New York State Court of Claims

New York State Court of Claims

LAMM v. STATE OF NEW YORK, #2001-018-87, Claim No. 99321, Motion No. M-62596


Synopsis


Claimant's motion for an Order compelling Defendant to produce the personnel file of a correction officer was denied. The Court granted portion of motion requesting a subpoena for the production of statements given to New York State Inspector General by correction officers involved in matter.

Case Information

UID:
2001-018-87
Claimant(s):
LINDSEY LAMM
Claimant short name:
LAMM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99321
Motion number(s):
M-62596
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
BARTON, BARTON & PLOTKIN, LLP
By: ADAM D. CAHN, ESQUIREand JASON M. BERNHEIMER, ESQUIRE (oral argument)
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: TIMOTHY MULVEY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 31, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant brings this motion seeking an order compelling the State of New York to


produce the personnel file of a certain correction officer and for a Court issued subpoena for

production of the records from the New York State Inspector General's investigation of the

incident involving Claimant; or in the alternative, that the Court conduct an in-camera review of

said records. Defendant opposes the motion.

The claim seeks damages for assault and battery, negligence and medical malpractice. Claimant alleges that he was seriously injured as a result of being assaulted by a fellow inmate on April 2, 1998, while incarcerated at Adirondack Correctional Facility. This claim asserts that the State negligently housed a known violent inmate with Claimant despite his complaints and requests to be moved. The claim further alleges that a correction officer solicited the inmate to assault Claimant, and then, while the assault was occurring, failed to act promptly to stop the beating and summon help.

By this motion, Claimant seeks the release of the personnel file of the subject correction officer on the ground that the files "bear on the issue of whether the STATE had notice of the need to more closely supervise, retrain, reassign or fire the Officer." (Cahn Affirmation in Support, page 3) Specifically, Claimant believes that he is entitled to know whether the officer has been involved in similar incidents, and whether he was subject to disciplinary actions as a result of this incident. Claimant further alleges that both the personnel file and the Inspector General's investigative reports contain pertinent information to this lawsuit which should be ordered to be produced.

Defendant opposes the motion arguing that Claimant has failed to present the required factual predicate which would entitle him to an in-camera review of the records in accordance with Civil Rights Law §50-a(2), and further that Claimant has failed to assert that the correction officer has ever been subjected to disciplinary action. Therefore, Claimant's request is nothing more than a fishing expedition.

The Court will address the issue of the personnel file first. Civil Rights Law §50-a provides in relevant part:
  1. "All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any....department of the state...
and such personnel records under the control of....a department of correction of individuals employed as correction officers....shall be considered confidential and not subject to inspection or review without the express written consent of such...correction officer except as may be mandated by lawful court order.
  1. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request the records for review.
  1. If, after such hearing, the judge concludes there is sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting."

Thus, the request for the release of a personnel file is a two-step inquiry: first there must be a clear showing of facts sufficient to warrant the in-camera review, then, the Court must determine whether the records are relevant and material to the pending action. (Civil Rights Law §50-a(2)(3);
Cox v New York City Housing Authority, 105 AD2d 663) The initial inquiry must be viewed liberally since the party seeking the information will not typically have the precise information regarding what is contained in the personnel file. (Cox v New York City Housing Authority, supra at 664) As required, the Court gave the parties an opportunity to be heard.
Claimant's need for the correction officer's personnel file is, in part, to know whether the officer was involved in other incidents which would have provided notice to the State of the need to more closely supervise, retrain, reassign, or fire the officer; yet, there is no cause of action for failure to supervise, train, or improperly retain the officer contained in the claim. The bill of particulars goes through each and every act or omission constituting negligence on the part of the defendant and there are no factual allegations that the officer was involved in any other similar incidents.

At the hearing, the State read into the record a portion of the correction officer's deposition in which he was asked about any disciplinary proceedings against him. The officer acknowledged one such proceeding which did not involve interactions with inmates and occurred at a different facility. Apparently, no disciplinary action was taken as a result of the incident involving Claimant. Claimant's attorney argued that there have been inmate grievances filed against the officer; however, the Assistant Attorney General responded that these would not be in the personnel file unless they resulted in disciplinary action. In any event, retrieval of copies of the grievances is available through the CPLR disclosure devices, without court order. Claimant failed to present any other facts which would warrant a review of the officer's file by this Court. Claimant's request is merely a fishing expedition for information which may be used for impeachment purposes only. (
People v Valentine, 160 AD2d 325, 326)
Claimant also requests that the Court issue a subpoena duces tecum for the release of the Inspector General's investigative reports into this incident. Defendant made only a cursory comment in its papers that Claimant is not entitled to these reports and the Court should deny the motion. At the hearing, Defendant argued that this report is privileged and therefore not subject to discovery, although much of its contents have been disclosed through the standard process.

