Opinion
# 2013-018-440 Claim No. 117140 Motion No. M-82851
10-22-2013
AL ROBINSON v. STATE OF NEW YORK
Claimant's attorney: SIVIN & MILLER, LLP By: Edward Sivin, Esquire Defendant's attorney: ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Decision and Order what documents shall be turned over to Claimant after in camera review based upon Motion No. M-82851.
Case information
+---------------------------------------------------------------------------+ ¦UID: ¦2013-018-440 ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant short name: ¦ROBINSON ¦ +---------------------------------+-----------------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Defendant(s): ¦STATE OF NEW YORK ¦ +---------------------------------+-----------------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Claim number(s): ¦117140 ¦ +---------------------------------+-----------------------------------------¦ ¦Motion number(s): ¦M-82851 ¦ +---------------------------------+-----------------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Judge: ¦DIANE L. FITZPATRICK ¦ +---------------------------------+-----------------------------------------¦ ¦ ¦SIVIN & MILLER, LLP ¦ ¦Claimant's attorney: ¦ ¦ ¦ ¦By: Edward Sivin, Esquire ¦ +---------------------------------+-----------------------------------------¦ ¦ ¦ERIC T. SCHNEIDERMAN ¦ ¦ ¦ ¦ ¦ ¦Attorney General of the State of New York¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦By: Bonnie Gail Levy, Esquire ¦ ¦ ¦ ¦ ¦ ¦Assistant Attorney General ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party defendant's attorney:¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Signature date: ¦October 22, 2013 ¦ +---------------------------------+-----------------------------------------¦ ¦City: ¦Syracuse ¦ +---------------------------------+-----------------------------------------¦ ¦Comments: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Official citation: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Appellate results: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦See also (multicaptioned case) ¦ ¦ +---------------------------------------------------------------------------+ Decision
On May 6, 2013, this Court issued a Decision and Order on this motion brought by Claimant to compel Defendant to produce certain documents. As part of the motion, Claimant sought documentation relating to the drafting and revisions of the Department of Corrections and Community Service (DOCCS) Directive 4003. Specifically, it is Claimant's position that the inmate who perpetrated the assault upon him had a criminal history of extreme violence as it was described in Directive 4003, 7 NYCRR § 1701.5 (c) (4) (iii), applicable at the time of that inmate's assessment for double cell housing. Based on this, Claimant contends that inmate was not compatible for a double cell.
In this Court's prior Decision and Order, the Court directed Defendant to produce in camera any correspondence, memoranda or other documents relating to the formulation of Directive 4003, and specifically § 1701.5 [c] [4] [iii]. Defendant has complied with the Court's direction and provided a number of documents to the Court in camera. Defendant maintains its objection to the release of these documents under Public Officers Law § 87 (2) and the deliberative process privilege. Claimant's counsel, by letter, of course without the benefit of seeing all of the documents, also continues to argue that although Directive 4003 is not explicitly applicable to Five Points Correctional Facility, it has been made applicable by the testimony of an employee in charge of the classification and transfer of inmates in New York State. Defendant has also provided some additional information directly to both Claimant and the Court.
For purposes of the issues reserved by this Court's May 6, 2013 Decision and Order, the Court has reviewed in camerathe following:
Exhibit A- New York State Department of Correctional Services Guidelines for Double Cell Housing, dated June 26, 1995, by Phillip Coombe, Jr., Acting Commissioner;For purposes of review, Claimant's demands for this discovery were made under CPLR Article 31. CPLR 3101 governs discovery and provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The only exceptions to disclosure are privileged matter and attorney work product, which are completely exempt, and materials prepared for litigation which are conditionally exempt (CPLR 3101 [b] [c], [d] [2]).
Exhibit B- February 29, 1996 Memorandum from Glenn S. Goord, Deputy Commissioner, to all Superintendents regarding Double Cell Housing Guidelines defining what constitutes a "good record";
Exhibit C- Various memoranda from Department of Correctional Services personnel regarding changes to the initial drafting of Directive 4003;
Documents "I"- Affidavit of Glenn S. Goord in support of Defendant's summary judgment motion in Jones v Goord, US Dist Ct, 2003 SD NY, 95 Civ. 8026;
Documents "I A"- Exhibits for Goord Affidavit;
Document "II"- Affidavit of Lucien J. Leclaire, Jr., in support of Defendant's summary judgment motion in Jones v Goord, 95 Civ. 8026;
Documents "II A"- Exhibits for Leclaire affidavit;
Documents "III" - May 12, 1997 testimony of Philip Coombe, Jr., Acting Commissioner of the Department of Correctional Services from the summer of 1994 to April 1996, before the Honorable Sidney H. Stein, US District Court Judge, Southern District of New York in Bolton, et al v Goord, 95 CV 3768 (SHS).
