Opinion
128663
04-22-2020
Kathleen RIVERA, Individually and as Administrator of the Estate of Matthew Rivera and Kate Rivera, Claimants, v. The STATE of New York, Defendant.
Mayerson & Associates, Attorneys for Claimants, By: Gary S. Mayerson, Esq., P.O. Box 15141, Albany, New York Letitia James, New York State Attorney General, Attorney for Defendant, By: Cheryl Rameau, Esq., 28 Liberty Street, New York, NY 10005
Mayerson & Associates, Attorneys for Claimants, By: Gary S. Mayerson, Esq., P.O. Box 15141, Albany, New York
Letitia James, New York State Attorney General, Attorney for Defendant, By: Cheryl Rameau, Esq., 28 Liberty Street, New York, NY 10005
David A. Weinstein, J. Background
Claimants Kathleen and Kate Rivera, individually and as guardians acting on behalf of Matthew Rivera, their son and brother respectively, commenced this action by claim filed on October 14, 2016. The claim alleged that on October 24, 2015, Rivera was abused by staff at the Brooklyn Developmental Center ("BDC"), where he was a resident and receiving services for his developmental disabilities. The claim identified one of the alleged assailants by name as then-BDC employee Eddie Malloy (Claim ¶¶ 22-26). Rivera passed away during the pendency of this litigation, and his estate was substituted for him as a party.
Malloy subsequently retired.
After various discovery disputes arose between the parties, and following submission of letter briefs and documents for the Court's in camera review, on October 31, 2019, I issued a Decision and Order ("D & O") addressing such disputes. In the D & O, I deferred a ruling on certain documents that claimants had sought from the Justice Center for the Protection of People with Special Needs (the "Justice Center"), some of which they had received only in redacted form and others which had not been produced at all. The documents at issue arose out of the Justice Center's investigation into the abuse allegations, which ultimately sustained some of the charges (D & O at 12-17). I directed the Justice Center to provide such records as were in its possession for in camera review, and to submit an affidavit setting forth its views as to what extent they should be withheld from production under its governing statutes.
The Office of the Attorney General took the position that it was not responsible for producing documents from the Justice Center in response to claimants' discovery demands, and that such should be secured through third party subpoena — a contention I rejected in my opinion (see D & O at 12-17). For that reason, while the State's production included Justice Center documents in the possession of the Office of Mental Health, it did not cover the universe of materials within the Justice Center's possession.
The Justice Center responded to the D & O by providing various records (including numerous recordings) to the Court for its review. Those documents, as discussed below, contain extensive information on three consumers (i.e., patients at the BDC) in addition to Rivera: one who reported allegations of staff abuse against Rivera, whom I shall refer to below as K, one who was interviewed as a potential witness, who I shall refer to as J, and one who was accused by Malloy and others of having struck Rivera, whom I shall refer to below as MF, the initials used in my prior D & O. The records also contain references to a staff member who reported K's allegations to the police, whom I shall refer to as S.
The documents and recordings submitted consisted of the following:
• Recorded interviews with eight staff members (including Malloy and S) and with MF, K, and J.
• An Article 33 "interrogation" of BDC employee Robert Holmes. Such a proceeding is one that takes place as part of the disciplinary process pursuant to Article 33 of the Collective Bargaining Agreement between the Civil Service Employees Association and the State ( see Stolzman v. New York State Dept. of Transp. , 68 A.D.3d 1331, 890 N.Y.S.2d 181 [3d Dept. 2009] ). • A recording of a 911 call by S, reporting allegations of staff abuse made to S by K, and a written report of the call.
• A recording of police radio communication regarding the response to S's 911 call, along with a data sheet, chronology and report relating to the call.
• A recording of a call by a BDC staff member to the Justice Center, reporting a 10/24/15 alleged incident of "self-harm" by Rivera.
• Various BDC medical and behavioral records of Rivera.
• A Use Immunity Agreement between a BDC employee and the Justice Center.
• An OPWDD Incident Report.
• Two "Minor Occurrence Reports" regarding certain of the events at issue, one written in reference to Rivera, and the other written in reference to MF, although describing the same incident.
• A "Forbearance" Report from the Justice Center to Office of People with Developmental Disabilities ("OPWDD") Regional Director Sheryl Minter-Brooks, requesting forbearance on any OPWDD investigative activities regarding the incident at issue until the Justice Center completed its investigation.
• A "Preliminary Findings" Letter from the Justice Center to Minter-Brooks, indicating the Justice Center investigation was still in progress.
• Various behavioral and psychological assessments of K and MF.
• A Justice Center request for medical records.
• Photographs of Rivera after the incident in question.
