Opinion
# 2018-041-068 Claim No. 130208 Motion No. M-92017
10-24-2018
WILLIAM APHOLZ v. THE STATE OF NEW YORK
SIVIN & MILLER, LLP By: Edward Sivin, Esq. HON. BARBARA D. UNDERWOOD New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Claimant's motion to compel production of Department of Correctional and Community Services records and documents in claim alleging assault/excessive force by correction officer (CO) on inmate, including records of Office of Special Investigation (OSI) regarding the claimed, and similar, incident[s] involving the same CO, and for disclosure of the CO's personnel records, is granted, with redactions, after in camera review.
Case information
| UID: | 2018-041-068 |
| Claimant(s): | WILLIAM APHOLZ |
| Claimant short name: | APHOLZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130208 |
| Motion number(s): | M-92017 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SIVIN & MILLER, LLP By: Edward Sivin, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 24, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim seeks recovery of damages for the alleged assault/use of excessive force upon the inmate-claimant at Bare Hill Correctional Facility by correction officer Dale Dubrey (Dubrey). The claim further alleges that defendant "was negligent and reckless in its retention of Sgt. Dubray [sic], whom it knew to be unfit and unqualified to function as a corrections officer."
In response to claimant's First Set of Interrogatories and claimant's Notice for Discovery and Inspection, defendant served its Response to Claimant's First Set of Interrogatories and its Response to Claimant's Notice for Discovery & Inspection.
In its responses, defendant made objections to certain of claimant's demands as overbroad and irrelevant and further objected that certain of the demanded documents were protected by the public interest privilege and the privacy provisions of Public Officers Law §§ 87 (2) and 89 (2) and Civil Rights Law § 50-a.
Claimant now moves to require defendant to fully comply with claimant's First Set of Interrogatories and claimant's Notice for Discovery & Inspection. The Court notes that Dubrey was served with the claimant's Notice of Motion and supporting papers but has neither objected, nor responded in any manner, to the relief requested.
Defendant has responded to the application by serving supplemental responses to the interrogatories and to the discovery requests and by providing the remaining disputed records to the Court for in camera review.
In particular, defendant provided to the Court, for in camera review, two sets of the disputed documents, one set with proposed redactions highlighted in yellow and a second set with redactions applied in black marker. The defendant's explanations for its proposed redactions are set forth in its letters of July 25, 2018 and August 8, 2018, copies of which were provided to claimant and which are included in the papers considered in determining the motion. The redactions involve privacy concerns of Dubrey, his family and other inmates and correction officers as well as redactions based upon common law and statutory privileges against disclosure and, finally, relevancy objections.
The Court has received and reviewed both redacted and unredacted copies of the relevant records of the Department of Corrections and Community Supervision (DOCCS) Office of Special Investigation (OSI) relating to the incident alleged in the claim and DOCCS records relating to prior investigations involving Dubrey. The Court has also received and reviewed the DOCCS personnel file of Dubrey and DOCCS Bureau of Labor Relations records involving Dubrey.
Defendant argues that at least some of the DOCCS OSI records relating to the incident alleged in the claim, and the DOCCS OSI records relating to prior investigations involving Dubrey, are protected from disclosure by the public interest privilege.
The public interest 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 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]). Significantly, the "calibration [of the public interest privilege] can also take into account the extent to which pertinent information is available to plaintiffs from other public sources" (In re World Trade Center Bombing Litigation, 93 NY2d 1, 9 [1999]).
The Court is also well aware that the Cirale public interest privilege analysis requires that the party opposing disclosure offer "specific support for the claim of privilege . . . and show that the public interest would indeed be jeopardized by a disclosure of the information" (Cirale, 35 NY3d at 118-119). Defendant asserts that disclosure of certain portions of the investigative records, including the identities of inmate witnesses, would negatively impact "the integrity of its internal investigations" and its need to "[protect] the confidentiality of sources of information."
With those principles in mind, and after careful review, the Court finds that the records of the DOCCS OSI investigation relating to the incident alleged in the claim and also relating to prior investigations involving Dubrey, should be disclosed to claimant, as redacted, with two exceptions:
First, the OSI "Final Investigative Report, Summary of Investigative Findings," is to be provided with the names of the correction officers (other than Dubrey) redacted, and the findings of discipline, if any, against said other correction officers, except Dubrey, redacted.
Second, the defendant is directed to provide the statements of the inmates, set forth in pp. 84-120 of the OSI records (Exhibit A of the in camera documents) without redaction of the inmates names and DIN numbers. The Court finds that claimant's attorney is entitled to the identities of these inmate witnesses, subject to the following confidentiality order of the Court.
Claimant's attorney is instructed and ordered that the names and DIN numbers of the inmate witnesses to the incident particularly, and all of the documents disclosed, generally, are to 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.
Next, defendant argues that disclosure of the DOCCS personnel file of Dubrey would violate the protections afforded by Civil Rights Law § 50-a, which provides, at relevant part:
"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."
As set forth above, claimant has provided proof of service of the motion papers on Dubrey, as required by Civil Rights Law § 50-a, and Dubrey has not appeared in opposition to the motion.
"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]).
The Court finds that Dubrey's personnel records, as redacted by defendant based upon the privacy and relevancy grounds set forth in defendant's letter of August 8, 2018 enclosing the records, are relevant to the salient issues involved in the claim.
The Court makes the same finding with respect to the records of the DOCCS Bureau of Labor Relations.
Claimant's attorney is instructed and ordered that the documents disclosed, as redacted, are to 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.
With respect to claimant's demand for records of grievances filed by non-party inmates against Dubrey alleging use of force, defendant asserts that the demand is not limited by date, that release would implicate privacy rights of non-party inmates and that facility grievance files are not "organized by staff name" and would therefore require DOCCS to exercise "herculean, and unreasonable, effort" to locate applicable records.
The Court finds that in view of the voluminous relevant records being disclosed to claimant involving the subject incident and, in particular, disclosure of records of prior allegations of excessive force against Dubrey, the demand for grievance records is denied, with leave to renew upon a further showing of need for such disclosure.
Defendant is directed to produce claimant's "own OMH records."
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.
October 24, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed March 26, 2018; 2. Affirmation of Edward Sivin, dated March 26, 2018, and attached exhibits; 3. Affirmation of Douglas R. Kemp, dated April 23, 2018, and attached exhibits; 4. Reply Affirmation of Edward Sivin, dated May 4, 2018; 5. Court's letter of June 21, 2018; 6. Letter of Edward Sivin, dated June 25, 2018, enclosing affirmation of service on Dale Dubrey; 7. Letter of Douglas R. Kemp, dated July 25, 2018; 8. Letter of Douglas R. Kemp, dated August 8, 2018.