Banks v State of New York

[*1] Banks v State of New York 2008 NY Slip Op 52602(U) [22 Misc 3d 1105(A)] Decided on November 21, 2008 Ct Cl Ferreira, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2008
Ct Cl

Christopher Banks, Claimant(s)

against

State of New York

[FN1], Defendant(s)

106549



Claimant's attorney:Christopher Banks, pro se

Defendant's attorney:Hon. Andrew M. Cuomo

Attorney General of the State of New York

By: Frederick H. McGown III, Assistant Attorney General and Joan Matalavage, Assistant Attorney General

James H. Ferreira, J.

In response to claimant's motion, seeking inter alia, disclosure of certain documents, defendant opposed the production of DOCS directives 4901 and 4906, which concern the transport and transfer of inmates, on the grounds that the requested directives were "security" items that were "not to be distributed to inmates." By Decision and Order dated June 4, 2008, the Court (Ferreira, J.) ordered defendant to provide the Court with "copies of DOCS directives 4901 and 4906 and any DOCS rules or regulations classifying the directives as security items" for its in camera review. Defendant has provided the Court with these two directives, as well as directive 0001 titled "Introduction to the Policy and Procedure Manual" and directive 0410[FN2] titled "Confidential Security Information."

Civil Practice Law and Rules 3101 (a) 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 terms "material and necessary" are "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]). "The party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant" (Marten v Eden Park Health Servs., 250 AD2d 44, 46 [1998]). Determining " [w]hat is material and necessary' [and therefore discoverable] is left to the sound discretion of the lower courts" (Andon v 302-304 Mott St. Assocs., 94 NY2d 740, 746 [2000]; see also American Assn. of Bioanalysts v New York State Dept. of Health, 12 AD3d 868, 869 [2004]; NBT Bancorp v Fleet/Norstar Fin. Group, 192 AD2d 1032, 1033 [1993]; Nitz v Prudential-Bache Securities, 102 AD2d 914, 915 [1984]).

Here, defendant's opposition to disclosure succinctly states that directives 4901 and 4906 are "classified as a D security item, not to be distributed to inmates." Presumably, defendant is asserting that the documents cannot be disclosed to inmates because disclosure would create a security risk. Directive 0001 appears to codify this concern as it states that directives classified as "D" are considered "Security Material", which means "[d]irectives containing information affecting the safety and security of correctional facilities." Directive 0001 states further that "D directives shall be handled as confidential material and restricted from unauthorized access." Directive 0410 defines confidential security information "as any information which, if disclosed, could compromise the safety and security of inmates, employees, or the public, or which would otherwise violate the Public Officers Law or Departmental regulations listed as references above." Directive 0410 states further that confidential security information includes, among other things, "contents of D' classification Directives."

Public Officers Law § 87(2)(f) provides that an agency may deny access to records that "if disclosed could endanger the life or safety of any person." Where the request for materials originates from within a prison setting, courts have consistently recognized the inherent security and safety concerns that arise within such a context and denied disclosure where the materials could endanger the life or safety of a person (see Matter of Beyah v Goord, 309 AD2d 1049, 1052 [2003] [employee staffing records that would reveal the postings of correction officers [*2]throughout the facility properly withheld from disclosure]; Matter of Boddie v Goord, 251 AD2d 799 [1998], lv denied 92 NY2d 810 [1998] [lower court did not err in denying inmate request for disclosure of certain provisions of DOCS employee manual where provisions pertained to supervision and security of inmates]; Matter of Flowers v Sullivan, 149 AD2d 287, 297 [1989], appeal dismissed in part 75 NY2d 850 [1990], appeal dismissed 75 NY2d 1004 [1990] [disclosure of details regarding electrical, security and transmission systems of correctional facility properly denied where such disclosure might impair the effectiveness of these systems and compromise the safe and successful operation of the prison]; Matter of Stronza v Hoke, 148 AD2d 900 [1989], lv denied 74 NY2d 611 [1989] [portions of certain program and security assessment summaries in possession of correctional facility were exempt from disclosure to inmate under Public Officers Law § 87(2)(f)]).

At the same time, not all DOCS directives are exempt from disclosure merely because the documents relate to a correctional facility and the agency asserts that the material is protected as a "security item" (see Matter of Beyah v Goord, supra at 1052 [prison directive pertaining to the maintenance of log books did not pose "any possibility' of danger to the lives or safety of DOCS's personnel"]; Pittman v State of New York, UID No. 2001-029-063, Claim No. 101942, Motion. No. M-62911, Mignano, J. [filed March 29, 2001] [portions of DOCS directive 4901 relating to transportation and seat belt use should be disclosed as they relate to claim and do not contain security information]).

The Court has now completed its review of directives 4901 and 4906, as well as the relevant authority governing disclosure. The Court finds that both directives, in large part, relate to the security of inmates, DOCS personnel and the general public, and fall within the exemption governing materials which if disclosed could endanger the life or safety of any person. However, after careful consideration of the directives and the claim, the Court finds that a portion of directive 4901 shall be disclosed, and that directive 4906 shall not be disclosed.

Directive 4901 describes the procedures involved in the transportation of prisoners to locations outside a DOCS facility, such as transportation to court, medical offices or funerals. The directive sets forth specific information about how DOCS employees handle the myriad of issues arising from the transport of inmates, including topics such as the security precautions and protocols that DOCS employees must follow when transporting inmates.

Here, claimant alleges that while "handcuffed, and shackled with leg irons" he slipped and fell as he boarded a DOCS vehicle for travel to a medical appointment. Claimant alleges further that no support stool, running board, or assistance from correction officers was provided, and that DOCS failed to take "preventive measures in areas ... where snow covered areas can be hazardous to inmates boarding and departing transportation vehicles, when shackled and handcuffed." While directive 4901 clearly contains information that, if disclosed, could endanger any person, there are portions of directive 4901, specifically, section IV (C ) (5), (6) and (7) regarding restraint equipment and section V (C ) entitled "Medical/Dental Visits" (9/24/99 version)[FN3] that relate to issues raised in the claim and that do not, in this Court's view, [*3]contain confidential security information that if disclosed could endanger the life or safety of any person.

Directive 4906 provides guidelines for the transfer of prisoners by motor coach or mini-bus between DOCS facilities. Since claimant was in the process of being transported to a medical appointment outside the facility, and was not being transferred to another correctional facility, directive 4906 is not relevant to this claim and should not be disclosed.

Accordingly, for the above stated reasons, it is hereby

ORDERED that M-74502 regarding disclosure of DOCS directives 4901 and 4906 is granted in part and denied in part in accordance with the Court's foregoing decision; and it is further

ORDERED that defendant shall disclose to claimant, within 20 days of the filing of this decision and order, DOCS directive 4901, sections IV (C) (5), (6) and (7), and V (C) dated September 24, 1999. Footnotes

Footnote 1:The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper defendant.

Footnote 2:Defendant's cover letter to the Court providing the documents at issue refers to directive 0401; the directive regarding Confidential Security Information is actually directive 0410.

Footnote 3:It appears that section V (C ), entitled "Medical/Dental Visits," was revised on April 23, 2002. Claimant's accident is alleged to have occurred on January 3, 2002. Therefore, the version of section V (C ) that was effective as of January 2002 is the proper section to review.