In addition to providing these documents for in camera review, the Justice Center produced an affirmation from its Deputy General Counsel (Affirmation of Eugene N. Sarfoh, Esq., dated January 29, 2020 ["Sarfoh Aff"]). In that submission, the agency did not object generally to producing its investigative materials, but noted that it is its practice to redact the names and identifying information of all service recipients not pertinent to the investigation, as well as witnesses and reporters of the abuse or neglect in question, and personal information such as home addresses and phone numbers, criminal record information, and social security numbers ( id. ¶ 5). It makes various arguments in support of such limitations, discussed further below.
The Justice Center provided the court with two "SanDisk" thumb drives for review, one of which contained digital documents and the other audio files.
Discussion
The confidentiality of documents compiled during a Justice Center investigation is governed by Social Services Law ("SSL") § 496. That statute provides for different levels of protection for documents arising in the context of (1) reports that have not been substantiated; (2) reports that have been substantiated, and (3) information released at the direction of the Justice Center's Executive Director. Since the Justice Center's investigation in this case found four of the five charges to be substantiated, it falls under paragraph (2). That paragraph provides that such reports and all information obtained in the investigation shall not be disclosed except in certain specifically delineated circumstances, including to "a court, upon a finding that the information in the record is relevant to the determination of an issue before the court" ( SSL § 496[2][f] ).
I find that section 496(2)(f) grants this Court the authority to direct production of relevant documents from the Justice Center's investigation, subject to an appropriate confidentiality order limiting such disclosure to use in the litigation. I cannot read this provision as restricted to disclosure to the Court itself, without allowing the parties (or their counsel) to use such materials as evidence at trial, and in setting a course for disclosure, as there is no way the Court could otherwise consider these materials. This is consistent, moreover, with the position taken by the agency tasked with overseeing the statute and with the most significant interest in ensuring the confidentiality of its investigative process, which does not object to the parties receiving these materials with certain limited exceptions, and notes that the scope of any disclosure resides within the Court's discretion ( see Sarfoh Aff ¶ 6).
Indeed, since the defendant is privy to these documents, any consideration by the judge of such in relation to the merits of this case, without allowing claimant's counsel access, would be for all intents and purposes an ex parte communication between defendant and the Court.
The term "relevant," when used in the context of discovery, is at least as broad as the CPLR 3101 standard of "material and necessary" ( see Forman v. Henkin , 30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ["A party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is "material and necessary"—i.e., relevant ..."]; see also Allen v. Crowell-Collier Pub. Co. , 21 N.Y.2d 403, 407, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] [finding relevance a "more liberal" standard then "material and necessary," but nevertheless choosing to adopt a "broad interpretation" of the latter terms]). This standard has been read to cover "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" ( Allen , 21 N.Y.2d at 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ).
As an initial matter, the Justice Center objects to any disclosure that would reveal the name of any reporter or witness of suspected abuse, even if relevant to the case. While it notes that there is no carve out barring production of such information in SSL § 496(2), it relies on section 496(4), which provides as follows:
"A person given access to the names or other information identifying the subject of the report or other persons named in the report shall not divulge or make public such identifying information unless he or she is a district attorney or other law enforcement official and the purpose is to initiate court action or the disclosure is necessary in connection with the investigation or prosecution of the subject of the report for a crime alleged to have been committed by the subject against another person named in the report. Nothing in this section shall be construed to permit any release, disclosure or identification of the names or identifying descriptions of persons who have reported suspected abuse or neglect to the vulnerable persons' central register or the state oversight agency, facility or provider agency or other entity where such persons are employed or with which they are associated without such persons' written permission except to persons, officials, and agencies enumerated in paragraphs (f), (g), (l), (m) and (v) of subdivision two of this section ...."
On this basis, and out of a desire to protect the identity of a person who comes forward to disclose wrongdoing, the Justice Center stresses the need to protect the name and identifying information of a reporter of abuse and neglect ( id. ¶ 6). Despite the agency's protestations, I cannot find that such protection is mandatory under the present circumstances, where a charge was found substantiated. To the contrary, section 496(4) expressly provides for an exception for disclosure "to persons, officials, and agencies enumerated in [ § 496(2)(f) ]," which covers disclosure to a Court.
Nonetheless, as with any discovery demand, the Court has the power under CPLR 3103 to issue a protective order "denying, limiting, conditioning or regulating the use of any disclosure device ... designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." This provision allows a Court to exempt from disclosure materials that "contain sensitive or embarrassing materials of marginal relevance" ( see Forman , 30 N.Y.3d at 665, 70 N.Y.S.3d 157, 93 N.E.3d 882 ). Thus, it is within the discretion I am afforded in reviewing information contained in a Justice Center investigative file for potential disclosure under section 496(2)(f) to issue such protective order as may be appropriate, including one directing that the identity of individuals who may have initially reported the alleged abuse or neglect not be disclosed, particularly where such information is of marginal relevance or allows for potential abuse. Moreover, the statute clearly reflects the legislative determination that significant interests weigh in favor of protecting the confidentiality afforded persons who report abuse and neglect, as such disclosure is severely restricted by the statute. Further, the confidentiality of the health and other private information regarding service recipients other than Matthew Rivera retains such protections as provided for under other statutes, regardless of whether such is specifically referenced by section 496.
