Claimant's Reply Affirmation 4
In this claim, claimant, an inmate at Cape Vincent Correctional Facility,
alleges that the State failed to adequately supervise his housing dormitory on
August 10, 2001, and that the State failed to take reasonable steps to protect
him from a foreseeable risk of attack which occurred that day. He alleges that
a single correction officer was assigned to his housing area, and that this
officer had left this area unsupervised when the attack occurred.
As set forth in the motion papers, claimant served defendant with his "First
Combined Demand for Discovery" on or about August 25, 2003. Defendant
previously provided responses to certain of these demands, and the Court
previously "so ordered" a stipulation providing for the disclosure of certain
investigative materials from the Department of Correctional Services (see
Exhibit C to Items 1,2).
There remains certain documents, however, that defendant has refused to
disclose, even pursuant to a stipulation of confidentiality. The Court will
address each of these items, and for the sake of clarity will utilize the
paragraph numbers set forth in claimant's "First Combined Demand for
In its consideration, the Court is aware of the unique issues presented within
the context of the correctional facility setting. The Court must balance
concerns for the safety of inmates and employees at the facility, as well as
concerns affecting the efficient administration of the facility, with claimant's
rights to full disclosure under CPLR 3101.
¶ 2 - INTERNAL INVESTIGATIVE DOCUMENTS
Claimant seeks access to documents pertaining to the internal investigation of
the August 10, 2001 incident in which claimant was injured. Pursuant
to the stipulation of confidentiality, defendant has previously provided to
claimant all internal investigative documents regarding this incident except for
the report of the investigation conducted by the Inspector General. Defendant
objects to the disclosure of this document, asserting the public interest
In her response to this motion, defendant's attorney has submitted the
investigative notes made by the Inspector General in the investigation, which
apparently is the only document that has not been produced pursuant to this
particular demand. The Court has reviewed this document, which consists of the
investigator's notes pertaining to two separate and apparently unrelated
incidents which occurred on different dates at Cape Vincent Correctional
Disclosure of an Inspector General's investigation file is generally subject to
the public interest privilege which balances 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"
(Lowrance v State of New York, 185 AD2d 268, 269). The privilege,
however, does not apply in situations where there is no confidential informant,
or if the information is already known to the parties, or whether legitimate
security concerns will not be implicated if disclosure is ordered.
The Court notes that this investigation of the incident in question has been
completed. Additionally, and as pointed out by claimant's counsel, the State
has already obtained a criminal conviction against claimant's assailant.
Accordingly, there does not appear to be any overriding public interest in
continuing the confidentiality of this investigation. Additionally, after
reviewing the document which has been submitted in camera, the Court
finds no public interest in maintaining the confidentiality of the investigation
and that security concerns will not be implicated should this document be
disclosed, especially if made pursuant to a stipulation of confidentiality.
Accordingly, the Court hereby directs that the Inspector General's
investigative notes be disclosed to claimant, with such disclosure to be made
under the same terms and conditions of the prior stipulation of confidentiality
previously agreed to by the parties. Furthermore, such disclosure shall be
limited to the Inspector General's notes pertaining to the incident of August
10, 2001, and any such notes pertaining to the unrelated incident of August 8,
2001 shall be redacted prior to such disclosure.
¶ 4 - DEPARTMENT OF CORRECTIONAL SERVICES POLICIES AND PROCEDURES REGARDING
SUPERVISION OF HOUSING BLOCKS
Claimant seeks an order compelling the State to produce its policies and/or
procedures regarding the supervision of inmates on housing blocks at Cape
Vincent Correctional Facility. Defendant has opposed this demand, on the basis
that such documents are irrelevant to the claim at hand, and that dissemination
of this information implicates fundamental security issues at the correctional
In this matter, however, claimant maintains that his dorm area was left
unsupervised, providing his assailant with the opportunity to attack him. Since
the basis of this claim relates to the supervision, or alleged lack of
supervision, of his housing dorm, the directives pertaining to housing policies
at the facility are particularly relevant, and should be disclosed. In order to
minimize the risk to inmates and staff at the facility, such disclosure shall
also be subject to the same terms and conditions as contained in the prior
stipulation between the parties regarding discovery.
