New York State Court of Claims

New York State Court of Claims

WELCH v. THE STATE OF NEW YORK, #2001-005-537, Claim No. 103387, Motion No. M-63702


Claimant's motion for an order compelling disclosure after an in camera inspection is granted to the extent noted and otherwise denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Wiggins & Masson, LLPBy: Erin E. McKinley, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 24, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On August 15, 2001, the following papers, numbered 1 to 7, were read on motion by Claimant for an order compelling disclosure:

1, 2, 3 Notice of Motion, Re-Notice of Motion, Affidavit and Exhibits Annexed
  1. Opposing Affirmation and Exhibit Annexed
  2. Supplemental Affidavit and Exhibit Annexed
6, 7 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted to the extent noted and otherwise denied.

In this motion Claimant seeks an order compelling disclosure in a matter seeking damages for personal injuries alleging, inter alia, negligent hiring. It is alleged that the Claimant, at a time when she was an inpatient at the Rochester Psychiatric Center (RPC), was sexually assaulted by an employee.

It is further alleged that the said employee thereafter pleaded guilty to attempted sodomy in the First Degree, and is currently incarcerated. In furtherance of this claim, Claimant has sought certain documents and materials in her Combined Discovery Demands (Exhibit B), to which the Defendant has responded, except for request Numbers 2, 3, 4 ,5 ,6 and 7, for which it claims protection under the Public Officers Law, Mental Health Law and the Education Law. Similarly, Claimant seeks the redacted portions of an RPC Memorandum dated March 13, 2000, a Special Investigation of the incident involving the Claimant, with an index of some 68 items and with redactions listed therein (Claimant's Exhibit F to her Supplemental Affidavit). Claimant has made a good faith effort to resolve the dispute, and turns to the court to resolve the disputed items.

The Defendant has supplied to the court, for its in camera inspection, a complete 248 page set of unredacted materials (with pagination), consisting of Pages 1- 18, characterized as the "Root Cause Analysis"; Pages 19-22, characterized as the Special Investigation Summary Report; Page 23 to the first half of Page 35, characterized as the "Investigative Memorandum", and Pages 35 (second half) - 248, containing the "Issues raised/Recommendations," followed by the aforementioned item list (Claimant's Exhibit F), and the supporting documents. The Defendant has addressed all 68 such items and, I make the following rulings:

- Items Numbered 8, 9, and 14 (pp 54, 55, and 63), characterized as documents generated by third parties. Defendant is directed to release a copy of the same, in accordance with the procedures noted below.

- Item Number 20 (pp 70-71) - is an unrelated incident, and it properly remains redacted.

- Items Numbered 22 to and including 41 - records pertaining to the employee David Miller's hiring and employment. Defendant does not oppose the release thereof upon issuance of my order authorizing the release. The release of Items Numbered 22 to 41, (Pages numbered 74 to 117) is SO ORDERED, in accordance with the procedures noted below.

- Items numbered 5 (pp 47-48) and 47 through and including 52 (pp 143-174)[1], characterized by Defendant as patient records relating to Claimant. Defendant is directed to release a copy of the same, in accordance with the procedures noted below.

As to all the other enumerated items, including the Root Cause Analysis, the Defendant

contends that all are part of the investigation and reporting procedures required by §29.29 of the Mental Hygiene Law, and are exempt from disclosure under Education Law §6527(3). A unanimous Court of Appeals in Katherine F. v State of New York, 94 NY2d 200, addressing an essentially identical question with respect to the alleged sexual abuse of a patient at a State psychiatric facility by an employee, held:

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 ... 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... 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... The thrust of section 6527(3) is to promote the quality of care through self-review without fear of legal reprisal... 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]" (reference omitted)... 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).

Claimant essentially concedes that Items 1, 2, 3 and 7 (pp 38-44 and 50-52) qualify as "incident or investigation reports" prepared by the Defendant consistent with the statutes cited above and Katherine F., supra. However, as to all other such items for which the Defendant asserts an exemption, Claimant urges that they fall outside of the statutes, particularly as many listed documents were "clearly in existence" before the date of the alleged assault on February 25, 2000, and should not therefore qualify as "incident or investigation reports".

Accordingly, I have reviewed all such challenged items, and make the following rulings with respect to:

Pages 1-18 - the "Root Cause Analysis"; Pages 19-22 - the Special Investigation Summary Report, and Pages 23 - first half of 35 - the "Investigative Memorandum", all should be redacted as having been generated as a result of the internal investigation;

Pages 35 (second half) to 37 - contains a redacted listing of the items of supporting documentation, and shall remain redacted;

Page 45 - entitled "Activity Report" - is identified by Defendant as a fax transmission log between February 22, 2000 and February 28, 2000, and reflects no fax transmissions on February 25 after 14:51 hours until February 28 at 08:52 hours. It appears irrelevant and immaterial to the underlying causes of action. I decline to order its production;

Page 53 is a copy of a handwritten sheet which reflects the names of individuals contacted with respect to the incident, identified by Defendant as the unintended recipients of an e-mail regarding the original incident. I decline to order its production, as it clearly was generated by the incident in question;

Pages 120 and 141 are part of an employment record of another employee and are unrelated and immaterial to the underlying causes of action;

Item Nos. 4 (p 46); 7 (p 50-52);8 ( p 54); 10 (p 56), 11 (p 57); 12 (pp 58-60); 13 (p 61-62); 15 (p. 64); 16 (p 65); 17 (p 66); 18 (p 67); 19 (pp 68-69); 21 (pp 72-73); 42 (pp118-119); 43 (p 121); 44 (pp 122-128); 45 (pp 129-140); 46 (p142); 54 (p 207); 55 (p 208); 56 (pp 209-210); 57 (p 212); 58 (pp 213-214); 59 (pp 215-219); 60 (pp 220-221); 61 (p 222); 62 (pp 223-224); 63 (pp 225-226); 64 (p 227); 65 (pp 228-229)[2]; 66 (p 230); 67 (pp 231-254), and Item 68 (pp 246-248), all are documents, statements, etc., generated by and for the investigation of the incident and prepared subsequent thereto, and as such, fall within the parameters of the statutes and Court of Appeals decision in Katherine F, supra., and should remain redacted. Some such documents involve other unrelated employees and staff members and their own employment records, and are thus irrelevant and immaterial to the underlying causes of action.

Item No. 9 - (p 55) appears to be a copy of a page from the Mental Hygiene Laws, §§130.38 to 130.65, and may be disclosed.

Defendant has advised the court that Page 211 contains an unsigned statement made by the Claimant, and which has already been disclosed.

With respect to Item No. 53 (pp 175- 206), characterized as Nursing Shift Reports for dates listed therein, and Item No. 6 (p 49), characterized as a Patient Rounding Form, the Defendant is directed to disclose the same, but redacting all other patients' names, except, of course for the Claimant.

As to all documents and materials for which I have permitted or ordered disclosure, the Defendant is directed to provide copies thereof to the Claimant within 30 days of service of a file-stamped copy of this order. The Chief Clerk of the Court is directed to seal and preserve a fully-unredacted set of materials provided to the Court for this in camera inspection, in the event of appellate review hereof.

October 24, 2001
Rochester, New York

Judge of the Court of Claims

[1] The date on the index for pages 143-148 has been properly corrected by Defendant to be November 20, 2000, not November 22, 1999, and thus does not precede the incident in question.
[2] The Defendant has corrected the index to correct a possible misimpression about the source of an e-mail. It has no bearing on the redaction of these pages.