With these principles in mind, I proceed to address the materials presented for in camera review by the Justice Center.
My review reveals that the great majority of the documents and recordings submitted for in camera review are relevant to the issues before me and, therefore, should be disclosed to claimant's counsel in accordance with the statutory exception to confidentiality provided for under SSL § 496(2)(f). That is not the case, however, with regard to certain particular records.
First, all health and behavioral records for MF and K have no relevance to this case, and in any case are shielded against discovery by HIPAA and various provisions of New York law ( see Lee v. New York City Transit Auth. , 257 A.D.2d 611, 611, 685 N.Y.S.2d 84 [2d Dept. 1999] ; CPLR 4504 ; Mental Hygiene Law § 33.13[c] ). Moreover, as stated in my D & O of October 31, there is "no allegation in the present pleadings attributing Rivera's injuries to an assault by [MF]," and thus his records have no bearing on this case ( see D & O at 23). In addition, with some very limited potential exceptions, none of the materials produced in camera concern prior assaults or similar violent behavior, as necessary for them to be discoverable even in a case where the State's failure to protect a resident of a public facility from assault is at issue ( see id. [citing J.Z. v. South Oaks Hosp. , 67 A.D.3d 645, 646, 886 N.Y.S.2d 915 [2d Dept. 2009] ). And since K's testimony is relevant only in regard to the events involving Rivera, an evaluation of his own prior behavior and health is not relevant to this, unless it contained a history of fraud or dishonesty that might provide fodder for cross-examination, which is not present in the records at issue. Therefore, defendant shall withhold from its production the records labeled: (1) [K] CFA.pdf; (2) [K] Psychological Assessment.pdf; (3) MF behavioral records on page 53 of ASP File.pdf; (4) details on K's discharge and contact information on page 69 of ASP File.pdf; and (5) any other behavioral and psychological assessments of K and MF contained within the documents at issue.
For example, the document named "[MF] Minor Report" contains a description of the incident, which is relevant to the matter at hand. While the form provides for the entry of certain confidential medical information (such as medications), the information actually set forth on the document does not appear to touch upon such matters. Therefore, this document may be produced in its entirety.
The statements given by these individuals (K, J and MF) describing the incident in question, however, are highly relevant to the matter at hand, and therefore must be produced. To protect their identity from public disclosure, however, as permitted by CPLR 3103, the production of all documents that reference these individuals shall be subject to an "attorneys' eyes only" confidentiality order, for use solely in connection with this litigation, and shall not otherwise be disclosed, including to the parties. While I read the Justice Center's submission as expressing the position that the identity of these individuals should be withheld in their entirety, I believe a confidentiality order restricting disclosure to counsel to be a more appropriate way to approach such evidence for several reasons. First, these statements are extremely relevant to the matter at hand, and I do not see how they could be used in the context of the litigation without allowing counsel access to the witnesses' identity. Second, the kind of redaction that withholding their identity would require would be extremely burdensome. In addition to their statements, these individuals are referred to in passing during other interviews, and withholding their identities would require that much of the audio record would have to be transcribed and redacted, resulting in significant delay, particularly given the difficulty of carrying out such tasks under the limitation imposed by the present Covid-19 crisis. Even if this were done, those individuals' names would inevitably come up in deposition and trial testimony, and the possibility of hermetically sealing this information off from counsel seems remote. Further, limiting disclosure to counsel addresses the legitimate concerns about protecting the privacy of these individuals and preventing retaliation against them. This is not a case where there is a significant potential for information to inadvertently leak and invite possible retaliation, since Rivera himself is no longer alive, and Malloy is retired. Nor, on the other hand, is this a case where disclosure of the identity to claimants themselves is necessary to allow for use of the information, given that the party with direct involvement and knowledge is deceased. Thus, restricting disclosure to counsel provides the optimum balance of the individuals' privacy and the parties' litigation interests ( compare BEC Capital, LLC v. Bistrovic , 177 A.D.3d 438, 112 N.Y.S.3d 127 [1st Dept. 2019] [attorneys' eyes only protective order appropriate for protection of trade secrets; defendants' claim that they have expertise to help review information insufficient to allow fuller disclosure] with Hill v. City of New York , 170 A.D.3d 511, 96 N.Y.S.3d 47 [1st Dept. 2019] [attorneys' eyes only order insufficiently protective to allow disclosure of name of confidential informant, where "[i]n all likelihood, the information at issue would aid plaintiff's case only if the attorney were to discuss it with plaintiff or others, which could endanger the informant's safety"]).
