TYREE v. THE STATE OF NEW YORK , #2002-019-530, Claim No. 101474, Motion No.
Upon in camera review, Claimant's motion to compel production of inmate
grievance complaints and DOCS directives is denied; and motion to produce copy
of Inspector General's file is granted in part and denied in part.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
GARLAND TYREE, PRO SE
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Carol A. Cocchiola, Assistant Attorney General,of counsel
May 6, 2002
See also (multicaptioned
This Decision & Order addresses this Court's in camera review of
various documents submitted by the State in response to Claimant's prior motion
to compel discovery. (Tyree v State of New York, Ct Cl., May 2, 2001,
Lebous, J., Claim No. 101474, Motion No. M-63202).
The Court has considered the following papers in connection with this
1. DECISION AND ORDER, Ct Cl., Lebous, J., Claim No. 101474, Motion No.
M-63202, filed May 2, 2001.
2. Letter from Carol A. Cocchiola, AAG to Court, dated and received August 23,
2001, with enclosed copies of Directives 4900 and 4091 for in camera
3. Letter from Carol A. Cocchiola, AAG to Court, dated September 5, 2001,
enclosing original investigation file from the Office of the Inspector General
for in camera review.
4. Letter from Carol A. Cocchiola, AAG to Court, dated and received February 4,
2002, with enclosed affidavit for in camera review.
5. Letter from Garland Tyree to Court, dated February 13, 2002 and received
February 19, 2002.
6. Letter from Carol A. Cocchiola, AAG to Court, dated and received March 8,
7. Letter from Carol A. Cocchiola, AAG to Court, dated and received April 3,
8. Letter from Garland Tyree to Court, dated April 7, 2002, and received May 2,
By way of background, this underlying Claim alleges that Claimant was assaulted
by State correction officers on October 3, 1999 while incarcerated at Southport
Correctional Facility (hereinafter "Facility"). Claimant's original motion to
compel sought the State's compliance with three Demands for Discovery and
Inspection dated January 10, 2000, August 9, 2000, and December 21, 2000,
respectively. This Court, among other things, directed the State to submit
three categories of documents for an in camera inspection or, in the
alternative, an affidavit from someone with personal knowledge of the relevant
record-keeping process if no such documents existed. (Id.). The State
has submitted several letters addressing this in camera review dated
August 23, 2001, February 4, 2002, and April 3, 2002, respectively. Each of the
three categories of documents will be discussed separately hereinbelow.
1). Grievance Complaints
Claimant sought inmate grievance complaints emanating from Claimant's incident
on October 3, 1999. In response, the State has submitted an affidavit from the
Inmate Grievance Program Supervisor at the Facility (hereinafter "Supervisor").
The State supplied the Supervisor with the names of four inmates, other than
Claimant, named in the Inspector General's file as being involved to some degree
in the incident of October 3, 1999. The Supervisor avers that he conducted a
search of the relevant files and found no complaints filed by any of these other
inmates. As such, Claimant's motion to compel a response to question 9 of
Claimant's Second Demand for Discovery and Inspection is DENIED.
2). Directives 4900 and 4091
This Court directed the State to submit Department of Correctional Services
Directives 4900 and 4091 for an in camera
inspection. (Tyree v State
of New York
, Ct Cl., May 2, 2001, Lebous, J., Claim No.
101474, Motion No. M-63202). Directive 4900 is designated "Security in Gate
Areas" and details security procedures for screening people and/or vehicles
entering a correctional facility. Directive 4091 is entitled "Log Books" and
reviews the circumstances in which entries are to be made in a facility log
book. In this Court's view, these directives "[r]elate to the fundamental
security mission of correctional facilities; moreover, any relevant information
that would be contained in such documents may [be] obtained through other
documents produced pursuant to this decision and order or through a witness or
witnesses at trial." (Guzman v State of New York
, Ct Cl., April 4, 2000,
Marin, J., Claim No. 96524, Motion No. M-60665; see also
, Brown v
State of New York
, Ct Cl., November 5, 2001, Collins, J., Claim No. 103284,
Motion M-63858). As such, Claimant's motion to compel disclosure of Directives
4900 and 4091 is DENIED for the reasons stated
3). Inspector General's File
Claimant seeks to compel the disclosure of the Inspector General's office
investigative file into the October 3, 1999 incident. The subject Inspector
General's file is comprised of approximately 75 numbered pages; various
unnumbered pages; photographs; and a videotape. The State's objections to the
disclosure of this file are primarily contained in a letter dated April 3, 2002.
Although Claimant has not seen the file, he advised the Court that the State's
security concerns are negated by his expected release from prison in the Spring
of 2002. (Claimant's letter dated February 13, 2002).
Generally, disclosure of an Inspector General's investigation file is subject
to the public interest privilege which balances whether "[t]he State's interest
in maintaining the integrity of its internal investigations and protecting the
confidentiality of sources who provide sensitive information within a prison
context, outweighs any interest of the claimant in seeking access to the file
(Cirale v 80 Pine St. Corp., supra, at 117)." (Lowrance v
State of New York, 185 AD2d 268, 269). It is well-settled, however, that
the privilege will not apply when there is no confidential informant involved,
or the information is already known to the parties, or the State has failed to
explain how disclosure would implicate legitimate security concerns. The Court
must balance these issues to determine whether there will be a chilling effect
on such future investigations. (Matter of Klein v Lake George Park
Commn., 261 AD2d 774; LaValle v State of New York, 185 Misc 2d 699,
702; Lamm v State of New York, Ct Cl., May 31, 2001, Fitzpatrick, J.,
Claim No. 99321, Motion No. M-62596; Leonido v State of New York, Ct Cl.,
February 2, 2001, O'Rourke, J., Claim No. 99960, Motion No. M-59804).
For purposes of identification, the State has separated this Inspector
General's file into 9 different sections, 3 of which it contends are not subject
to disclosure. The Court will first address those items to which the State has
objections and will refer to those sections as Objection Packets #1, #2 and
The State's objections to the disclosure
of these items are as follows:
[t]he State continues to object to disclosure of the remaining items, which are
either contained on internal Inspector General forms, are generated in order to
assign or refer the case, or are confidential based on the manner in which they
were obtained. The State maintains that disclosure of these items is not
necessary for the prosecution of the claim, and would hamper the investigative
process conducted by the Inspector General in these cases.
(Cocchiola letter dated April 3, 2002). Unfortunately, the State does not
explicitly relate any of these specific objections to the specific documents in
the Inspector General's file and, as such, the Court will relate the objections
to the documents as best it can. Nor does the State fully articulate how these
objections implicate the public interest privilege considerations noted
hereinabove. Nevertheless, upon reviewing these portions of the Inspector
General's file, the Court finds as follows:
Objection Packet #1:
The Court upholds the State's objection to the two page "Report of Complaint
Progress", because it contains references to certain documents that are not
being disclosed and, in any event, is not material and relevant to the
prosecution of this claim. With respect to the remaining items, however, the
State does not contend that the documents contain information involving a
confidential informant nor does the State explain how disclosure would implicate
any of the public interest privilege considerations. Moreover, it appears that
these documents contain information already known to both parties.
Additionally, the State's remaining arguments, including the objection based
upon disclosure of internal forms, are also without merit. As such, the "Fax
Transmittal Form" (1 page); "Fax Transmittal Form" dated 10/30/00 (1 page);
To/From Memo dated 10/30/00 (1 page); and an unsigned draft affidavit of Sandy
Ray (2 pages) are all subject to disclosure.
Objection Packet #2:
The Court upholds the State's objection to the 2 page "Index Sheet", because it
contains references to certain documents that are not being disclosed and, in
any event, is not material and relevant to the prosecution of this claim. For
the same reasons noted above in relation to Packet #1, the Court finds the
remaining documents are entitled to disclosure including the "Investigative
Report" (2 pages) with appropriate redactions of personal identifying
information permitted; "Receipt of Complaint" dated 10/4/99 (1 page); "Receipt
of Complaint" dated 10/4/99 (duplicate/1 page); and the "Receipt of Complaint"
dated 10/6/99 (1 page).
Objection Packet #3:
The Court finds that the 3 pages consisting of the documents numbered 14, 15
and 16 are not subject to disclosure due to the legitimate security concerns
noted on the face of document #14. With respect to the Inspector General's
letter dated October 15, 1999 (page # 12, 1 page) and the "Complaint Intake
Form" dated 10/10/99 (page #13; 1 page), both are subject to disclosure for the
reasons stated hereinabove in relation to Packet #1. The State may, however,
redact the unrelated internal file numbers listed on page #12.
Remaining Items #1-6
The State does not object to the disclosure of the remaining portions of the
Inspector General's file, subject to certain information being redacted and upon
proper payment for photocopying from Claimant. The Court has reviewed these
items and finds that the requested redactions are proper as outlined
hereinbelow. Consequently, the Court finds that the portions of the Inspector
General's file listed below may be disclosed subject to the following: (1)
Claimant makes proper advance payment to the State for associated photocopying
charges, and (2) the State redacts the information as noted. For purposes of
clarity, the Court quotes directly from the State's letter response dated April
3, 2002, in listing those items to be disclosed:
Item #1. Correspondence between Prisoners' Legal Services of New York, and the
Commissioner of the Dept. of Correctional Services (DOCS), or the Superintendent
or Deputy Superintendent of Southport Correctional Facility, including the
conclusions as to claimant's investigation, as long as the documents are
redacted to delete references to other inmate's unrelated complaints.
Item #2. Correspondence addressed to Inspector Todd from Roxanne Purcell Tyree,
claimant's mother, including letters she included from claimant to her.
Item #3. Inmate Misbehavior Reports, Use of Force Report, "To/From's", Unusual
Incident Report, and memoranda, marked with numbers 17 through 51, excluding the
Employee Accident/Injury Reports (marked with page numbers 30-35) and redacting
the reports as to employee social security numbers....
Item #4. Tier III hearing packet documents, marked with numbers 52 through
Item #5. Report of Strip Search or Strip Frisk, Ambulatory Health Records,
Restraint Order Authorization, Restraint Order Renewal, Deprivation Order, and
Handcuff Retention Strap Authorization, marked with numbers 60 through 68;
Item #6. DOCS identification Polaroids (3); Polaroids from 10/3/99 (4); and
(Cocchiola letter dated April 3, 2002).
Accordingly, Items #1-6 are subject to disclosure by the State upon proper
payment for photocopying costs. Additionally, the State is permitted to redact
confidential information such as social security numbers, birth dates,
addresses, etc. and medical information pertaining to DOCS employees and/or
In sum, as to those portions of the Inspector General's file that the State has
not objected to disclosure, or that the Court has directed disclosure, the State
is entitled to the advanced payment of reasonable copying costs of said
documents. (Gittens v State of New York, 175 AD2d 530). Claimant may,
if he so chooses, obtain copies of any permitted item upon proper payment to the
State. To facilitate this matter, Claimant is directed to advise the Assistant
Attorney General in writing of those portions of the Inspector General's file
identified herein, including the photographs and videotape, that he would like
photocopied. The State should promptly advise Claimant as to the cost of
photocopying the selected documents and/or items. Claimant should then forward
the proper payment for such photocopying to the Assistant Attorney General. Of
course, the parties may make any other arrangements that they deem advisable,
but should make every effort to work out the particulars without the need for
further Court intervention.
Consequently, for the reasons stated above, upon an in camera review of
documents and items specified in this Court's prior Decision and Order, it is
ORDERED that Claimant's motion to compel, Motion No. M-63202, is GRANTED IN PART
and DENIED IN PART, as follows:
(1) Claimant's motion to compel the disclosure of Inmate Grievance Complaints is
DENIED; (2) Claimant's motion to compel disclosure of Directives 4900 and 4091
is DENIED; and (3) Claimant's motion to compel the disclosure of the Inspector
General's file is GRANTED IN PART and DENIED IN PART in accordance with the
May 6, 2002
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
Claimant's letter dated April 7, 2002,
attempts to seek reconsideration of this Court's prior Decision & Order
relative to additional Directives. The Court declines to treat this letter as a
motion. (22 NYCRR § 206.9; CPLR Article 22).
The Court will refer to the individual
documents by title when to do so will not reveal the item's substantive