¶ 18 - DEPARTMENT OF CORRECTIONAL SERVICES DOCUMENTS CONCERNING INMATE
In this demand, claimant seeks any and all documents maintained by the
Department of Correctional Services regarding Nelson Brana, the inmate who was
convicted of the assault upon claimant.
In this motion, claimant has withdrawn his request for Mr. Brana's medical file
and mental health file (see claimant's Motion to Compel Disclosure [Item 2], pg.
11. fn.6), thereby limiting this request to the disciplinary records of Mr.
Brana. Defendant has submitted for an in camera review a computer
generated listing of Mr. Brana's disciplinary history, which contains
information such as incident dates, hearing dates, references to the facility
regulation allegedly violated, disposition, and penalty imposed, if any.
It is well settled that evidence of an attacker's prior behavior may often be
material, relevant, and necessary in the prosecution of a claim based upon an
inmate-on-inmate assault (Wilson v State of New York, 36 AD2d 559). The
propensity of an inmate to commit a violent act, if established by said
disciplinary history, may be relevant to the issue of whether the State had
notice of such propensity. Based on its review of the "Inmate Disciplinary
History" provided in camera, the Court finds that two prior incidents may
be relevant and material to this claim. Defendant is therefore directed to
provide copies of records pertaining to incidents which occurred on August 7,
2000 and March 13, 2001 to claimant's counsel. Again, it is directed that such
disclosure be made subject to the same terms and conditions set forth in the
prior stipulation of confidentiality between the parties.
¶ 14 AND ¶ 15 - PERSONNEL FILES AND RECORDS
In paragraph 14 of his demand, claimant seeks the personnel file of each
employee who was assigned responsibility for the safety of inmates on claimant's
dormitory unit on the date of the incident, and in paragraph 15 claimant seeks
training records, evaluations, disciplinary records, recommendations, and
reports and records of counseling sessions for each such employee.
As set forth in the motion papers, Correction Officer Terry J. Davis was the
only correction officer on duty in this dorm when the incident occurred, and
these demands pertain solely to him.
In his claim, claimant alleges that Correction Officer Davis was not at his
post at claimant's dormitory, and that the dormitory unit was left unsupervised
for a period of time, thereby providing his assailant with the opportunity to
attack claimant. Claimant has also alleged a cause of action in his claim for
negligent supervision (see Verified Claim, ¶ 19).
Defendant has opposed this request, contending that such disclosure is
protected by Civil Rights Law § 50-a. This statute protects all personnel
records of correction officers that are used to evaluate "performance towards
continued employment or promotion" (Matter of Prisoners' Legal Services v New
York State Dept. of Correctional Services, 73 NY2d 26, 31). Records
protected by § 50-a may only be produced if the officer provides an express
written consent, or a lawful order is issued by a court mandating such
disclosure. Such an order, however, may only be issued after all interested
parties have been provided an opportunity to be heard.
The legislative purpose behind § 50-a was "to prevent abusive exploitation
of personally damaging information contained in officers' personnel records" by
prohibiting disclosure "except when a legitimate need for them has been
demonstrated" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d
Based upon the allegations set forth in this claim, an in camera review
of Officer Davis' personnel file may be warranted. Before ordering such review,
however, the Court must provide Correction Officer Davis, as well as the
defendant, an opportunity to appear for a hearing before any such request for
in camera review is decided. Accordingly, Correction Officer Davis and
the defendant are provided 45 days from the date of filing of this order to
notify the Court whether they wish to appear for such a hearing. Defendant is
also directed to provide Correction Officer Davis with a copy of this order
within 10 days after the date of filing, to ensure that he has notice of these
Accordingly, based on the foregoing, it is
ORDERED, that Motion No. M-68185 is hereby GRANTED, to the extent provided
herein, and it is further
ORDERED, that any disclosures directed herein shall be produced to Chambers
within 60 days from the filing date of this decision and order with the Clerk of
the Court of Claims, and it is further
ORDERED, that any aspect of this motion pertaining to the disclosure of
personnel records protected by Civil Rights Law § 50-a is, by necessity,
adjourned without date.