New York State Court of Claims

New York State Court of Claims

S. v. THE STATE OF NEW YORK, #2008-030-549, Claim No. 107224, Motion No. M-74493


Synopsis


Production for in camera inspection of complete, paginated, certified copies of correction officer’s personnel file and investigative files maintained by Inspector General directed. Claim alleges improper sexual contact between claimant and correction officer or former correction officer. Correction officer has been noticed as required with regard to personnel records. Court finds that there is a substantial likelihood that material and relevant information necessary to the prosecution of the claim may be found. Defendant to furnish privilege log with specific objections to release of material furnished for inspection.

Case Information

UID:
2008-030-549
Claimant(s):
SHENYELL S.
1 1.The claimant’s name has been redacted due to confidentiality concerns.
Claimant short name:
S.
Footnote (claimant name) :
The claimant’s name has been redacted due to confidentiality concerns.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107224
Motion number(s):
M-74493
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
REBECCA HOULDING, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: RACHEL ZAFFRANN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 8, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant’s application for an order granting in camera review of certain records concerning a correction officer pursuant to Civil Rights Law §50-a, as well as investigative records of the Office of the Inspector General:
1,2 Notice of Motion; Affirmation in Support by Rebecca Houlding, Attorney for Claimant and attached exhibits

  1. Affirmation in Response by Rachel Zaffrann, Assistant Attorney General and attached exhibits
4,5 Affirmation of Service by Rebecca Houlding, Attorney for Claimant, dated April 23, 2008; Affirmation of Service in Support of Claimant’s Civil Rights Law 50-A Motion by Rebecca Houlding, Attorney for Claimant, dated July 23, 2008

5-8 Filed papers: Claim, Answer, Shenyell S. v State of New York, Claim No. 107224, Motion No. M-74493, Interim Decision and Order, unreported (Scuccimarra, J., March 27, 2008); Shenyell S. v State of New York, Claim No. 107224, Motion No. M-74493, Interim Decision and Order, unreported (Scuccimarra, J., June 26, 2008)


This claim involves alleged improper sexual contact between claimant, an inmate at Bedford Hills Correctional Facility and a correction officer or former correction officer. The claim was filed by the inmate on January 21, 2003, alleging acts occurring in October through December 2001. Among other reasons, defendant has opposed the document disclosure requests by indicating that the documents in question may not be disclosed other than by compliance with Civil Rights Law §50-a. Under the statute, the subject of the motion, namely, the correction officer, has been provided with an opportunity to be heard on claimant’s request, in accordance with two prior Interim Decision and Orders. [See Shenyell S. v State of New York, Claim No. 107224, Motion No. M-74493, Interim Decision and Order, unreported (Scuccimarra, J., March 19, 2008); Shenyell S. v State of New York, Claim No. 107224, Motion No. M-74493, Interim Decision and Order, unreported (Scuccimarra, J., June 26, 2008)].

Claimant seeks production of the complete personnel file maintained by the correction officer’s employer, for in camera inspection by the court pursuant to Civil Rights Law §50-a as well as production of any investigations maintained by the Office of the Inspector General regarding this correction officer also for in camera inspection.

The standards for whether the personnel records[2] should be produced for inspection are expressed in the statute, and have been satisfied herein.

Civil Rights Law §50-a provides in pertinent part:

“1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of . . . a department of correction of individuals employed as correction officers . . . shall be considered confidential and not subject to inspection or review without the express written consent of such . . . correction officer . . . except as may be mandated by lawful court order.

2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.

3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting . . . ”


With regard to the substantive aspects of this application, the defendant argues the proverbial fishing expedition as a bar to disclosure. Based on the causes of action that may be made out in the claim premised on the State’s negligence, however inartfully drawn at the time of filing by the then pro-se inmate claimant, the Court finds that there is a substantial likelihood that material and relevant information necessary to the prosecution of the claim may be had in the files under discussion. See generally Civil Practice Law and Rules §3101.

