Opinion
June 11, 1992
Appeal from the Supreme Court, Albany County (Hughes, J.).
The facts underlying this dispute appear in this court's prior decisions in this action ( 178 A.D.2d 875; 168 A.D.2d 809) and a related claim brought in the Court of Claims (Mahoney v Temporary Commn. of Investigation, 165 A.D.2d 233). Previously, we affirmed Supreme Court's order requiring the non-party Temporary Commission of Investigation of the State of New York (hereinafter the Commission) to submit certain investigative records sought by plaintiffs in a subpoena duces tecum for Supreme Court's in camera inspection ( 168 A.D.2d 809, supra). After reviewing these documents, Supreme Court found the Commission's various claims of privilege meritless and denied the Commission's motion, inter alia, to quash plaintiffs' subpoena and granted plaintiffs' cross motion to compel discovery. On appeal, the Commission argues that all responsive documents not already released are exempt from disclosure by reason of the attorney-client privilege, the attorney work product privilege, the common-law public interest privilege for confidential governmental documents, Civil Rights Law § 73 (8), or some combination thereof.
First, as urged by the Commission, we find that the letters exchanged between it and its attorneys concerning the progress of this and the related Court of Claims litigation (specifically, the Fuera Bush document Nos. 51, 52, 53, 54 and 55) are not subject to disclosure because of the attorney-client privilege (see, Rossi v. Blue Cross Blue Shield, 73 N.Y.2d 588, 593). In passing, we note that plaintiffs apparently consider these documents to be beyond the reach of their discovery demand.
The Commission has not, however, met its burden of establishing its right to the other protective devices it asserts (see, Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377). Inasmuch as the Commission conceded that it conducted its investigations at the behest of the Governor and in response to the suggestion of the First Deputy Commissioner of Environmental Conservation (see, Mahoney v. Temporary Commn. of Investigation, supra, at 236) and submitted no evidence that litigation was contemplated during the course thereof, documents generated by those investigations are not privileged under the attorney work product rule (see, 3A Weinstein-Korn-Miller, N Y Civ Prac ¶ 3101.49).
And, with respect to the contention that certain documents are protected by the common-law public interest privilege which "attaches to 'confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged'" (Cirale v 80 Pine St. Corp., 35 N.Y.2d 113, 117, quoting People v. Keating, 286 App. Div. 150, 153), the Commission has not, either in the November 10, 1989 affirmation of Susan Shepard in support of its motion or in the supplementary January 31, 1991 affirmation of Karen Greve, factually buttressed its claim that the disclosure sought by plaintiffs would jeopardize the public interest; hence, no such privilege attaches (see, Cirale v. 80 Pine St. Corp., supra, at 118-119; Matter of Mooney v Superintendent of N.Y. State Police, 117 A.D.2d 445, 448; Matter of Zuckerman v. New York State Bd. of Parole, 53 A.D.2d 405, 409; cf., City of New York v. BusTop Shelters, 104 Misc.2d 702, 709). Furthermore, plaintiffs submitted an uncontroverted affidavit of the Corporation Counsel of the City of Albany to the effect that, to his knowledge, neither he nor any City official who provided information to the Commission did so under any promise of confidentiality (cf., Jones v. State of New York, 58 A.D.2d 736; Sanderson v. City of Rochester, 80 Misc.2d 961, 962; Fischer v Citizens Comm., 72 Misc.2d 595, 599, affd 42 A.D.2d 692).
Finally, the claim that certain documents are exempt from disclosure by Civil Rights Law § 73 (8) is unpersuasive. That section of the statute plainly sets forth the procedure by which an investigative agency may disseminate certain testimony or other evidence to the public; it does not prohibit the court from ordering disclosure of such material under appropriate circumstances, i.e., where the aforementioned protections do not attach.
Mikoll, J.P., Levine, Mercure and Crew III, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied the motion of the Temporary Commission of Investigation of the State of New York to quash the subpoena duces tecum and for a protective order as to the Fuera Bush document Nos. 51, 52, 53, 54, and 55 and granted plaintiffs' cross motion compelling disclosure of these documents; motion granted and cross motion denied as to said documents; and, as so modified, affirmed.