New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2004-032-061, Claim No. 107072, Motion Nos. M-68343, M-68512


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):
M-68343, M-68512
Cross-motion number(s):

Claimant's attorney:
Arrello Barnes, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 28, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


In his first motion, Motion No. M-68343, claimant submitted a one page notice of motion seeking to compel the production of the following items:
1. A videotape of Building 10, B-1 gallery, cells 1 through 13, taken on September 18, 2002, between the hours of 11:30 a.m. and 12:30 p.m.
2. An audiotape covering B-1 gallery for the same time period
3. "Medical Records, all by itself"

Counsel for defendant has informed the Court that claimant previously served a discovery demand for these items, along with others, and that defendant had responded by denying the first two on the grounds that they implicated the security of the facility. Defendant's response to the request for medical records was to inform claimant that he could review a copy of his medical records from the facility where he is currently housed (King affirmation, Exhibit A).
In his second motion, Motion No. M-68512, seeking to compel discovery of the same items, claimant suggests that the indicated videotape and audiotape of the housing unit be held by the Court until the case is ready for trial. The Court proposes another compromise measure in recognition of the fact that the security risks involved in permitting an inmate to view the videotape and listen to the audiotape of an entire housing unit area are significant. After witnesses have testified and other evidence produced at trial of this action, if the Court determines that the information on those tapes would be necessary and material to claimant's case and impossible to obtain in any other manner, the record of the trial will remain open and arrangements will be made for an in camera review of the material. This prevents any interference with institutional security unless the need for such interference is significant and inescapable.
With respect to the request for claimant's medical records in the second motion, claimant has attached, as exhibits, two responses that he received from the employees at Upstate Correctional Facility indicating that in order to have access to such, claimant must first submit a disbursement of $6.50 to cover the cost of staff time expended in connection with his request. Read together, these communications indicate that DOCS is requiring that this charge be paid in order for claimant to simply look at his medical records and that there would be additional charges if photocopies of any of the documents were requested.
The August 6, 2003 memorandum to claimant from the Medical Records Clerk II reads as follows:
Your request to view your medical records has been processed. Please send a disbursement form to this office for the amount of $6.50 to cover the cost of staff time.
In accordance with Section 18 of Public Health Law, DOCS HSPM #4.10 and Directive #2788 Revision Notice (dated 5/30/03) staff costs for locating, making available for review and copying such records are charged to the inmate. Charges are based on a standardized employee hourly wage of $13.00 charged in 15 minute segments.
As soon as the disbursement is processed, I will send the requested copies to you for review.
While that communication could be read as suggesting that a copy of the record would be produced and given to claimant, the subsequent August 18, 2003 memorandum from the Nurse Administrator makes it clear that the $6.50 charge is related only to the time necessary to make the records available for review, not for the cost of any photocopies of those records:
I am in receipt of your letter to Superintendent Girdich, dated 8/10/03, regarding your medical records.
As you were previously advised by the Medical Records Clerk II, you must submit a disbursement form for the amount of $6.50 to cover the cost of staff time used in processing your records for review. This is done in accordance with Section 18 of Public Health Law, DOCS HSPM #4.10 and Directive #2788 Revision Notice (dated 5/30/03).
Upon receipt of your disbursement, your records will be made available to you for viewing.
The relevant portion of Public Health Law §18 reads as follow:
(2)(e) The provider may impose a reasonable charge for all inspections and copies, not exceeding the costs incurred by such provider. * * * However, the reasonable charge for paper copies shall not exceed seventy-five cents per page. A qualified person shall not be denied access to patient information solely because of inability to pay.
(Emphasis supplied.)
It appears from the memoranda quoted above that DOCS interprets this provision to authorize imposing a "reasonable charge" whenever an inmate wishes to inspect his own medical record. Such a reasonable charge, according to DOCS, is a monetary amount that represents at least fifteen minutes of staff time.
It is well established that DOCS may charge for hard copies of pages of patient's medical records when such copies are requested by the patient (see, e.g., Dawes v Selsky, 286 AD2d 806 [3d Dept 2001]; McCrossan v Buffalo Heart Group, 265 AD2d 875 [4th Dept 1999], lv dsmsd 94 NY2d 932; Boltja v Southside Hosp., 186 AD2d 774 [2d Dept 1992]). The situation regarding actual hard copies is no different when inmates request copies of portions of their medical records that are in DOCS custody (see Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]; Mapp v State of New York, 69 AD2d 911 [3d Dept 1979]; Price v State of New York, 2004 WL 1631755 [Ct Cl 2004]; Sebastiano v State of New York, 112 Misc 2d 1027 [Ct Cl 1981]; Civil Rights Law §79).
It has also been noted that Public Health Law §18 coexists with a well developed body of case law that "permit[s] patients to inspect their medical and dental records upon the theory that while doctors and dentists have nonexclusive custodial rights in their patients' records, the patients themselves [possess] a ‘property right' sufficient to afford them ‘reasonable access'" to such records for any purpose (Casillo v St. John's Episcopal Hosp., 151 Misc 2d 420, 422 [Sup Ct, Suffolk Co 1992] and cases cited therein). Again, there is a parallel right for DOCS inmates to access their medical records kept by the facility (see, Tyree v State of New York, UID #2001-019-524, Claim No. 101474, Motion No. M-63202, April 19, 2001, Lebous, J. ["Claimant has the option of requesting that defendant provide him reasonable access to review documents or other items in lieu of requesting photocopies"]). Arrangements for such access are "subject to whatever security restrictions the New York State Department of Correctional Services deems appropriate" (Wynn v State of New York, UID #2003-019-513, Claim No. 106689, Motion Nos. M-66237, CM-66312, February 14, 2003, Lebous, J.; see generally Sebastiano v State of New York, 112 Misc 2d 1027, supra).
The original version of this statute, which was enacted in 1986, contained the language quoted above: "The provider may impose a reasonable charge for all inspections and copies . . ." The only official memorandum, from then Governor Mario Cuomo, makes no reference to this portion of the statute regarding charges that can be made, either for copying or for inspection. Because the statute expressly states that reasonable charges can be imposed for permitting inspection, as well as copying an individual's medical records, it appears that imposition of a reasonable charge for staff time associated with arranging inspection of medical records is authorized by Public Health Law §18(2)(e).
Claimant's motions are denied, with the exception that the Court may direct production of the requested videotape and audiotape if there appears to be a need for the information they contain after trial has been held.

September 28, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's essentially identical motions for an order compelling the production of certain discovery (Motion No. M-68343 and Motion No. M-68512)
1. Notice of Motion No. M-68343 of Arrello Barnes, pro se

2. Affirmation of Glenn C. King, Esq., AAG, with annexed Exhibit

3. Notice of Motion No. M-68512 of Arrello Barnes, pro se, with annexed Exhibits

4. Letter reply of Glenn C. King, Esq., AAG

5. Claimant's letter dated June 21, 2004

6. Claimant's letter dated July 2004

Filed papers: Claim; Answer