
    [723 NE2d 1016, 702 NYS2d 231]
    Katherine F., an Infant, by Her Mother and Natural Guardian Kathleen Perez, et al., Appellants, v State of New York, Respondent.
    Argued October 13, 1999;
    decided November 30, 1999
    
      POINTS OF COUNSEL
    
      Brand, Brand & Burke, New York City (Michael H. Zhu of counsel), for appellants.
    Investigation reports filed pursuant to Mental Hygiene Law § 29.29 which are not a part of an institution’s medical review or quality assurance review function are not exempt from disclosure under Education Law § 6527 (3). (Swartzenberg v Trivedi, 189 AD2d 151; Matter of Albany Med. Ctr. Hosp. v Denis, 161 AD2d 1030; Larsson v Mithallal, 72 AD2d 806; Lilly v Turecki, 112 AD2d 788; Matter of Kristen K. v Children’s Hosp., 204 AD2d 1009; Armenia v Blue Cross, 190 AD2d 1025; Elmer v State of New York, 179 AD2d 1000; Feig v Lenox Hill Hosp., 167 Misc 2d 42, 236 AD2d 897; Brathwaite v State of New York, 208 AD2d 231; Smith v State of New York, 181 AD2d 227.)
    
      Eliot Spitzer, Attorney General, Albany (Gina M. Ciccone, Preeta D. Bansal and Peter H. Schiff of counsel), for respondent.
    The Court below correctly held that defendant’s investigation file is exempt from disclosure because the contents of the file are privileged under Education Law § 6527 (3) and Mental Hygiene Law § 29.29. (Logue v Velez, 92 NY2d 13; Brathwaite v State of New York, 208 AD2d 231; Smith v State of New York, 181 AD2d 227; Elmer v State of New York, 179 AD2d 1000; Zion v New York Hosp., 183 AD2d 386, 81 NY2d 881; Matter of Kristen K. v Children’s Hosp., 204 AD2d 1009; Carter v County of Erie, 255 AD2d 984; Feig v Lenox Hill Hosp., 167 Misc 2d 42, 236 AD2d 897; Cirale v 80 Pine St. Corp., 35 NY2d 113; Brady v Ottaway Newspapers, 97 AD2d 451, 63 NY2d 1031.)
    
      
      New York Lawyers for the Public Interest, New York City (John A. Gresham, Dennis Boyd and Marianne Engelman Lado of counsel), Winston & Strawn (Daniel R. Murdock and Jeremy F. Manning of counsel) and Mental Hygiene Legal Service (Marvin Bernstein of counsel), for Center for Independence of the Disabled in New York and others, amici curiae.
    
    I. The origins and language of Education Law § 6527 (3), and the negative inference created by what it does not say, compel the conclusion that it shields from disclosure only records prepared to evaluate the quality of medical care. (Logue v Velez, 92 NY2d 13; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; Matter of Kristen K. v Children’s Hosp., 204 AD2d 1009; Carter v County of Erie, 255 AD2d 984; Feig v Lenox Hill Hosp., 167 Misc 2d 42.) II. It is entirely consistent with legislation concerning other privileges and concerning medical malpractice for the Legislature to have limited the exemption of section 6527 (3) from disclosure to records concerning the quality of medical care. (Matter of Ford v Civil Serv. Empls. Assn., 94 AD2d 262, 62 NY2d 603; People v Gomez, 112 AD2d 445; People v St. John, 74 AD2d 85; People v Allman, 41 AD2d 325; People v Capobianco, 218 AD2d 707, 86 NY2d 841.) III. The Legislature correctly concluded that public policy is best served by limiting the privilege of Education Law § 6527 (3) to incidents affecting the quality of medical care and treatment. (Elmer v State of New York, 179 AD2d 1000; Fisher v Koehler, 692 F Supp 1519; Finley v Manhattan Dev. Ctr., 119 AD2d 425; Matter of State of New York [Office of Mental Health Buffalo Psychiatric Ctr.], 104 Misc 2d 1086; Matter of Civil Serv. Empls. Assn. [Director, Manhattan Psychiatric Ctr.], 72 AD2d 526; Matter of Ford v Civil Serv. Empls. Assn., 94 AD2d 262, 62 NY2d 603; [Matter of Smart v Francis, 35 NY2d 872; Cucalon v State of New York, 103 Misc 2d 808; Matter of Lochner v Surles, 149 Misc 2d 243; In re “Agent Orange” Prod. Liab. Litig., 506 F Supp 762, 635 F2d 987.) IV. Department of Correctional Services unusual incident reports, essentially identical to the documents at issue here, are routinely discoverable, available under the Freedom of Information Law, and commonly introduced into inmate disciplinary proceedings by the Department itself. (Matter of O’Neal v Coughlin, 162 AD2d 826; Matter of Howell v Goord, 251 AD2d 910; Matter of Green v Coombe, 233 AD2d 659; Matter of Bethea v Selsky, 231 AD2d 786; Matter of Bostic v Coughlin, 216 AD2d 766; Matter of Acevedo v Coughlin, 211 AD2d 931; Matter of Carney v Coughlin, 210 AD2d 996; Matter of Irby v Kelly, 161 AD2d 860; Matter of Collins v Coughlin, 156 AD2d 793; Matter of Grant v LeFevre, 135 Misc 2d 476.) V. The public interest privilege does not apply here. (Cirale v 80 Pine St. Corp., 35 NY2d 113; People v Keating, 286 App Div 150; Brady v Ottaway Newspapers, 97 AD2d 451, 63 NY2d 1031; Martin A. v Gross, 194 AD2d 195; Matter of Ford v Civil Serv. Empls. Assn., 94 AD2d 262, 62 NY2d 603; Melendez v City of New York, 109 AD2d 13; City of New York v Corwen, 164 AD 2d 212.) VI. Documents not otherwise privileged from disclosure by Education Law § 6527 (3) do not become privileged merely by being placed in an investigative file. (Byork v Carmer, 109 AD2d 1087; Bush v Dolan, 149 AD2d 799; Van Caloen v Poglinco, 214 AD2d 555; Crea v Newfane Inter-Community Mem. Hosp., 224 AD2d 976; Heitman v Mango, 237 AD2d 330; Matter of Grand Jury Subpoena [Bekins Record Stor. Co.], 62 NY2d 324.)
   OPINION OF THE COURT

Ciparick, J.

Claimant commenced this action on behalf of her infant daughter, Katherine F., to recover damages for injuries the child allegedly sustained while a patient at defendant Bronx Children’s Psychiatric Center. Claimant alleges that on several occasions during August 1993, a hospital employee sexually abused and assaulted her then 14-year-old daughter. In her discovery demand, claimant requested all “incident reports” arising from the alleged abuse. Defendant refused to turn over its investigation file, asserting that it was exempt from disclosure under Education Law § 6527 (3).

The Court of Claims conducted an in camera review and ordered disclosure of the file, which contained two incident reports as well as an investigation report and a safety department report. Relying on precedent from the Fourth Department, the court determined that the reports did not relate to a quality-of-care or medical review function, but rather, were part of a security function and therefore subject to disclosure. The Appellate Division reversed, holding that Education Law § 6527 (3) and Mental Hygiene Law § 29.29, when read in tandem, barred disclosure of the psychiatric hospital’s incident reports, and it certified to this Court the question whether its order was proper. We answer that question in the affirmative.

Education Law § 6527 (3), which exempts certain records from the discovery provisions of article 31 of the Civil Practice Law and Rules, provides:

“Neither the proceedings nor the records relating to performance of a medical or quality assurance review function or participation in a medical and dental malpractice prevention program nor any report required by the department of health pursuant to section twenty-eight hundred five-Z of the public health law described herein, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall be subject to disclosure under article thirty-one of the civil practice law and rules” (Education Law § 6527 [3] [emphasis added]).

