." Fink, 47 N.Y.2d at 571. The Court of Appeals has repeatedly held that the Freedom of Information Law is to be liberally construed and its exemptions narrowly interpreted, so that the public is granted "maximum access" to the government records. See id. All agency records are presumptively available for public inspection and copying, unless the documents in question fall "squarely within the ambit" of one of the enumerated exemptions set forth in Public Officers Law §87 (2). Fink, 47 N.Y.2d at 571.

Clearly, our elected legislature believes that the public, and especially the patients who entrust their health to a health care facility, have the right to know whether the facility observed its duty to prevent, detect, and eliminate an infectious disease on its premises. But there is an understandable resistance from the people who work for these facilities. For example, in California, a Democratic State Senator Jerry Hill found himself stymied in his effort to improve the industry's reporting on drug-resistant infections. A bill that he introduced in the State Legislature would have required California hospitals to regularly disclose resistant infections and deaths that occur on their premises. In 2017, the Senate passed the bill, 40 to 0, but it had powerful opponents including the California Hospital Association, the Infectious Disease Association of California and the state's Department of Health. The bill then moved to the Assembly, where it was stalled for lack of support.

Hospital administrators' resistance to disclosure of information is generally shared by public health officials. Dr. Tina Tan, the top epidemiologist at the New Jersey Department of Health says that the emphasis on greater transparency is misguided. She argues that most people are at low risk for exposure and public disclosure could scare these people away from seeking needed medical care. "That could pose greater health risks than that of the organism itself," according to Dr. Tan.

Interestingly, the U.S. Center for Disease Control (the CDC) made a public announcement when an antibiotic-resistant form of the rod-shaped Pseudomonas aeruginosa bacteria sickened several American travelers to Mexico. Yet, the CDC applies a double standard. It will not make public announcements when hospitals and nursing homes in the United States are battling infectious outbreaks. We are told that the CDC is in fact barred from publicly identifying health care facilities that are battling to contain the spread of dangerous or infectious pathogens, due to its 'agreement' with these facilities.

The legal issue is, in balance, what is more important. Is it our legal right as adult citizens to make decisions affecting our own health, or is it our government's job to be the 'big brother' and determine for us what is best for us? An analogy could be made with what happened after 9/11, in that the continuing carcinogenic risks near the World Trade Center site were kept hidden by the government. Government agencies that evaluated the toxic air quality and health issues in downtown Manhattan in the days and weeks after 9/11 told the public that there was no real danger to their health. As a result, the real dangers due to environmental contamination were not communicated, and people freely traveled to the site. To this very day, victims are making claims of illness due to carcinogenic exposure. An investigation report by the Inspector General released on Aug. 21, 2003 noted this deficiency in communication to the public and urged that a better job should be done in the future. Office of Inspector General, "Evaluation Report: EPA's Response to the World Trade Center Collapse: Challenges, Successes, and Areas for Improvement." As that report stated, the government agencies including the EPA "must be prepared to take a leadership role … in fulfilling its mission of 'protecting human health and the environment,' if another large-scale disaster occurs," which would include informing the public so that they would know to keep away from the site of contamination.

There are many instances where hospitals and local health officials hid an infectious epidemic even when disclosure could have saved lives. Between 2012 and 2014, more than three dozen people at a Seattle hospital were infected with a drug-resistant organism they got from a contaminated medical scope. Eighteen of them died, but the hospital, Virginia Mason Medical Center, did not disclose the outbreak, saying at the time that it did not see the need to do so!

Perhaps we are becoming more enlightened. Recently, New York health officials said that they decided to break with that practice of secrecy and disclose the names of the hospitals and nursing homes with cases of Candida Auris epidemic. Their aim, they said, was to provide transparency to medical consumers and to encourage hospitals and nursing homes to help stop the spread of this particular bacterial pathogen.

Isn't it our right to know and thereby to make our own choices regarding what dangers to avoid? It stands to reason that the government and the health care facilities should not be keeping information about epidemics from the public. If the public knows, shouldn't that motivate these agencies and institutions to do a better job until they get it right? If there is no public feedback, then there is less incentive to correct problems as quickly as possible.

Art Caplan, the bioethicist, makes this point best. "Who's speaking up for the baby that got the flu from a hospital worker or for the patient who got MRSA from a bedrail?" he asked, referring to a potentially deadly bacterial infection known as Methicillin-Resistant Staphylococcus Aureus. "The idea isn't to embarrass or humiliate anyone, but if we don't draw more attention to infectious disease outbreaks, nothing is going to change." As an old saying by Justice Luis Brandeis goes, sunlight often is the best disinfectant.

Jaehyun Oh is an attorney and Alan Fuchsberg is managing partner at Jacob Fuchsberg Law Firm.