K and other staff members also reference the names of other consumers present during the events at issue. The identity of these individuals is subject to the attorneys' eyes only order as well.
Various other documents disclose no factual information relevant to the matters at issue, but instead reflect procedural steps taken during the investigation. Since these documents do not meet the threshold showing for relevance required for disclosure under section 464(2)(f), I will not direct their production. These are: (1) 501042578/551042167 Justice Center Investigator outline apparently used during interviews in this matter (pages 123-128 in ASP file.pdf); (2) an email concerning the status of document production during the investigation, including contact information for various individuals (page 1 in ASP file.pdf); (3) the "Forbearance Letter" sent to Ms. Minter-Brooks (Forbearance Letter Matthew Rivera.doc); (4) a request for medical records made by the Justice Center during its investigation (Kingsbrook Medical Records Request.docx); and (4) the "Preliminary Findings" letter from the Justice Center, which does not actually set forth any findings (ICF Letter of Preliminary Findings Matthew Rivera.docx). While it is not clear that any particular harm would result from the production of such materials, there is no relevant factual information in them, or anything likely to lead to the disclosure of such information. Thus, they are not discoverable. Further, there are the documents involving S, including those related to S's 911 call and Justice Center interview. Since those calls reflect at most only S's hearsay reports of the account given by K (in the 911MSG.wav recording, and the Significant Incident Phone Call recording), or the process by which the report was made or the police responded (in the case of the OPWDD Incident Report, the radio call (RADIO MSG 01.wav), written report and data sheet, the Event Chronology [201590297.pdf], and the document labeled summary.pdf), I find that the marginal value of the evidence is outweighed by the need to protect the identity of an individual reporting wrongdoing reflected in section 464. S's evaluation of Rivera's injuries, while meeting the relevance standard for discovery, reflects nothing more than S's subjective opinion of such. Given that far more precise information regarding those injuries is available in any case through medical records and photographs, and in light of the serious concerns expressed by the Justice Center in regard to disclosing the identity of reporters of misconduct, in the exercise of my discretion, I decline to direct the production of the 911 call information or the S interview. S's statement shall also be redacted from Rivera Final VPCR, which contains a summary of the interview with S.
I do not find that these concerns relate to the recorded phone call made to the Justice Center hotline to report "self-harm," by Rivera. Since that call did not constitute a report of misconduct, it does not raise the confidentiality issues discussed above in regard to the report by K.
The redaction of the summary of one employee's statement while others are produced may allow the identification of S by process of elimination. For that reason, this document shall also be deemed attorneys' eyes only in its entirety.
With respect to the remaining documents that shall be produced, care shall be taken to redact the confidential personal, health and behavior information of K and MF, as well as any social security numbers, dates of birth, and home addresses and phone numbers.
For example, Mr. Holmes provides his personal cell phone number at the very end of his recorded interview. If it is possible to cut off the recording just prior to the disclosure of such information, that would remove the need for redaction altogether.
In addition, the Sarfoh Affidavit makes reference to information in the investigative record concerning a "service recipient victim" of a sexual offense (Sarfoh Aff ¶ 4). I have not found such during the in camera review, although any such information — presuming it does not concern Mr. Rivera — clearly must be redacted, and defendant is directed to do so. To the extent defendant believes the withholding of relevant information is necessary in order to prevent such disclosure, it shall indicate to the Court by letter, enclosing any relevant document for in camera review.
Finally, to the extent any of these redactions are required to the recorded material, it must be transcribed or other steps taken to ensure that the information is withheld.
Redaction is not necessary if there is a more efficient alternative. For example, Mr. Holmes provides his personal cell phone number at the very end of his recorded interview. Such information can be excluded by ending the recording just prior to the disclosure of that information.
Accordingly, it is hereby
ORDERED within thirty days of the electronic filing of this Decision & Order, defendant shall arrange for the production of the documents and recordings, with redactions, as directed above; and it is further ORDERED that a conference call be conducted on April 29, 2020 at 10:00 a.m. to discuss the modalities of and any issues with the timing of the disclosure; and it is further
ORDERED that all Justice Center record material produced in accordance with this order shall be kept confidential and used solely in this litigation, and all documents referencing J, K, or MF shall be restricted to attorneys' eyes only, in addition to those specifically subject to an attorneys' eyes only order as directed above, and shall not be otherwise disclosed.