New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2003-032-058, Claim No. 105074, Motion No. M-66632


Inmate claimant's motion to compel the production of records protected by Mental Health Law §33.13, prison facility log books, and internal policies and procedures related to double cell bunking is granted in part.

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:
Michael Gonzalez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 18, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks compensation for injuries received in an inmate-on-inmate assault that occurred at Upstate Correctional Facility on August 3, 2001. Claimant alleges that as he was speaking to a correction officer, a part of a continuing effort to be separated from his cellmate, Carlos Gonzalez, he was attacked from behind by that inmate. Claimant also alleges that "for almost three weeks prior, the defendant had actual knowledge and notice of the potential danger to the claimant," stating that he had written several letters to officials and filed a grievance "explaining the problem" (Claim, ¶7).

Claimant has now brought a motion to compel defendant to respond to certain discovery demands. He properly sought this discovery by service of a notice (CPLR 3102[a]). When defendant's initial responses were considered by claimant to be unsatisfactory, claimant attempted an informal resolution through correspondence (Gonzalez affidavit, ¶¶ 3, 4). The demands on which the parties have been unable to reach agreement are the following:
1) The mental health record of Carlos Gonzalez;[1]

2) "[A]ll pages from the facility log book of Upstate Correction Facility, 11 Building, for the dates of August 3rd and 4th of 2001''.[2]

3) Response to the following interrogatory: "State whether or not a procedure exists at Upstate Correctional Facility to address double celling issues when problems develop between an inmate and his cellmate, and if so, a) State what the procedures are, or set forth a copy b) State where the written procedures can be found."[3]

4) Response to the following interrogatory: "State whether or not a procedure exists at Upstate Correctional Facility for evaluating inmates for single cell assignments, and if so, a) State what the procedures are, or set forth a copy b) State where the written procedures can be found."[4]

The first demand was rejected by defendant on the ground that the mental health records of the alleged assailant are protected by Mental Hygiene Law §33.13 and that claimant has failed to establish a "demonstrable need" for the records.[5] In addition, the State objected to producing the facility log book or to answering the interrogatories on the ground that disclosure of such information would compromise facility security.[6]

Mental health records

Mental Hygiene Law § 33.13(c) provides that, with certain exceptions, patient-identifying records related to psychiatric treatment maintained by the Office of Mental Health or Office of Mental Retardation and Developmental Disabilities "shall not be released by the offices or its facilities to any person or agency outside of the offices." The two exceptions relevant here are the following:
(1) pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality * * *
(7) with the consent of the patient or client or of someone authorized to act on the patient's or client's behalf, to persons and entities who have a demonstrable need for such information and who have obtained such consent, provided that disclosure will not reasonably be expected to be detrimental to the patient, client or another * * *.
The statute also provides, in subdivision (f), that disclosure under any of the exceptions "shall be limited to that information necessary in light of the reason for disclosure" and that the information disclosed "shall be kept confidential by the party receiving such information".

Claimant states that inmate Carlos Gonzalez has voluntarily consented, in writing, to the release of these records (Gonzalez memorandum, p. 2). The Court has not been provided with a copy of that written consent, however. CPLR 4504(a), to which claimant makes reference, relates only to any individual's release of information that has been made confidential by the ordinary privilege existing between a patient and any physician, dentist, podiatrist, chiropractor or nurse. Such a release can be simply executed and is typically accepted without any formal inquiry. It is arguable, however, that an individual who consents to the release of clinical, psychiatric records pursuant to Mental Hygiene Law §33.13(c)(7) must comply with much more particular requirements of the Department of Mental Hygiene regulation governing when and how a patient may sign a legal instrument (14 NYCRR §22.3). At least one court has accepted this to be the case (Delan v CBS, Inc., 91 AD2d 255 [2 Dept. 1983]). This regulation, 14 NYCRR §22.3, requires, among other things, that there must be a determination that the patient has sufficient mental capacity to understand the nature and consequences of his act and a finding that he is willing to sign the instrument. Without more information about the nature of the consent purportedly signed by Carlos Gonzalez and the circumstances under which it was obtained, the Court is unable to conclude that release of the information is authorized by subdivision(c) (7).