In reviewing the sworn allegations contained in the claim[3], and considering the elements needed to be proven in order to sustain her burden of proof against the State of New York, and in further consideration that this “. . . initial inquiry must be viewed liberally since the party seeking the information will not typically have the precise information regarding what is contained in the personnel file . . . (citation omitted)” [Randall v State of New York, UID # 2003-018-239, Claim No. 100522, Motion No. M-66072 (Fitzpatrick, J., July 15, 2003)], the Court is marginally satisfied that claimant has established a sufficient basis warranting review of the personnel record of Correction Officer T., in camera, to determine if there is evidence that is material and relevant to the causes of action asserted herein.

With regard to any files maintained by the Inspector General, the public interest privilege is implicated with respect to any disclosure of the records maintained by such office. Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 (1974); Lowrance v State of New York, 185 AD2d 268 (2d Dept 1992); cf. LaValle v State of New York, 185 Misc 2d 699 (Sup Ct Dutchess Co 2000). In accordance with Lowrance v State of New York, supra, at 269, an inmate in a correctional facility is not generally entitled to disclosure of a report developed by the Inspector General’s Office in connection with an investigation of allegations against correction officers pursuant to the public interest privilege, which is “. . . applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality . . . (citations omitted).” Cirale v 80 Pine St. Corp., supra, at 117. The privilege is a qualified one, applicable depending on 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 (Cirale v 80 Pine St. Corp., supra, at 117).” Lowrance v State of New York, supra at 269.

The controlling precedent as stated in Lowrance v State of New York, supra, where an inmate seeking access is still incarcerated, is to prohibit such disclosure given the policy considerations behind the creation of the Office of the Inspector General, [see Executive Law §6; 9 NYCRR §§4.103 and 5.39]; Lamm v State of New York, Claim No. 99321, Motion No. M-62596, UID # 2001-081-87 (Fitzpatrick, J., May 31, 2001)[4] as well as the security interests of a given correctional facility.

On the other hand, in the normal course, determination as to whether some overriding public interest in confidentiality outweighs claimant’s entitlement to obtain material and necessary information may be made after production of the Inspector General’s file to the court for in camera review. Clearly, where the claimant is represented by counsel and conditions upon any disclosure may be directed[5], some of the concerns expressed in Lowrance, supra and Lamm, supra, are avoided.

Claimant’s motion is granted to the following extent: within 45 days of the date of filing of this decision and order, the defendant shall provide to the Court a complete certified copy of the personnel file maintained by the employer including but not limited to any pre-hiring investigation, as well as the disciplinary history of Correction Officer T.[6], from the date of his employment to and including December 31, 2001 in sealed form, for in camera inspection in accordance with Civil Rights Law §50-a(3). Additionally, defendant shall provide to the Court a complete certified copy of files of investigations maintained by the Inspector General concerning Correction Officer T., from the date of his employment through any investigation and conclusions concerning this incident, in sealed form, for in camera inspection. The records so provided shall be certified by the agency providing them, identified, and consecutively paginated for ease of reference. If the defendant has specific objection to information contained therein, they are to include a privilege log related to the specific document, including its page, as well as any argument concerning the privilege asserted. After in camera review, the Court will determine what portions, if any, are subject to disclosure and direct the defendant accordingly.


August 8, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2].Investigative records maintained by the Office of the Inspector General, however, are not records used to evaluate performance related to continued employment or advancement pursuant to Civil Rights Law §50-a.
[3]. Civil Practice Law and Rules §105(u) indicates that “. . . [a] ‘verified pleading’ may be utilized as an affidavit whenever the latter is required.”
[4]. Judge Fitzpatrick stated: “The purpose of the office, according to both executive orders, is to investigate complaints in an effort to prevent fraud, abuse, and corruption in State agencies, departments and divisions.”
[5]. For example, although generally this is a matter for stipulation between counsel, the court may nonetheless order that disclosure of any information be authorized solely for use by claimant's counsel in prosecuting this claim and shall not be copied or otherwise disseminated to inmates for any reason.
[6].The officer’s name has been redacted herein due to confidentiality concerns.