New York State Court of Claims

New York State Court of Claims

MCDONALD v. THE STATE OF NEW YORK, #2009-041-030, Claim No. 106515, Motion No. M-76454


Synopsis


Claimant’s motion to compel production of the Department of Correctional Services (DOCS) Inspector General file relating to the incident underlying the claim, DOCS’ use of force directive, correctional officers’ personnel records and employee accident and injury reports regarding the incident, is granted in part and denied in part, after in camera review.


Case Information

UID:
2009-041-030
Claimant(s):
MARCELLO MCDONALD
Claimant short name:
MCDONALD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106515
Motion number(s):
M-76454
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
STOLL, GLICKMAN & BELLINA, LLPBy: Cynthia Conti-Cook, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Stephen J. Maher, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for an order compelling production of the Department of Correctional Services (DOCS) Inspector General file relating to the incident underlying the claim; DOCS’ correction officer use of force directive; the involved correction officers’ personnel records; and the involved correction officers’ employee accident and injury reports and medical records regarding the incident. The defendant refused to provide the Inspector General file relating to the incident, asserting that it is “privileged and confidential.” Claimant’s request for DOCS’ correction officer use of force directive was denied as a “security risk.” The demand for production of the involved correction officers’ personnel records was denied as “privileged and confidential pursuant to NY Civil Rights Law Section 50-a.” Defendant did provide to claimant copies of several documents regarding the incident, with the personal information and medical treatment of the correction officers redacted.

The claim states that while claimant was engaged in a fight with a fellow inmate, two correction officers intervened and during the course of this intervention one of the correction officers struck claimant in the back of the head with a baton. The facility superintendent stated, in a use of force report provided to claimant, that the force used by the correction officer was inappropriate and an investigation by the Office of the Inspector General was requested.

The claim alleges that the defendant should have foreseen and prevented the attack on claimant by his fellow inmate and that claimant was the victim of an assault by one of the involved correction officers. The claim does not allege that the defendant was negligent in hiring, retaining or supervising the officers involved nor does it allege that defendant knew, or had reason to know, of any violent propensities of either officer prior to, or during, employment with defendant.

The Court will first consider the request for disclosure of the personnel records of the two involved correction officers.

Defendant argues that such disclosure would violate the protections afforded by Civil Rights Law § 50-a, which provides, at relevant part, as follows:
“1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police 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.”
“The legislative purpose [behind the statute] was to prevent disclosure of officers’ personnel records except when a legitimate need for them has been demonstrated sufficiently to obtain a court order, generally upon a showing that they are actually relevant to an issue in a pending proceeding” (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155 [1999]). The party seeking the protected records has the initial burden of making a good faith showing of a “factual predicate” justifying the intrusion into the personnel records (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], quoting People v Gissendanner, 48 NY2d 543, 550 [1979]).

In initially reviewing the motion papers, the Court found that claimant had made a good faith initial showing of entitlement to the requested disclosure, triggering the “opportunity to be heard” provision of Civil Rights Law § 50-a (2). The two correction officers were thereafter served with copies of the motion papers and provided an opportunity to be heard with respect to the requested disclosure.

After careful review and consideration, the Court finds that there is no information contained in the correction officers’ personnel files which is relevant and material to the allegations contained in the claim. That portion of the motion demanding disclosure of the personnel files is denied.

The Court will next consider disclosure of the Inspector General Report. Defendant objects to its disclosure on the basis of the public interest privilege. The privilege is described in Lowrance v State of New York (185 AD2d 268, 269 [2d Dept 1992]), which involved an inmate’s demand for disclosure of an Investigator General file compiled during the investigation of the inmate’s grievance against a correction officer:
“It has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure (see, Cirale v 80 Pine St. Corp., 35 NY2d 113; One Beekman Place v City of New York, 169 AD2d 492, 493). The Court of Appeals has observed that ‘[t]he hallmark of this privilege is that it is applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality’ (Cirale v 80 Pine St. Corp., supra, at 117-118). Under the circumstances presented, 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).”
As stated above in Lowrance, the public interest privilege asserted by defendant (“maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context”) must be weighed against the claimant’s right to disclosure of information relevant and material to the claim (see CPLR 3101; Marten v Eden Park Health Services Inc., 250 AD2d 44, 46 [3d Dept 1998]).

Having both considered the relevance and materiality to the claim of the information contained in the Inspector General Report and balanced claimant’s right to disclosure against the public interest in maintaining the file’s confidentiality, the Court directs that the below-numbered documents be disclosed after redaction of all personal identifying information. Medical information regarding anyone other than claimant shall be redacted. The information and documents disclosed shall be used solely for the purpose of this claim to the extent necessary for the litigation of the claim, and shall be disclosed only to counsel, personnel employed to assist counsel, experts, court personnel, court reporters and/or monitors:
1. Investigative Report dated July 22, 2002;
2. Unusual Incident Report;
3. Use of Force Reports;
4. Great Meadow Correctional Facility Interdepartmental Communication, dated March 19, 2002, from Correction Officer Ginter to Correction Officer Parrish;
5. Photographs of claimant;
6. Report of Interview of claimant;
7. Report of Interview of Inmate Inabinet;
8. Report of Interview of Correction Officer Williams;
9. Report of Interview of Correction Officer Neiertz.


Claimant further seeks DOCS’ correction officer use of force directive. The Court has reviewed the directive and weighed the claimant’s right to disclosure against the defendant’s interest in maintaining the security and safety of the facility and its employees. The Court finds that sections I, II and III (A) through (F) of Page 1 of the directive, are relevant to the allegations of the claim and shall be disclosed. The information disclosed shall be used solely for the purpose of this claim to the extent necessary for the litigation of the claim, and shall be disclosed only to counsel, personnel employed to assist counsel, experts, court personnel, court reporters and/or monitors.

The motion is denied as moot with respect to employee accident reports since claimant has been provided copies of contemporaneous reports of the incident. The request for medical or injury information regarding the correction officers is denied. The officers’ medical records and treatment, if any, is privileged and neither officer has placed his medical condition in issue. It is further noted that claimant’s attorney, in her reply memorandum of law, states that the officers’ injury information relating to the incident is “already generally known to claimant through the Unusual Incident Report.”

The materials reviewed in camera by the Court are returned to defendant’s attorney, under separate cover, for disclosure as directed in this Decision and Order.


July 21, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Notice of Motion, filed March 23, 2009;
  2. Affirmation of Cynthia Conti-Cook, dated March 19, 2009, with annexed exhibits;
  3. Affirmation in Opposition of Stephen J. Maher, dated April 3, 2009, and submitted confidential records;
  4. Reply Affirmation of Cynthia Conti-Cook, dated April 20, 2009, with annexed exhibits;
  5. Letter of Mark A. Neiertz, dated June 18, 2009.