New York State Court of Claims

New York State Court of Claims

LEONIDO v. THE STATE OF NEW YORK, #2000-017-613, Claim No. 99960, Motion No. M-59804


Synopsis

After an in camera inspection, disclosure of correction officers' personnel records and prison guidelines were directed to be disclosed to claimant.



Case Information

UID:
2000-017-613
Claimant(s):
NICOLE LEONIDO, an infant, by her Mother and Natural Guardian, ELLEN LEONIDO, CHRISTOPHER LEONIDO, an infant, by his Mother and Natural Guardian, ELLEN LEONIDO, and ELLEN LEONIDO, Individually
Claimant short name:
LEONIDO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99960
Motion number(s):
M-59804
Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Dupee & Dupeeby: Emily Maute, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 2, 2001
City:
New City
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim arises from a July 30, 1997 incident in which a prison inmate escaped from a van while being transported from one correctional facility to another and carjacked the claimants in the Village of Walden. Subsequent investigation revealed that the perpetrator had a handcuff key and a razor blade concealed in his abdomen. Claimants allege that negligence on the part of defendant's employees caused the subject incident. Defendant moved for summary judgment and, in an order filed March 14, 2000, that motion was adjourned to allow completion of disclosure proceedings. Subsequently, defendant submitted four separate categories of documents to the court for in camera inspection to determine whether such documents should be disclosed to claimants. In letters to the court, and at oral argument, the parties articulated their respective positions as to the requested disclosure, and in this decision the court will address and resolve those issues. Defendant has submitted, for in camera review, the personnel files of Correction Officers Yark and Smith. As defendant notes, these records must be considered "in the context of Civil Rights Law §50-a." Defense counsel advised the court that he has spoken to Officers Yark and Smith and that they do not consent to turning over these materials to claimant. Since the court has not received any independent appearance on behalf of the officers, the representations of counsel are construed as consent on the part of the officers that the Attorney General represent their position on this application.

Civil Rights Law §50-a operates as a limitation on the otherwise prevailing policy that there be full disclosure of all material that may be relevant to an issue in a civil action or that may lead to such relevant material.
The statute was designed to prevent abusive exploitation of personally damaging information contained in officers' personnel records – perhaps most often in connection with a criminal defense attorney's FOIL application for purposes of general cross-examination of a police witness in a criminal prosecution. Undeniably from the legislative record, however, the legislative objective went beyond precluding disclosure on behalf of defendants in pending criminal cases ***. The legislative purpose was to prevent disclosure of officers' personnel records except when a legitimate need for them has been demonstrated sufficiently to obtain a court order, generally upon a showing that they are actually relevant to an issue in a pending proceeding ***. The original legislation was sponsored and passed as a safeguard against potential harassment of officers through unlimited access to information contained in personnel files. (In the Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154-155).
Officer Yark's file contains only papers that are relevant to the subject incident. Officer Smith's file contains, in addition a few pages consisting of performance evaluations. It hardly needs to be pointed out that the escape of a dangerous felon from a correctional facility van, followed by a carjacking and the eventual apprehension of the felon, armed with a blade and a handcuff key, is an event that necessarily generated a thorough investigation by the Department of Correctional Services. The fruits of that investigation are clearly relevant to the issues raised in this claim, indeed they are relevant to a degree that outweighs any privacy concerns. This is not the proverbial "fishing expedition" into records in the hope that something might be found to support an action, but rather an extraordinary event, headline news as one might expect, that resulted in disciplinary proceedings against two correction officers. Claimants' "legitimate need" for these materials is manifest, particularly when one considers the heavy burden that must be met, in terms of substantive law, before a successful cause of action is established. Defense counsel does request that he be permitted to redact from the files certain personal information not relevant to the claim: social security numbers, home addresses and telephone numbers and dates of birth. Those concerns are reasonable, and defendant is directed to provide claimants' counsel with copies of the records submitted to the court, with the appropriate redactions made.

A number of items that are contained in the two personnel files merit special comment:
1. An arbitrator's decision and award (in Smith's file) involving a correction officer named McDermott involving a different incident.

2. A stapled set of papers (6 pages, in Smith's file) constituting a directive titled "Transfer of Inmates."

3. A stapled set of papers (5 pages, Smith's file) consisting of excerpts of regulations.

4. A stapled set of papers (25 pages, Yark's file) consisting of regulations governing the transportation of inmates.
The first of these items involves an escape from a correctional facility bus in Clinton County in the early 1980's. It has no relevance to the instant claim and it need not be provided to claimants. With respect to the other three items, defendant argues that the "law enforcement privilege" militates against disclosure because of potentially harmful consequences if the material was disseminated publicly. Defendant makes the same argument against disclosure of the third item submitted for review, the Ulster Correctional Facility Transportation Manual.