As to whether "the interests of justice significantly outweigh the need for confidentiality" so as to justify the Court's release of the information pursuant to subdivision (c)(1), consideration must be given to the reason it is sought by claimant. A Department of Correctional Services regulation (7 NYCRR §1701.5[c][3]) directs that inmates who are currently classified as "level 1" by the Office of Mental Health are ineligible for double-cell assignments, and that those currently classified as "level 2" or "level 3" must be closely scrutinized before being assigned to a double cell. This claim rests on allegations that defendant inappropriately placed claimant's assailant in a double cell with him and maintained that assignment after receiving notice that there was a potential for violence between the two inmates. It appears to the Court, therefore, that at least information about the OMH classification status, if any, of Inmate Carlos Gonzalez 1) at the time he was assigned to a double cell with claimant and 2) for the three week period prior to the August 3, 2001 assault would be highly relevant to this claim. The very limited nature of that information, as well as the restrictions of confidentiality that are placed on information even after it is released under Mental Hygiene Law §33.13, argue against there being significant prejudice to Inmate Carlos Gonzalez or undue invasion of his privacy.

Facility log book

Claimant's initial request relating to the building log book was, as indicated above, for "all" pages for the building covering a two day period. In connection with the instant motion, he has limited his request to those portions of the log book that contain references to the incident involving claimant and the investigation of that incident or complaint. Counsel for defendant is directed, therefore, to provide to the court 1) a complete unredacted copy of the facility log for the two days in question, and 2) a copy of that same portion of the log with proposed redactions, removing (or blacking out) the information that the State believes would affect institutional security and the privacy of guards and other inmates but allowing access to information that is related to claimant, his assailant, and investigation of the assault.

Policies regarding double cell v. single cell assignments

Defense counsel argues that the internal policies relating to the pairing of inmates in double cell situations should be kept confidential "for reasons of security of the facility" (Rizzo Affidavit, ¶7). Claimant, as one would expect, argues that the criteria for double cell housing contained in the Upstate Correctional Facility - Special Housing Unit Manual[7] and the individual screening/risk assessment sheet that was filled out on his assailant pursuant to 7 NYCRR §§1701.5(e) and 1701.9 are material and necessary to the prosecution of his action (CPLR 3101).

The cases cited by defendant establish only that "the public interest is served by keeping certain government documents privileged from disclosure" (Lowrance v State of New York, 185 AD2d 268 [2d Dept 1992]) and that inmate claimants can be required to produce a list of witnesses prior to trial so that the witnesses can be securely housed (Williams v State of New York, 254 AD2d 749 [4th Dept 1998]). It is not enough, however, to merely assert that there is a security or governmental interest in keeping certain information confidential, for this privilege "could be easily abused, serving as a cloak for official misconduct" (LaValle v State of New York, 185 Misc 2d 699, at 702 [Sup Ct, Dutchess Co 2000], citing to Cirale v 80 Pine St. Corp., 35 NY2d 113, at 119 [1974]). Instead, courts must balance, among other factors, "the need for disclosure, the availability of the information elsewhere, the facts of the case, the sensitivity of the information in question, and the advantages of preserving its confidentiality" (LaValle, supra, at 701). The most effective and appropriate way to balance these concerns is for the Court to conduct an in camera inspection of the material in question and to determine if disclosure of such material would "entail harm to the public interest" (Parker v State of New York, 269 AD2d 255 [1st Dept 2000]). Accordingly, defendant is directed to produce to the Court, for its in camera review, written statements, policies or procedures used to evaluate inmates for double cell bunking; written statements, policies or procedures used to address disputes that arise between inmates sharing a double cell; and the individual screening/risk assessment sheet for Carlos Gonzalez. The State may, if it wishes, submit a second copy of this material showing the redactions that would be satisfactory to the State.

Claimant's motion is granted to the extent indicated above.

June 18, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order to compel certain discovery:
1. Notice of Motion and Supporting Affidavit of Michael Gonzalez, pro se, with Memorandum of Law and annexed Exhibit

2. Affidavit in Opposition of Michael C. Rizzo, Esq., AAG, with annexed Exhibits

Filed papers: Claim; Answer

[1] Claimant's Notice for Discovery and Inspection, demand (4) (Rizzo Affidavit, Exhibit 5).
[2] Id., demand (5).
[3] Claimant's Interrogatories, interrogatory 9 (Rizzo Affidavit, Exhibit 3).
[4] Id., interrogatory 10.
[5] Defendant's Response to Claimant's Notice for Discovery and Inspection, response 4 (Rizzo Affidavit, Exhibit 6).
[6] Id., response 5; Defendant's Response to Interrogatories, responses 9 and 10 (Rizzo Affidavit, Exhibit 4).
[7] The existence of such a manual is established by reference to it in the facility response to claimant's grievance (Gonzalez memorandum, Exhibit A).