The language of the statute is unequivocal. Education Law § 6527 (3) exempts three categories of documents from disclosure: records relating to medical review and quality assurance functions; records reflecting “participation in a medical and dental malpractice prevention program;” and reports required by the Department of Health pursuant to Public Health Law § 2805-Z, including incident reports prepared pursuant to Mental Hygiene Law § 29.29. Incident reports are defined as “reports of accidents and injuries affecting patient health and welfare” (Mental Hygiene Law § 29.29). Included in such reports are any allegations of “violent behavior exhibited by either patients or employees” (Mental Hygiene Law § 29.29 [1] [ii]). A charge of sexual abuse based on an employee’s conduct, as alleged here, falls squarely within this category. Thus, read together, Education Law § 6527 (3) and Mental Hygiene Law § 29.29 exempt from disclosure incident reports generated in response to allegations of sexual abuse by an employee.

Claimant, however, urges us to limit Education Law § 6527 (3) to reports that relate to a medical review or quality assurance function (see, e.g., Matter of Kristen K. v Children’s Hosp., 204 AD2d 1009; Elmer v State of New York, 179 AD2d 1000), and bear directly on a patient’s medical care and treatment. Because allegations of sexual abuse involve non-medical incidents that implicate a hospital’s security function, claimant maintains the documents sought are not exempt from disclosure. We disagree.

Nothing in the plain language of Education Law § 6527 (3) or its legislative history indicates that the quality of care should be read to exclude reports of patient abuse. To the contrary, in 1986, the Legislature specifically amended section 6527 (3) to expand the exemption to include reports prepared by hospitals pursuant to Public Health Law § 2805-Z and Mental Hygiene Law § 29.29 (see, L 1986, ch 266; L 1986, ch 427). Both statutes require hospitals to report incidents that extend well beyond medical care and treatment. Public Health Law § 2805-Z requires hospitals to investigate and report on patient injuries caused by fires, poisoning and equipment malfunction (see, Public Health Law § 2805-l [2] [b], [c], [d]). Similarly, Mental Hygiene Law § 29.29 establishes procedures for reporting incidents that affect a patient’s health and welfare, including an employee’s violent behavior. In 1992, section 29.29 was amended to include, as part of its incident reporting procedures, numerous provisions for identifying and resolving the abuse and maltreatment of children in residential care (Mental Hygiene Law § 29.29 [6] [a]-[fj; [8]). By referring to section 29.29 in Education Law § 6527 (3), the Legislature concluded that quality of care concerns include investigations of patient abuse.

Our conclusion is consistent with the overall purpose of Education Law § 6527 (3). The thrust of section 6527 (3) is to promote the quality of care through self-review without fear of legal reprisal. As we noted in Logue v Velez (92 NY2d 13), section 6527 (3) is designed to “ ‘enhance the objectivity of the review process’ and to assure that medical review committees ‘may frankly and objectively analyze the quality of health services rendered’ by hospitals” (id., at 17, quoting Mem of Assembly Rules Comm, Bill Jacket, L 1971, ch 990, at 6). By ensuring the confidentiality of incident reports, Education Law § 6527 (3) enables a psychiatric hospital “to ameliorate the causes of untoward incidents” through “unfettered investigation[s] ” (Letter of Commn on Quality of Care for the Mentally Disabled, dated July 17, 1986, Bill Jacket, L 1986, ch 427, at 15).

That these investigations reflect a quality assurance review function is further supported by the procedures outlined in Mental Hygiene Law § 29.29. As part of these procedures, psychiatric hospitals must appoint a “patient care and safety team” to investigate and report on any incidents of violent behavior exhibited by a hospital employee (Mental Hygiene Law § 29.29 [1] [ii]). Information from these reports is submitted to the Commissioner of the Office of Mental Health, who, in turn, forwards the information to the State Commission on Quality of Care for the Mentally Disabled (Mental Hygiene Law § 29.29 [4], [5]).

This scheme of review undeniably contemplates a quality assurance function and leads us to the conclusion that the reports generated here were part of that function. They include an investigation report prepared by a physician and addressed to the Director of Quality Assurance; two “incident report [s]” prepared by designated staff persons; and an “incident or investigation report” prepared by the State Office of Mental Health’s Bureau of Safety and Security Services. All of these reports were compiled by hospital personnel as part of an internal investigation into allegations of child sexual abuse and, as such, are clearly exempt from disclosure under Education Law § 6527 (3).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Wesley and Rosenblatt concur.

Order affirmed, etc.  