Although defendant provided no citations in support of this "law enforcement privilege," the reference was presumably to what the Court of Appeals has denominated the "public interest privilege":
A public interest privilege inheres in certain official confidential information in the care and custody of governmental entities. This privilege permits appropriate parties to protect information from ordinary disclosure, as an exception to liberal discovery rubrics (see, Cirale v 80 Pine St. Corp., 35 NY2d 113 [1974]). Specifically, the privilege envelops " ‘confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged' " (id., at 117 [citations omitted]). The justification for the privilege is that the public interest might otherwise be harmed if extremely sensitive material were to lose this special shield of confidentiality (see, id., at 117). (In the Matter of World Trade Center Bombing Litigation. Steering Committee v Port Auth. of New York and New Jersey, 93 NY2d 1, 8).
The court went on to note, in that case which involved disclosure of security plans for the World Trade Center, that the privilege was neither as absolute as the defendant maintained nor as easily evaded as the plaintiffs contended. Rather, what is required is a balancing of the potential harm that could arise from disclosure against the potential legitimate use that could be made of the material by parties to civil litigation, with the court recognizing that "the public interest correspondingly encompasses societal interests in redressing private wrongs, like those alleged by plaintiffs, and allows for the fair adjudication of private litigation" (id.) Where it is shown that the harm to the public that could arise from disclosure outweighs the harm to a plaintiff or claimant that could arise from nondisclosure, the conclusion that the public interest would be better served by nondisclosure is warranted. Otherwise, the policy of liberal disclosure prevails.

The high burden of proof that case law places on the claimants herein (discussed in detail in the court's prior interim decision on defendant's summary judgment motion, filed March 14, 2000) essentially means that a decision denying claimants access to the materials in question would determine the outcome of this claim. On the other hand, defense counsel has, commendably, made a number of appropriate suggestions as to how claimants' counsel could be provided with access to this material and at the same time prevent its unchecked public dissemination in a manner that could possibly compromise Department of Correctional Services security. Accordingly, the court will adopt counsel's suggestions and direct the disclosure of items 2,3, and 4 listed on pp. 3 and 4 of this decision, and the Ulster Correctional Facility Transportation Manual, upon the following conditions:
1. Defendant will deliver copies of the materials in a sealed envelope with a copy of this order stapled to the outside of the envelope.

2. Only claimants' counsel and office employees will be allowed to view the materials.

3. No copies of the materials may be made.

4. In the event counsel wishes to use any pages from the materials as an exhibit to a motion, prior court permission must be obtained.

5. Upon completion of this litigation, the copies must be returned to the Attorney General's office by hand delivery.

6. Violation of any of these restrictions may be the basis for a contempt of court application.
The final item is the Report of the Inspector General concerning the subject incident. To the extent that defendant's objection to disclosing this report, and the materials on which it was based, is based on such decisions as Katherine F. v State of New York (257 AD2d 539) and Brathwaite v State of New York (208 AD2d 231), the argument is misplaced, since those decisions concerned statutory provisions that are not applicable here (Education Law §6527[3]; Mental Hygiene Law §§ 29.29, 45.01; Public Health Law §§ 2805-l, 2805-m). Although the Brathwaite court did make reference to the public interest privilege articulated in Cirale v 80 Pine St. Corp. (35 NY2d 113), the decisions that were set forth as illustrative of the privilege all reflect facts which are distinguishable from those that obtain herein. Indeed the court in Jones v State of New York (58 AD2d 736) allowed disclosure of portions of the investigation into the Attica uprising after the request was tailored so as to be compatible with the State's security concerns. And unlike the situation in Matter of Klein v Lake George Park Commission (261 AD2d 774), there is no issue here of confidential informants. The subject investigatory file contains information provided by the two corrections officers, the bus driver, and the inmates who were on the bus. The identities of these people are not secret or confidential in any sense and the defendant has not even attempted to explain how disclosure of the contents of the file to claimants' counsel would implicate legitimate security concerns. Lowrance v State of New York (185 AD2d 268), the other decision relied on by defendant, involved a request by an incarcerated inmate for disclosure of an investigatory file that contained interviews with confidential sources. The security concerns raised by such a request are too obvious to require any discussion here, except to note the contrast between those facts and the facts currently before the court.

Upon review of the submitted material, the court finds that an appropriate balancing of the parties' respective interest allows for the disclosure of the Inspector General's file under the same conditions set forth herein with respect to the transportation manual and the facility regulations and directives. Additionally, defendant may redact any personal information (social security numbers, home addresses and phone numbers and birth dates) from the file.

Defendant shall comply with the provisions set forth herein within 40 days of the filing date of this decision and order. Additionally, although the court had reserved decision on defendant's summary judgment motion, that motion was made prior to any disclosure being conducted (it was in reality a motion to dismiss based solely on the pleadings) and any subsequent motion, made after the completion of disclosure, would have to proceed on entirely new papers on behalf of both parties. Accordingly, the motion for summary judgment is hereby denied as premature, for the reasons set forth in the court's prior order and to allow disclosure to proceed. This denial is, of course, without prejudice to a new motion for summary judgement to be made upon the conclusion of disclosure.


February 2, 2001
New City, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims