Notice of Motion, Affidavit, with Exhibits 1,2
Answering Affirmation, with Exhibits 3
Theresa Washby, both individually and as the mother and natural guardian of
Lawrence Buggs, an infant, has brought this claim alleging that on July 31,
2002, her son, while a resident at MacCormick Secure Center in Tompkins County,
suffered injuries when he was shoved against a wall by one Anthony Bower, an
employee of the facility. Claimant alleges that Lawrence Buggs suffered both
physical injuries and emotional trauma caused by this allegedly inappropriate
and excessive physical force. In claimant's "Notice to Produce" claimant has
requested various documents and records related to this incident. Defendant
contends that such records and documents are immune from disclosure, citing
Executive Law § 501-c, Social Services Law § 422, and Public Officers
Law § 96.
Nevertheless, in his affirmation submitted in opposition to this motion,
defendant's attorney acknowledges that he has been provided with the records and
documents responsive to claimant's requests by the New York State Office of
Children & Family Services, and that defendant has no objection to an in
camera inspection of these records by the Court. Defendant's attorney has
requested, however, that should this Court ultimately determine that such
records and documents, or any part of them, must be disclosed, that such
disclosure be limited by a Stipulation of Confidentiality (see proposed
"Stipulated Confidentiality Order", set forth as Exhibit 1 to Item 3).
Claimant's attorney has advised the Court that he will consent to such a
confidentiality order should this Court ultimately determine that disclosure of
these records is warranted.
From the descriptions provided in the motion papers, it appears that the
records and documents sought by claimant may be "material and necessary" to the
prosecution of this claim (CPLR § 3101[a]). Therefore, the scope of
disclosure must be determined by balancing the broad disclosure dictates of
§ 3101 with the statutory privileges cited by defendant. An in
camera inspection of these records and documents is therefore appropriate.
Before ordering the production of all such records for an in camera
inspection, however, the Court notes that claimant has included within the
"Notice to Produce" a demand for production of the personnel file of Anthony
Bower, the employee involved in this incident with the infant Lawrence Buggs.
(See Exhibit E to Items 1,2, "Rider to Notice to Produce", par. 9).
Disclosure of an employee's personnel file, however, is restricted by the
provisions of Public Officers Law § 96, contained within the article known
as this State's "Personal Privacy Protection Law". Pursuant to § 96, 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). The statute, however, does permit the
release of personal information "pursuant to a court ordered subpoena or other
compulsory legal process." (Public Officers Law § 96[k]). There must,
however, be a rational basis for such an order, in order to protect employees
from harassment, reprisals, and mere fishing expeditions.
In this motion, claimant has not demonstrated any reason, much less a
compelling reason, to justify an intrusion into this employee's personnel file.
In reaching this decision, however, the Court is aware that during the course of
discovery facts may come to light which may establish a material and compelling
need for such disclosure. If claimant eventually believes that the disclosure
of Mr. Bower's personnel file is warranted, and that such need can be
demonstrated, claimant's attorney is directed to advise these Chambers and
request a conference on this issue as required by § 206.8(b) of the Uniform
Rules for the Court of Claims.
Accordingly, at this time defendant is not required to provide the Court with
the personnel file for Anthony Bower.
Pursuant to the foregoing, it is therefore
ORDERED, that Motion No. M-68761 is hereby, GRANTED, to the extent that
defendant shall submit to the Court, for an in camera inspection, the
documents and records responsive to claimant's "Notice to Produce" (except for
the personnel file of Anthony Bower), within 30 days of the date of filing of
this decision and order; and it is further
ORDERED, that the aspect of claimant's motion seeking the production of the
personnel file for Anthony Bower is hereby DENIED, without prejudice; and it is
ORDERED, that once the Court has completed its in camera inspection of
such records and documents, and after it has made its determination as to
whether such records and documents, or any part of them, must be disclosed, the
Court will establish new dates for the completion of all discovery, as well as
the service and filing of a note of issue and certificate of readiness.