New York State Court of Claims

New York State Court of Claims

MOSLEY v. THE STATE OF NEW YORK, #2002-013-003, Claim No. 104862, Motion No. M-64397


In an action alleging wrongful behavior on the part of a prison counselor, inmate's demand for copies of grievances and complaints against the counselor is granted, there being no objection by Defendant. The demand for copies of statutes and regulations is denied as improper. The demand for psychological reports and test results relating to the counselor is denied on the ground that such records are protected by Public Officers Law §96 and Claimant has presented no basis for their disclosure.

Case Information

LEON LARRY MOSELY The Court has sua sponte amended the caption to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 26, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On January 16, 2002, the following papers were read on Claimant's motion to compel discovery:
1. Notice of Motion and Supporting Affidavit of Leon Larry Mosley ("Mosely Affidavit")

2. Letter in Response of Reynolds E. Hahn, Esq. ("Hahn Letter Response")

3. Reply Affidavit of Leon Larry Mosely ("Mosley Reply Affidavit")

4. Filed Papers: Claim; Answer

This claim alleges that for a period of time up to July 30, 2001, a Department of Correctional Services (DOCS) counselor at Orleans Correctional Facility, Dave Waiter, engaged in inflicting "on going mental cruelty and emotional distress" as a result of his prejudicial treatment to Claimant and other African-American inmates. By this motion, Claimant seeks to discover the following:

1. Reports or complaints received by DOCS regarding Counselor Waiter;

2. The Counselor's psychological test results and psychological records; and

3. "[S]pecific statutes for [DOCS] regarding the rules and regulations and any information regarding the actual training and procedures and guidelines for Correction Counselors in their training."

In response to the motion, counsel for Defendant has volunteered to conduct a search for and provide Claimant with complaints and grievances regarding Counselor Waiter (with inmate names redacted); any documents setting forth minimum education and training for the position of counselor; any documents reflecting continuing requirements to maintain such employment. This more than adequately covers Claimant's first demand, and so much of his third demand that relates to information that would be in the sole exclusive possession of Defendant. As to any statutes and regulations relevant to the training given to DOCS' counselors, Defendant is obliged to produce for inspection only those documents and things that are in its "possession, custody or control" (CPLR 3120). Matters of public record, such as statutes and regulations, are equally accessible by any party. With respect to the demand for the counselor's psychological tests and reports, Defendant contends that such material is immune from disclosure pursuant to Public Officers Law §96, while Claimant, in his reply affidavit, asserts that the record of complaints and grievances will provide ample justification for directing further disclosure.

I note at the outset that while this motion is described as one to compel discovery, it does not appear that Claimant made any demand for these documents prior to bringing the motion. Properly, a motion to compel is to be brought only after a party has failed to comply with a discovery request or demand (CPLR 3124). I appreciate defense counsel's willingness to overlook this technicality, most likely because of Claimant's status as a pro se litigant, and to voluntarily agree to provide the documents to which there is no objection.

Public Officers Law §96 under New York's Personal Privacy Protection Law, provides that no government agency shall release records containing personal information, without the request or consent of the person involved, except under certain circumstances. The purpose of this law is "to prevent the disclosure of documents constituting an unwarranted invasion of privacy" (Feliciano v State of New York, 175 Misc 2d 671, 672). Subdivision (k) of that statute permits the release of personal information "pursuant to a court ordered subpoena or other compulsory legal process." There must be a rational basis for such an order and, for reasons explained, in this instance there should in fact be a compelling need. Claimant's unsupported allegations of misconduct on the part of the Counselor do not provide sufficient grounds for ordering the release of such intensely personal private information. As defense counsel accurately points out, if the record search he has agreed to perform turns up no complaints or grievances against this counselor, "it would be completely inappropriate for an inmate to have access to records contained in a counsel's personal file" (Hahn Letter Response).

If Claimant were seeking similar information from the personnel records of a prison correction officer (or of a firefighter or police officer), the rather extensive procedural requirements of Civil Rights Law §50-a would have to be met.[1] That statute does not, of course, protect the personnel record of prison counselors in the same manner, and certainly the same procedures need not be followed before disclosure could be ordered. Nevertheless, it is my view that many of the same public policy considerations that gave rise to the statutory protection for correction officers would apply almost as forcefully to the records of prison counselors. They too are public officials entitled to protection from harassment, reprisals and "fishing expeditions" (Matter of Prisoners' Legal Services of N.Y. v New York State Dept. of Correctional Services, 73 NY2d 26, 30; Matter of Gannett Co. v James, 108 Misc 2d 862, 864, affd 86 AD2d 744, lv denied 56 NY2d 502). Untrammeled inquiry into the records of prison counselors could be almost as detrimental to the good operation of a correctional facility as would such inquiry into the records of correction officers. In the instant case, Claimant has presented no reason, much less a compelling reason, for directing disclosure of records of this nature.

Claimant's motion with respect to the demand to complaints and grievances regarding Counselor Waiter is granted, with the understanding that the names of inmates will be redacted. The remainder of Claimant's motion is denied.

February 26, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Under that statute, the party seeking disclosure must make a "clear showing of facts" sufficient to warrant a request for the records and must give all interested parties an opportunity to be heard. A hearing is then conducted, and if the court finds a sufficient basis for disclosure, the records are then sealed and given to the court for in camera inspection. Only those portions the court determines to be relevant and material to the action are to be disclosed (Cox v New York City Housing Auth., 105 AD2d 663).