Opinion
# 2019-038-602 Claim No. 126919 Motion No. M-94495
10-29-2019
A.S. v. THE STATE OF NEW YORK
CHERUNDOLO LAW FIRM, PLLC By: John C. Cherundolo, Esq. LETITIA JAMES, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General
Synopsis
Claimant's motion to compel defendant to produce a full and unredacted copy of the Office of Special Investigations report regarding the investigation of his sexual assault allegations granted, subject to a so-ordered stipulation of confidentiality.
Case information
| UID: | 2019-038-602 |
| Claimant(s): | A.S. |
| Claimant short name: | A.S. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126919 |
| Motion number(s): | M-94495 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | CHERUNDOLO LAW FIRM, PLLC By: John C. Cherundolo, Esq. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 29, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim alleging, inter alia, that claimant was sexually assaulted by a correction officer at Adirondack Correctional Facility (CF) on August 3, 2015. Claimant makes this motion seeking an order compelling defendant to provide claimant's counsel with an unredacted copy of the Office of Special Investigations (OSI) report concerning the investigation of claimant's sexual assault allegations. Defendant opposes the motion on the ground that certain information contained in the OSI report is subject to the public interest privilege.
Claim number 126919 was consolidated with Claim number 127867 by decision and order of this Court (see A.S. v State of New York, UID No. 2017-038-546 [Ct Cl, DeBow, J., June 29, 2017]).
The claim alleges that on August 3, 2015, Correction Officer (CO) Piserchia penetrated claimant's rectum with a foreign object several times during a pat frisk in the mess hall at Adirondack CF (see Claim No. 126919, ¶ 2). The claim alleges that claimant was escorted to the infirmary and locked in a bathroom and that after an hour, he was let out of the bathroom and underwent a medical examination (see id.). The claim alleges that claimant made a report pursuant to the Prison Rape Elimination Act (PREA) but that OSI failed to retrieve evidence of the alleged assault, including a pair of bloody underwear, during the course of its investigation (see id.). The claim alleges that the assault was part of a campaign of harassment waged against claimant by correction officers at Adirondack CF and that after claimant filed his PREA report with respect to the alleged August 3, 2015 assault, correction officers retaliated against him by filing falsified Tier III disciplinary tickets against him and illegally subjecting him to solitary confinement and/or keeplock (see id.).
Claimant now moves to compel defendant to disclose the full, unredacted OSI report on the ground that OSI's findings with respect to claimant's PREA complaint are relevant to this claim and there is no other way for claimant to obtain the information contained in the report (see Cherundolo Affidavit, ¶¶ 5-8). Defendant has provided to the Court, for in camera review, an unredacted copy of the OSI report and a copy of the report with portions redacted, which defendant argues may be subject to the public interest privilege. Defendant does not argue that each redacted statement qualifies as confidential, but states that they have been redacted because the parties have not entered into a stipulation of confidentiality (see King Correspondence, dated September 25, 2019, unnumbered p. 1). Defendant states that it "is not willing to provide these statements absent a Court Order, given the self-evident potential for security concerns" (id. at unnumbered p. 2). Defendant requests that if the Court orders that the unredacted OSI report be turned over to claimant, the order be made contingent upon the parties executing a stipulation of confidentiality (see id.). In response, claimant's counsel argues that the redacted portions of the OSI report "include the names of very important, if not critical witnesses, and other information that the Claimant and his attorneys will have to read, and understand, and perhaps depose, prior to the time of trial" (Cherundolo Correspondence, dated September 27, 2019, at unnumbered p. 1). Claimant further argues that it will be difficult to prosecute this claim and engage in discovery without access to the full OSI report (see id.).
To that end, the parties have provided the Court with an executed proposed stipulation of confidentiality to be so-ordered by the Court in the event claimant's motion to compel production of the complete, unredacted OSI report is granted (see King Correspondence, dated October 1, 2019, with Stipulation of Confidentiality). --------
In pre-trial discovery in a civil action, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]). However, "[i]t has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure" (Lowrance v State of New York, 185 AD2d 268, 268 [2d Dept 1992]). The public interest privilege "permits appropriate parties to protect information from ordinary disclosure, as an exception to liberal discovery rubrics" and it "envelops 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" (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8 [1999] [internal quotation marks omitted]). "The justification for the privilege is that the public interest might otherwise be harmed if extremely sensitive material were to lose this special shield of confidentiality" (id.). The public interest privilege "furthers the State's interest in protecting its investigatory processes into misconduct of public employees by maintaining the integrity of its internal investigations and protecting the confidentiality of its sources of information" (Ohnmacht v State of New York, 23 Misc 3d 1134[A], 2009 NY Slip Op 51100[U], *1 [Ct Cl 2009]), and it "requires that the governmental agency [seeking to invoke the privilege] come forward and show that the public interest would indeed be jeopardized by a disclosure of the information" (Cirale v 80 Pine St. Corp., 35 NY2d 113, 118-119 [1974]).