After reviewing the documents Defendant has submitted in camera, very few bear any relevance to this action. Most involve the general process by which New York State arrived at the decision to begin housing inmates in double cells, the procedure for how double cell housing would occur, and the development of the guidelines for the selection and retention of inmates for this type of housing, involving factors other than an inmate's criminal history. There were no records or documents that specifically addressed the drafting or changes made to section 1701.5 [c] [4] [iii].
The Court does find, however, that some portions of Document II, the affidavit of Lucien Leclaire, have some limited material information as he was directly involved in the development of the guidelines for implementation of double cell housing for inmates, which included the consideration of the inmate's criminal history.
Although Defendant argues that these documents are protected from disclosure pursuant to Public Officers Law § 87 (2), the deliberative process privilege or the public interest privilege, the Court does not find that the Leclaire affidavit is protected by any privilege. It was submitted to the federal court for other litigation, was not an inter- or intra-agency document and does not implicate confidential communications between public officers (see CPLR 3101 [b]; World Trade Ctr. Bombing Litig. 93 NY2d 1, 8 [1999]; Clark-Fitzpatrick, Inc. v State of New York, 209 AD2d 572 [2nd Dept 1994]; Febee v City of New York, 95 AD2d 664 [1st Dept 1983, Kupferman, J. P., dissenting]; Matter of Schwartz, 130 Misc 2d 786 [Sur Ct, Nassau County 1986]).
The deliberative process privilege has questionable applicability in State courts outside of a Freedom of Information Law (FOIL) request (
Defendant does request that if any of the documents are released, the release be subject to a confidentiality agreement. Although not privileged, the Court finds that it is appropriate to condition the release of the documents as set forth below upon the execution of a confidentiality agreement.
Accordingly, the Court finds that the following pages of the Leclaire Affidavit should be released to Claimant's counsel:
Page 1, paragraph 1 and the first sentence of paragraph 2, solely for purposes of background;Leclaire Affidavit, Exhibit 14, New York State Department of Correctional Services Guidelines for Double Cell Housing, should also be disclosed as the original guidelines that governed compatibility and suitability for double cell housing.
Pages 17-18, paragraph 21 and the first sentence of paragraph 22, again for purposes of background;
Page 19, paragraph 24, through to page 20, at end of first sentence;
Page 20, also three sentences (starting third line down), beginning "A number of meetings were held . . ." through "comments or suggestions" (eight lines down); Also, the last full sentence of paragraph number 24 on page 20, "These issues . . ." (19 lines down), not paragraph 25;
Page 22, paragraph 28 through page 24 balance of paragraph 29;
Page 26, paragraph 33 through page 27, paragraph 34;
Page 31, paragraph 39 through page 38, paragraph 54;
No other documents submitted in camera should be disclosed.
The Court also left open the issue of Defendant producing Theresa A. Knapp-David for a deposition as former Director of Classification and Movement. Based upon the documents produced in camera, there are very few documents related to the development of section 1701.5 [c] [4], and from Ms. Knapp-David's affidavit, it seems the potential of obtaining material information from her is limited. Nonetheless, Claimant is entitled to depose the witness, subject to the provisions of the CPLR. Objections can be made as necessary to protect any privileged information.
Accordingly, Claimant's motion is GRANTED on the issues unresolved by this Court's Decision and Order dated May 6, 2013, to the extent set forth in this Decision and Order, and after execution of a confidentiality agreement, Defendant is directed to provide to Claimant's counsel only the documents set forth herein within 30 days of the date of the agreement is signed.
October 22, 2013
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
see Matter of 91st St. Crane Collapse Litig., 31 Misc 3d 1207 [A], [2010 NY Slip Op. 52395 [u] Sup Ct NY County 2010]).