Opinion
# 2015-041-075 Claim No. 123678 Motion No. M-86837
12-07-2015
MARK ALAN LAPIERRE v. THE STATE OF NEW YORK
MARK ALAN LAPIERRE Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General
Synopsis
Inmate/claimant's motion to compel production of the Department of Correction and Community Services (DOCCS) Inspector General case file relating to the incident underlying the excessive force/assault claim is, after in camera review, granted in part and denied in part where the claimant's right to disclosure of information relevant and material to the claim does not outweigh the public interest privilege against disclosure and the relevant evidence is available to claimant from other sources.
Case information
| UID: | 2015-041-075 |
| Claimant(s): | MARK ALAN LAPIERRE |
| Claimant short name: | LAPIERRE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123678 |
| Motion number(s): | M-86837 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | MARK ALAN LAPIERRE Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 7, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for an order compelling production of the Department of Corrections and Community Supervision (DOCCS) Inspector General Investigative Report and File (IG File) related to the incident underlying the claim. The defendant opposes claimant's motion and has refused to provide the IG File, asserting in its response to claimant's discovery demand, inter alia, that the IG File is "immune from discovery by virtue of the public interest privilege."
The claim alleges that claimant was assaulted by defendant's correction officers at Clinton Correctional Facility (Clinton) in December of 2012.
Pursuant to this Court's letter order, dated September 14, 2015, the defendant has produced for in camera inspection the IG File relating to the incident underlying the claim. Defendant indicates that it has already provided to the claimant the following items from the IG File: Unusual Incident Report; claimant's Ambulatory Health Record and relevant Clinton Log Book pages.
Defendant objects to further disclosure of the IG file on the basis of 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 materials in the IG File reviewed by the Court, not including the materials already provided to claimant as described above, include the following: IG Investigative Report dated August 20, 2013; Index Sheet; IAD Summary; claimant's letter to DOCCS Commissioner dated January 1, 2013; claimant's letter to DOCCS IG dated March 21, 2013; Joyce Hinds's letter to DOCCS IG dated March 10, 2013; Joyce Hinds's letter to NYS Police Bureau of Criminal Investigation dated March 10, 2013; claimant's letter to DOCCS IG dated June 9, 2013; claimant's Freedom of Information Law Request to DOCCS IG dated June 8, 2013; DOCCS Initial Security Interview of claimant dated December 17, 2012; DOCCS IG Report of Interview of claimant dated March 7, 2013; DOCCS Report of Interview of three (3) DOCCS inmates and four (4) DOCCS correction officers.
Defendant is directed to provide claimant with copies of the following items from the IG File: Claimant's letter to DOCCS Commissioner dated January 1, 2013; claimant's letter to DOCCS IG dated March 21, 2013; Joyce Hinds's letter to DOCCS IG dated March 10, 2013; Joyce Hinds's letter to NYS Police Bureau of Criminal Investigation dated March 10, 2013; claimant's letter to DOCCS IG dated June 9, 2013; claimant's Freedom of Information Law Request to DOCCS IG dated June 8, 2013; and DOCCS Initial Security Interview of claimant dated December 17, 2012.
The Court finds that the claimant's right to disclosure of information relevant and material to the claim can be adequately accommodated without further disclosure of the confidential IG File. The Court has carefully considered the relevance and materiality of the remaining confidential information contained in the IG File to the salient issues of the claim and concludes that any relevant and material information in the IG file can be obtained by claimant through discovery demands directed to defendant and through depositions of witnesses identified by defendant through such discovery demands.
Importantly, the Court's review of the IG File reveals no relevant and material evidence supportive of claimant's allegations sufficient to warrant breaching the confidentiality protections offered to the correction officers and inmates in the course of the IG investigation.
The materials reviewed in camera by the Court are returned to defendant's attorney, under separate cover, for treatment as directed in this Decision and Order.
December 7, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims Papers considered: 1. Claimant's Notice to Compel, filed May 29, 2015; 2. Affidavit of Mark A. LaPierre, sworn to May 26, 2015, and annexed exhibits; 3. Affirmation in Opposition of Michael T. Krenrich, dated July 14, 2015, and annexed exhibits; 4. Claimant's Reply, filed July 20, 2015; 5. Court's letter dated September 14, 2015; 6. Defendant's Inspector General "Investigative Report and file documentation."