Because the public interest privilege is a qualified one, "a judicial determination must be made on the specific facts of each case to determine if sufficient potential harm to the public interest exists to render the privilege operable" (Matter of Labarbera v Ulster County Socy. for Prevention of Cruelty to Animals, 277 AD2d 672, 673 [3d Dept 2000]).
"In evaluating the applicability of the privilege, the Court must conduct a fact-specific inquiry and balance whether 'the State's interest in maintaining the integrity of the 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' "
(Turner v State of New York, 18 Misc 3d 1112[A], 2007 NY Slip Op 52501[U], *2 [Ct Cl 2007], quoting Lowrance, 185 AD2d at 269).
After carefully reviewing the redacted and unredacted OSI report provided by defendant, the Court concludes that the unredacted OSI report should be disclosed to claimant. As noted above, defendant seeks to withhold certain portions of the OSI report from claimant on the ground that disclosure of that information presents potential security concerns. The Court acknowledges that "[t]he risk to security and safety in the prison setting is a very valid concern and can appropriately restrict disclosure" (Robinson v State of New York, 40 Misc 3d 1034, 1040 [Ct Cl 2013]). Here, however, defendant makes only the bare assertion that the redacted statements create the "self-evident potential for security concerns" (King Correspondence, unnumbered p. 2) and failed to make an evidentiary showing or to provide any further, specific argument as to how release of that information to claimant could present security concerns, reveal criminal investigative techniques, or jeopardize the confidentiality of sources. Moreover, defendant has conceded that the redacted statements are not necessarily confidential but were redacted solely because claimant had not yet provided defendant with a proposed stipulation of confidentiality. Inasmuch as the parties have now agreed upon and executed a stipulation of confidentiality, that concern is no longer operative. Considering defendant's failure to "elaborate[] as to why releasing this information would result in . . . a [security] risk" (Robinson, 40 Misc 3d at 1040) and the fact that claimant is no longer incarcerated (see Shantelle S. v State of New York, 11 Misc 3d 1088[A], 2006 NY Slip Op 50768[U], *2 [Ct Cl 2006] [security interests of a correctional facility weigh in favor of prohibiting disclosure "where an inmate seeking access is still incarcerated"]), the Court concludes that claimant is entitled to disclosure of the complete and unredacted OSI report (see e.g. Coleman v State of New York, UID No. 2019-038-555 [Ct Cl, DeBow, J., June 20, 2019] [claimant entitled to disclosure where defendant failed to make an evidentiary showing that institutional security would be at risk if the materials were disclosed to claimant]; Apholz v State of New York, UID No. 2018-041-068 [Ct Cl, Milano, J., Oct. 24, 2018] [concluding that claimant's attorney was entitled to statements of inmates contained in OSI report subject to a confidentiality order]), and the Court will so-order the stipulation of confidentiality that was executed by the parties (see footnote 3 above).
Accordingly, it is
ORDERED, that claimant's motion number M-94495 is GRANTED, and defendant is directed to provide claimant's counsel with a complete and unredacted copy of the OSI report.
October 29, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 126919, filed October 26, 2015; 2. Notice of Motion, dated August 19, 2019; 3. Affidavit of John C. Cherundolo, sworn to August 20, 2019; 4. Correspondence of Glenn C. King, dated September 25, 2019, with Exhibits A-C (including redacted and unredacted copies of OSI report) 5. Correspondence of John C. Cherundolo, dated September 27, 2019, with unenumerated attachments; 6. Correspondence of Glenn C King, dated October 1, 2019, with executed Stipulation of Confidentiality; 7. Decision and Order in A.S. v State of New York, UID No. 2017-038-546 (Ct Cl, DeBow, J., June 29, 2017).