Gov. Andrew Cuomo’s Health Department broke the law by refusing to provide a government watchdog group with the total nursing home death toll from COVID-19, a judge ruled Wednesday.
The legal smackdown came just days after an attorney general’s report revealed that the Cuomo administration misled the public about the total number of nursing home residents killed by the coronavirus by only releasing the numbers of those who died in nursing homes, not those who later died in hospitals.
In a 16-page decision, acting Albany Supreme Court Justice Kimberly O’Connor blasted the DOH for repeatedly telling the Empire Center for Public Policy “that it was unable to respond to the [Freedom of Information Law] request” since it was filed six months ago.
“DOH does not, in the Court’s opinion, offer an adequate explanation as to why it has not responded to that request within its estimated time period or to date,” O’Connor wrote.
“Its continued failure to provide petitioner a response, given the straightforward nature of the request … goes against FOIL’s broad standard of open and transparent government and is a violation of that statute.”
O’Connor ordered the DOH to turn over the records within five business days.
She also gave the Empire Center 60 days to submit evidence of its legal fees and court costs, along with a proposed court order for it to be reimbursed by the DOH.
The Empire Center’s Bill Hammond called the ruling “a great victory.”
“We’re very pleased but we don’t have the data yet and there’s still a chance that they will appeal and tie this up for potentially months longer — and given the way they’ve behaved so far, I wouldn’t be surprised,” he said.
“I think that appeal would be doomed. I think they don’t have a leg to stand on legally.”
The ruling was also hailed by one of Cuomo’s fellow Democrats — Assembly Health Committee Chairman Richard Gottfried of Manhattan.
“It’s an important victory for all of us. This is important data that we in the Legislature and countless New Yorkers have been demanding for months,” Gottfried said in a prepared statement.
“The Empire Center has performed an important public service.”
On Thursday, state Attorney General Letitia James issued a report that estimated the DOH tally of COVID-19 deaths that took place in nursing homes could be 56 percent higher if it included residents who died in hospitals.
The report forced Health Commissioner Howard Zucker to finally release figures that pushed the total official tally to 12,743 as of Jan. 19.
The day before James issued her report, the DOH was only acknowledging that 8,711 residents had died in nursing homes.
Controversy over the revelation led Cuomo to callously say during a news conference Friday, “But who cares [if they] died in the hospital, died in a nursing home? They died.”
Zucker — who’s facing bipartisan outrage, including a demand that he resign from the state Senate’s top Republican — has claimed he was auditing the hospital numbers for accuracy but decided to release them in the wake of James’ report.
In a prepared statement, DOH spokesman Gary Holmes said, “With the preliminary audit complete, we were already in the process of responding to their FOIL request, and updating DOH’s website with publicly available information.”
The statement didn’t say when those moves would take place.