The Inspector General's file is protected by the public interest privilege; a privilege which is "applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality." (
Cirale v 80 Pine St. Corp., 35 NY2d 113, 117-118; Lowrance v State of New York, 185 AD2d 268) At issue is whether the needs of the State in maintaining the integrity of its investigations and the confidentiality of participants in the investigative process outweigh the interest of Claimant to important and relevant information for redressing a wrong. (Lowrance v State of New York, supra at 269; LaValle v State of New York, 185 Misc 2d 699) This matter involves an internal investigation within the confines of a prison setting, requiring the Court to insure, by an in-camera review, whether the file contains information which would compromise the confidentiality of the sources of information or the integrity of the investigative process before the material is released.
Upon inspection of the file, the Court finds that numerous documents contained therein have already been supplied by the Defendant while others are available to Claimant through other means. The file does contain the medical records of another inmate, which are privileged, and tier hearing documents involving the inmate who assaulted Claimant which are irrelevant and immaterial. The items which the Court needs to consider are those unavailable to Claimant through any other source. (
Cirale v 80 Pine St. Corp., supra.) Specifically, these items include the statements given to the Inspector General's investigator by Correction Officer Stevens, Claimant, Inmates Wooten, Candelario and Rainey. Also, there is a letter from Claimant to the Inspector General.
To decide the motion, the Court has considered the purpose of the Inspector General's existence. The office was established by Governor Mario Cuomo by Executive Order on January 29, 1986.[1]
Governor George Pataki expanded the investigative duties of the office to include more covered agencies by Executive Order on June 17, 1996.[2] The purpose of the office, according to both executive orders, is to investigate complaints in an effort to prevent fraud, abuse, and corruption in State agencies, departments, and divisions.
Few Courts have had the opportunity to address the release of information from the investigative file of the State Inspector General. A most enlightening decision involving the disclosure of privileged and confidential government information comes from none other than the Court of Appeals in
Cirale v 80 Pine St. Corp., for which the Court wrote:
By our decision today, we do not hold that all governmental information is privileged or that such information may be withheld by a mere assertion of privilege. There must be specific support for the claim of privilege. Public interest is a flexible term and what constitutes sufficient potential harm to the public interest so as to render the privilege operable must of necessity be determined on the facts of each case. (Cirale v 80 Pine St., Corp., 35 NY2d at 118-119).

Based upon that decision, and the specific factual context of this case, this Court has not followed the Second Department ruling in
Lowrance v State of New York (185 AD2d 268). In Lowrance, a facially similar case to this one, the Inspector General's file contained several interviews with correction officers and inmates together with notes, conclusions and recommendations of the investigator. The Lowrance Court found that "protecting the confidentiality of sources who provide sensitive information within a prison context" was of primary concern. In the instant matter, the witnesses whose statements are at issue also testified at the tier hearing; and therefore, the names of the witnesses and the information they provided which is contained in the Inspector General's file are already known to both parties. (Cf., Parker v State of New York 269 AD2d 255) Moreover, the State has failed to provide specific information to support the claim of privilege. (Cirale v 80 Pine St. Corp., supra) The Court also notes that unlike the situation in LaValle v State of New York (185 Misc 2d 699) where disclosure could have had a chilling effect on the willingness of witnesses to come forward with truthful information, the correction officer involved here is required to complete an inmate misbehavior report regarding the incident and, if necessary, to testify under oath in the tier hearing; disclosure of the statement he made to the Inspector General should have no such chilling effect.
Finally, given the tenor of the CPLR disclosure provisions and to promote fairness by allowing both parties access to statements, specifically for impeachment purposes, the Claimant's motion is GRANTED only to the extent that the statements of Correction Officer Stevens, Claimant, Inmates Wooten, Candelario, and Rainey are to be disclosed to the Claimant. The Court will sign an appropriate Subpoena Duces Tecum, prepared by Claimant's counsel.

Claimant's motion is DENIED in all other respects.

May 31, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in determining the motion:

Notice of motion...........................................................................................1

Affirmation in support of Adam D. Cahn, Esquire, with all

exhibits attached thereto............................................................................2


Affirmation in opposition of Timothy P. Mulvey, Esquire,

Assistant Attorney General with exhibit attached thereto.......................3


Reply Affirmation in support of Adam D. Cahn, Esquire................................4


Filed Documents:


Claim...............................................................................................................5


Verified Answer..............................................................................................6


The Court also held a hearing on the issues raised on May 8, 2001.

[1]See 9 NYCRR §4.79
[2]See 9 NYCRR §5.39