New York State Court of Claims

New York State Court of Claims

TURNER v. STATE OF NEW YORK, #2007-039-008, Claim No. 108423, Motion No. M-72434


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:
Law Offices of G. Oliver Koppell & AssociatesBy: G. Oliver Koppell, Esq. and Daniel F. Schreck, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael C. RizzoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 27, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Eugene Turner (hereinafter “movant”) brings this motion to compel disclosure of a report prepared by the New York State Department of Correctional Services’ Office of the Inspector General (hereinafter “report”) following an investigation of a motor vehicle accident on Route I-87 in the Town of North Hudson on August 7, 2002. The accident involved a van that was transferring ten inmates, including movant, from the Clinton Correctional Facility in Dannemora, New York to the Coxsackie Correctional Facilities Regional Medical Unit in Coxsackie, New York. The van was proceeding south on I-87 when the vehicle left the road, struck a series of guide wires and guide wire support posts and traveled over 200 feet before returning to the road. Movant asserts that the report is necessary to prosecute his claim for personal injuries allegedly sustained during the accident, and that no privileged information would be released by disclosure of the report. Defendant opposes the motion and contends that such discovery would “undermin[e] the integrity of the State’s internal investigations” and that the “prison context” of the incident outweighs any interest of movant in obtaining the report. Following a review of the motion, the Court ordered an in camera review of the report, and now makes the following findings of fact and conclusions of law.

The instant report is comprised of two pages and a one page attachment listing the persons contacted during the investigation.[1] The report contains the conclusions of the Inspector General’s senior investigator as to the events preceding the accident and the cause of the accident. It also contains a brief synopsis of statements made by the two correction officers involved in the accident, an off-duty correction officer who arrived on the scene, and the principal state trooper who responded to the accident. Additionally, the report identifies correction staff who responded to the accident scene from a nearby correctional facility. Notably, the names of witnesses to the accident have been disclosed to movant, along with copies of the accident reports, a state police report and a Department of Correctional Services Unusual Incident Report.

Investigatory reports and related materials prepared by the Inspector General may be subject to a public interest privilege and exempt from disclosure (Lowrance v State of New York, 185 AD2d 268 [1992]). However, the “mere assertion of the privilege” is insufficient absent “specific support for the claim of privilege” (Cirale v 80 Pine St. Corp., 35 NY2d 113, 118 [1974]; see also Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8-9 [1999]; Lamm v State of New York, Ct Cl, Fitzpatrick, J., May 31, 2001, UID # 2001-018-87). More pointedly, the governmental agency invoking the privilege must “come forward and show that the public interest would indeed be jeopardized by a disclosure of the information. Otherwise, the privilege could be easily abused, serving as a cloak for official misconduct” (Cirale v 80 Pine St. Corp., supra at 119). Nor is “a mere showing by a private litigant in a civil case that information sought would be helpful to secure ‘useful testimony’ . . . enough to override a demonstrated or manifest potential harm to the public good” (Matter of World Trade Ctr. Bombing Litig., supra at 9).

In evaluating the applicability of the privilege, the Court must conduct a fact-specific inquiry and balance 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, supra at 269). Significantly, “[t]he privilege . . . does not apply in situations where there is no confidential informant . . . [where] the information is already known to the parties . . . [where] legitimate security concerns will not be implicated if disclosure is ordered” (Verges v State of New York, Ct Cl, Midey, J., September 27, 2004, UID # 2004-009-59), or where the information is available elsewhere (see LaValle v State of New York, 185 Misc 2d 699, 703 [2000]).

Upon balancing the specific facts of this case, the concern for the safety of employees and inmates at the facility, the claimant’s right to disclosure, the availability of the information from other sources, the sensitivity of the information and the policy rationale behind nondisclosure (see e.g. Executive Law § 6; 9 NYCRR § 5.39), the Court finds that the report must be disclosed to movant. Under the present circumstances, the Court is not persuaded that the public interest privilege applies so as to exempt the report from disclosure. While courts have properly balanced the risks of releasing confidential material from an Inspector General’s file that may implicate the security concerns prevalent in a prison system or compromise private information, the disclosure of which would create a chilling effect on the willingness of witnesses to come forward with truthful information, such facts and exigencies are not present in the instant case.

Here, the circumstances are not akin to the classic prison context where disclosure would raise security concerns, endanger an inmate or a correctional employee, disrupt the administration of the facility or reveal sensitive information regarding prison operations (see e.g. Matter of Argentieri v Goord, 25 AD3d 830 [2006] [Inspector General’s documents related to alleged filing of false misbehavior report against inmate]; Lowrance v State of New York, supra [material developed by Inspector General during its investigation of a grievance by inmate against correction officer]; LaValle v State of New York, supra [Inspector General’s investigative material arising from employee’s allegations of sexual abuse and harassment at two juvenile detention centers]; Shantelle S. v State of New York, 11 Misc 3d 1088 (A) [2006] [Inspector General’s report regarding alleged sexual assault of inmate by correction officer]; Verges v State of New York, supra [Inspector General’s investigative notes regarding alleged failure to adequately supervise inmates in claimant’s housing dormitory]). Rather, the report at issue concerns a traffic accident involving correction officers and inmates on a public highway that occurred miles away from the correctional facility where the trip began, which led to claims of negligence and personal injury by the claimant. The report simply addresses the underlying facts and likely causes of the incident. The key witnesses are already known to movant, and those who are not appear to be incidental fact witnesses who gave assistance at the accident scene or were correctional personnel who played a role in the procedures and paperwork ordinarily associated with an accident of this nature. Moreover, the Court finds no sensitive information in the report that would jeopardize the safety or disrupt the day-to-day operations of the prison facility.

Accordingly, the Court finds no legitimate basis to withhold disclosure of the report and directs that the report be disclosed to movant. The Court notes that defendant also provided additional background material, including the Inspector General’s case file, for in camera review. However, the additional material provided is not a subject of the instant motion and, accordingly, the material is being returned to defendant. Therefore, based upon the foregoing, it is

ORDERED, that Motion No. M-72434 is hereby GRANTED, to the extent provided herein, and is limited to the two page report and one page attachment to the report identifying the contact list of persons involved, and it is further

ORDERED, that any social security numbers of individuals identified on the attached page be redacted prior to disclosure, and it is further

ORDERED, that the disclosure directed herein shall be made by defendant to movant, along with a copy produced for this Court, within 20 days from the filing date of this decision and order with the Clerk of the Court of Claims.

February 27, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion to Compel Disclosure filed on October 23, 2006;

2. Affirmation in Support of Motion to Compel Disclosure dated October 17, 2006 and exhibits;

3. Affidavit in Opposition to Motion to Compel Disclosure sworn to on November 6, 2006;

4. Reply Affirmation in Support of Motion to Compel Disclosure dated November 13, 2006; and

5. Inspector General’s Report dated April 25, 2002.

[1]. The Court notes that the report is dated April 25, 2002 which is before the date of the accident in August 2002.