LEONIDO v. THE STATE OF NEW YORK, #2000-017-613, Claim No. 99960, Motion No.
After an in camera inspection, disclosure of correction officers' personnel
records and prison guidelines were directed to be disclosed to claimant.
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
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ANDREW P. O'ROURKE
Dupee & Dupeeby: Emily Maute, Esq.
Eliot Spitzer, Attorney Generalby: Dewey Lee, Assistant Attorney General
February 2, 2001
See also (multicaptioned
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
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
A number of items that are contained in the two personnel files merit special
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
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
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 ). 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
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
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; 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
City, New York
HON. ANDREW P. O'ROURKE
Judge of the Court of