Juan Saldana, the Claimant herein, alleges in Claim Number 103172 that he was
assaulted and battered by three correction officers at Green Haven Correctional
Facility (hereafter Green Haven) on July 28, 2000. By Decision and Order of the
Court the Defendant was directed to produce, for in camera inspection, a
copy of the report of the Inspector General relating to the incident that is the
subject of this Claim. [Saldana v State of New York, Claim No. 103172,
Motion No. M-65471, Waldon, J. October 25, 2002]. Defendant was further
directed to submit whatever objections it wished to assert regarding disclosure
of specific portions of the report.
The Court has had an opportunity to review the report provided, as well as
Defendant's objections, and the relevant authority for ascertaining whether any
portion of the Inspector General's report may be disclosed to Claimant, an
inmate still within the custody of the New York State Department of Correctional
Services (hereafter DOCS). See, Cirale v 80 Pine St. Corp., 35
NY2d 113, 117 (1974); Lowrance v State of New York, 185 AD2d 268 (2d Dept
1992); Tyree v State of New York, (Ct Cl), Lebous, J., May 6, 2002, UID
#2002-019-530, www.nyscourtofclaims.state.ny.us/decisions ; Lamm v
State of New York, (Ct Cl), Fitzpatrick, J., May 31, 2001, UID
#2001-081-87, www.nyscourtofclaims.state.ny.us/decisions; Lamm v
State of New York, (Ct Cl), Fitzpatrick, J., November 26, 2002, UID
#2002-018-195, www.nyscourtofclaims.state.ny.us/decisions; Leonido v
State of New York, (Ct Cl), O'Rourke, J., February 2, 2001, UID
#2000-017-613, www.nyscourtofclaims.state.ny.us/decisions; La Valle v
State of New York, 185 Misc 2d 699 (Dutchess Co Sup Ct 2000). The report
contains 344 pages, and includes transcripts of witness interviews, reports of
interviews, internal memoranda, reports of complaint progress, correspondence,
photographs, and computerized tour of duty logs.
In accordance with Lowrance v State of New York, supra, at 269,
an inmate in a correctional facility is not generally entitled to disclosure of
a report developed by the Inspector General's office in connection with an
investigation of allegations against correction officers pursuant to the public
interest privilege, " ‘...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 (1974). The privilege is a
qualified one, applicable depending on whether "...the 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, supra, at 268, 269.
Defendant has specifically requested that the following materials contained in
the report not be given to Claimant:
1. All Social Security numbers as well as any other specific identifying data
of people to prevent identity theft and protect the safety of law enforcement
personnel and their families.
2. Photographs of DOCS staff which, if disseminated amongst the prison
population, could threaten security.
3. Reports of all interviews and transcripts of all interviews, except for the
report on the interview of claimant himself.
4. Any evaluation or recommendation by the Inspector General's office.
5. All attorney/client communications.
6. All reports of complaint progress and index sheets.
7. All DOCS letterheads.
In this case, the Inspector General's report contains numerous documents either
already supplied or available from other sources - Claimant's ambulatory health
record, for example, and internal memoranda such as report of inmate injury
forms - that need not be discussed at length here. More importantly,
Lowrance v State of New York
, specifically stated that the
claimant therein was not entitled to the contents of the Inspector General's
file, including "...several interviews with Correction Officers and inmates,
together with notes, conclusions and the recommendations of the investigator."
It is true, that most of the individuals interviewed by the Inspector General
are known to Claimant, in that they are named in his Claim or have otherwise
been disclosed pursuant to prior discovery requests. Nonetheless, the court
finds that the controlling precedent as stated in Lowrance v State of New
, under circumstances such as these is to prohibit such
disclosure given the policy considerations behind the creation of the office of
the Inspector General, [See
, Executive Law §6; 9 NYCRR
§§4.103 and 5.39; Lamm v State of New York
, (Ct Cl),
Fitzpatrick, J., May 31, 2001, UID #2001-081-87,
as well as the security interests of a given
correctional facility. With respect to reports of interviews and transcripts of
question and answer proceedings, these are the product of compulsion. The
testimony is compelled with the understanding that the witness may be subject to
discipline, but with the further understanding that statements made are
otherwise not to be disclosed. [See, generally
, Civil Service Law
§§75, 76; and Article 33 of the Agreement between the Professional,
Scientific and Technical Services Unit and Public Employees Federation (PEF)
concerning "interrogation" of an employee.] If the results of such
investigations were to be disclosed by a mere request - not supported by any
showing of necessity - the chilling effect upon the willingness of both those
under investigation and other witnesses to come forward and speak frankly to
investigators would negate the purpose of such an internal investigation.
The Court is not unmindful that other decisions have allowed disclosure of
portions of the Inspector General's file to inmates in circumscribed fashion.
See, e.g., Tyree v State of New York, supra; Lamm v
State of New York, supra; Leonido v State of New York,
supra. Nonetheless, the Court finds that the public interest in
preserving the confidentiality of investigations conducted by the office of the
Inspector General, as well as security concerns surrounding disclosure of
information to individuals in the custody of DOCS, outweighs any entitlement
Claimant may have to disclosure under general principles of materiality and
Moreover, this does not preclude Claimant's ability to avail himself of other
discovery devices, such as, for example, interrogatories [See, Civil
Practice Law and Rules §§3130, 3131, 3132, 3133], or depositions of
the individuals involved upon motion. See, Civil Practice Law and Rules
Accordingly, copies of the following materials shall be provided to Claimant
upon his written request to the Attorney General, and his payment of the costs
for photocopying same: