Pinks v Turnbull

[*1] Pinks v Turnbull 2006 NY Slip Op 51687(U) [13 Misc 3d 1204(A)] Decided on August 29, 2006 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2006
Supreme Court, New York County

David Pinks, Plaintiff,

against

Walter Turnbull, HORACE TURNBULL, JOHN KING, FRANK JONES, THE BOYS CHOIR OF HARLEM, THE NEW YORK CITY BOARD OF EDUCATION, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, et al., Defendants.



100228/04



Plaintiff: Michael G. Dowd, Esq.

420 Fifth Ave, 25th Floor

NY, NY 10018

(212) 703-5450

Defendants Walter Turnbull, Horace Turnbull

& Boys Choir of Harlem, Inc.: Mound, Cotton, Wollan & Greengrass

One Battery Park Plaza

NY, NY 10004

(212) 804-4200

Defendants The New York City Board of Education,

The New York City Dept of Education & The City

of New York: Michael A. Cardozo

Corp. Counsel

100 Church St, 4th Floor

NY, NY 10007

(212) 788-0541

Doris Ling-Cohan, J.

Pursuant to the interim order of this Court, dated October 17, 2005 and entered on Nov. 7, 2005, defendants New York City Board of Education, the Department of Education of the City of New York and John King (the "City defendants") have produced for in camera review documents described in the order, including: (1) all documents not previously produced related to the investigation of this matter conducted by the Special Commissioner of Investigation for the New York City School District (SCI) and (2) copies of documents in the employment record and file of defendant John King, Jr.(King) sought in certain discovery requests. The Court notes that the in camera submission was voluminous, consisting of a box of documents, which includes transcripts of certain taped interviews by the SCI. The City defendants have also [*2]produced a privilege log pursuant to CPLR 3122 (b) for the documents they seek to withhold from production. The documents submitted for in camera review were sought by plaintiff David Pinks (Pinks) and co-defendants Walter Turnbull, Horace Turnbull and the Boys' Choir of Harlem (the Boys' Choir defendants) in their motion to compel disclosure. This action was brought by Pinks to recover damages for physical and emotional injuries he allegedly sustained when he was sexually abused by defendant Frank Jones (Jones), while he was a student at the Choir Academy of Harlem (Choir Academy).

I. Applicable Legal Principles

A. General Scope of Disclosure

CPLR 3101(a) provides "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of burden of proof ...". This provision has been liberally construed to require disclosure upon request of "any facts bearing on the controversy which will assist preparation for trial ..." (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).

B. Objections to Disclosure by the City Defendants

The legal basis for the City defendants' objections to disclosure are discussed in the affirmation of Alison E. Estess, Esq. in opposition to motions to compel by Boys' Choir defendants and plaintiff (City Aff. in Opp.), and in the privilege log prepared by counsel for the City defendants and submitted to the Court along with the documents for in camera inspection.

1. Exemptions to Disclosure under Freedom of Information Law ("FOIL") (Public Officers Law [POL] § 87 [2]).

The City defendants' responses to the Boys' Choir discovery requests cite the exemptions in: (a) POL § 87 (2) (e) (materials compiled for law enforcement purposes); (b) POL § 87 (2) (g) (inter-agency or intra-agency materials); and (c ) POL § 87 (2)(b) (materials if disclosed would constitute an unwarranted invasion of personal privacy under POL § 89 [2]). However, the City defendants' opposition papers to the motions to compel referred only to POL § 87 (2) (b) and (g).

POL § 87 (2)(g) allows an agency to deny public access to records that "are inter-agency or intra-agency materials which are not:

"i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; iv. external audits, including but not limited to audits performed by the comptroller and the federal government."

FOIL is based upon the policy that agency records are presumptively available to members of the public, unless the agency establishes that the records fall within one of the statute's exemptions (see Matter of Farbman & Sons, Inc. v New York City Health & Hosps. Corp., 62 NY2d 75, 79-80 [1984]). The exemption in POL§ 87 (2)(g) applies to "predecisional information which is prepared in order to assist the decision-making process" (Matter of McAulay v Board of Educ.of the City of New York, 61 AD2d 1048 [2d Dept 1978], affd 48 NY2d 659 [1979]). The purpose of this exemption is to " protect the deliberative process of the government by ensuring that persons is an advisory role would be able to express their opinions freely to agency decision makers'" (Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, [*3]132 [1985], quoting Matter of Sea Crest Constr. Corp. v Stubing, 82 AD2d 546, 549 [2d Dept 1981]); see also Matter of Gould v New York City Police Dept., 89 NY2d 267, 276 [1996]). "Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of statistical or factual tabulations or data' (Public Officers Law § 87 [2] [g] [i])" (Matter of Gould v New York City Police Dept., 89 NY2d at 276-277). The term "factual data" "means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" (id., at 277).

The Boys' Choir defendants assert that the provisions of the Public Officers Law concerning the availability of government records under FOIL do not apply to this matter, as they are seeking disclosure pursuant to CPLR Article 31, rather than bringing an Article 78 proceeding challenging the denial of a FOIL request. In Farbman & Sons v New York City Health and Hosps. Corp. (62 NY2d at 80-81), the Court of Appeals observed that the scope of disclosure under CPLR article 31 is more restrictive than FOIL; however, a party to litigation against a government agency may also avail itself of FOIL to gain access to public records.

POL § 87 (2) (e) exempts from public disclosure "materials "compiled for law enforcement purposes and which, if disclosed, would:

"i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

As noted above, the City defendants cite this "law enforcement exemption" in their response to the discovery demands of the Boys' Choir defendants and plaintiff (City Aff. in Opp. Ex. B), but do not discuss this in their papers opposing the motions to compel disclosure. One of the decisions cited by the City defendants, City of New York v BusTop Shelters, Inc. (104 Misc 2d 702 [Sup Ct, New York County 1979] [Kassal, J.]), concludes that documents related to an investigation conducted by the New York City Department of Investigation (DOI), including the names and testimony of all witnesses interviewed, are protected by both the common law "public interest privilege" (see below) and law enforcement exemption in POL § 87 (2) (e). In BusTop Shelters, the Court concluded, based upon an affidavit by the Commissioner of Investigation, that the materials requested were compiled for law enforcement purposes, within the meaning of POL § 87 (2) (e) (104 Misc 2d at 711). The Court further observed that the exemption in POL § 87 (2) (e) did not require that the agency compiling or holding the records, in that case DOI, be considered to be a "law enforcement agency" (104 Misc 2d at 711). According to the City defendants, the "highly confidential internal investigative post-incident activities performed by SCI mirror those performed by the Commissioner of Investigation of the City of New York" (City Aff.in Opp., ¶ 18). The Boys' Choir defendants point out, however, that the SCI investigation of this matter culminating in the final report was conducted after the criminal prosecution and investigation of Jones was concluded.

POL § 87 (2) (b) exempts from public disclosure materials, which "if disclosed would constitute an unwarranted invasion of personal privacy" under POL § 89 (2). The City [*4]defendants cite the following provisions of POL § 89 (2), providing, in pertinent part: "(a) The committee on public access to records may promulgate guidelines regarding the deletion of identifying details or withholding of records otherwise available under this article to prevent unwarranted invasions of personal privacy. In the absence of such guidelines, an agency may delete identifying details when it makes records available.(b) An unwarranted invasion of personal privacy includes, but shall not be limited to:

i. disclosure of employment, medical or credit histories or personal references of applicants for employment. ......(c) Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraphs (a) and (b) of this subdivision:i. when identifying details are deleted; ..."

According to the City defendants, the above statutory provisions preclude disclosure of the documents in the personnel file of defendant King pertaining to his employment or medical history, as well as disclosure of any credit history or personal references King provided to the New York City Board of Education (NYCBOE).

2. Public Interest Privilege

In addition, the City defendants assert the public interest privilege as a further basis for objecting to the disclosure of the SCI documents. The FOIL preserves the common law privilege, known as the public interest privilege which "attaches to 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 sources should not be divulged'" (Cirale v 80 Pine Street Corp., 35 NY2d 113, 117 [1974] [citations omitted]). The government agency "claiming some special governmental -public interest cone of silence' " must establish its entitlement to the privilege by showing "the specific public interest that would be jeopardized by an otherwise customary exchange of information" (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8 [1999]). In determining whether the public interest privilege applies, the court must balance the harm to the public interest if the confidential information is disclosed, against the harm to the party seeking disclosure if the information is withheld.

There is a public societal interest in "redressing private wrongs and arriving at a just result in private litigation" (Cirale, 35 NY2d at 118). Accordingly, in performing the balancing, the court is, in essence, determining whether the overall public interest is better served by disclosure or non-disclosure of the information. Therefore, " [o]nce it is shown that disclosure would be more harmful to the interests of the government than [nondisclosure would be to] the interests of the party seeking the information, the overall public interest on balance would then be better served by nondisclosure' " (Matter of World Trade Ctr. Bombing Litig., 93 NY2d at 8-9, quoting Cirale v 80 Pine St. Corp., 35 NY2d at 118 [parentheticals supplied; internal citations removed]).

According to the City's attorney, "...[d]isclosure of SCI's investigative files relative to its investigation and preparation of the final report would chill confidential sources from providing information to SCI, and would impair SCI's ability to develop and protect such sources and information in future investigations related to public safety and the efficiency and operation of [*5]various City agencies and officials, as well as those persons and entities that do business with the City" (City Aff. in Opp., ¶ 17). The City's attorney further asserts, "Disclosure of the requested materials would also expose SCI's internal work product - confidential materials that are critical to its ability to conduct investigations properly and effectively - to inappropriate and potentially dangerous outside scrutiny" (id.).

According to the Boys' Choir defendants, however, the sources of the information provided to SCI "are neither anonymous, nor confidential ", as they were specifically identified in SCI's final report, dated December 23, 2003, denominated as the "Condon Report", after Richard Condon, the Special Commissioner of Investigation for the New York City School District. In addition, many of these sources were identified in open court during the criminal trial of Jones and actually testified at that trial, including plaintiff and Timothy Battle and George Reyes, the two individuals to whom plaintiff first revealed his allegations of sexual abuse by Jones (Reply Affirmation of David Nelson, Esq. in Support of Boys' Choir Defendants' Motion to Compel Discovery [Nelson Reply Aff.], at ¶ 14). The attorney for the Boys' Choir defendants concludes: "One would assume that their recounts would be consistent and it is hard to imagine a scenario whereby those individuals would assume that they were speaking to the Commissioner on a condition of confidentiality, or that they were not aware of the public nature of their testimony. Therefore, the public interest in ensuring full and frank exchanges is simply not affected by the disclosure of the material, particularly where the plaintiff, David Pinks, who was the victim of the sexual abuse allegedly perpetrated by Frank Jones, has not objected to the production of the material, and rather, has joined in the Boys' Choir's demands for this production.

(Nelson Reply Aff., at ¶ 12). As was noted above, the Boys' Choir defendants also pointed out that the Condon Report was prepared more than a year after the conviction of Jones in the criminal trial. Moreover, the parties to this action have a Confidentiality Agreement in place which will prevent dissemination of the confidential investigative activities performed by the SCI. In addition, the Boys' Choir defendants assert that the City will "no doubt" use the Condon Report and the materials used to prepare it in its defense of this action (Nelson Reply Aff., at ¶ 10).

II. Production of Specific Categories of Documents

The documents produced by the City defendants for in camera inspection are so numerous and, in some cases, repetitive, that their availability for production is discussed in accordance with the following general categories of documents.

A. Internal Memoranda Written by SCI Investigators to the File or to other SCI Personnel

The SCI internal memoranda include descriptions of work performed by the investigators, their summaries of the interviews of witnesses and, in some cases, the testimony at the criminal trial of Jones. According to the City defendants, the public interest privilege as well as the POL § 87 (2) (g) (intra-agency FOIL exemption) protects internal memoranda containing investigators' opinions and observations.

In order to determine whether the public interest privilege applies, it is necessary to determine whether, on balance, the overall public interest will be better served by maintaining the confidentiality of the requested materials or by disclosing them to defendants (see Matter of [*6]World Trade Ctr. Bombing Litig., 93 NY2d at 10; Cirale v 80 Pine St Corp., 35 NY2d at 118). As has been discussed above, the City defendants assert that disclosure of SCI's internal investigative files would harm the public interest by: (1) chilling confidential sources from providing information to SCI and impairing SCI's ability to develop and protect such sources in future investigations; and (2) exposing SCI's internal work product, characterized as "confidential materials that are critical to its ability to conduct investigations properly and effectively ... to inappropriate and potentially dangerous outside scrutiny" (City Aff. in Opp., at ¶ 17).

The Boys' Choir defendants and plaintiff have asserted that the information from the SCI investigation, including presumably the internal memoranda, are material and necessary to their defense and prosecution of this action, as they concern the same allegations as are asserted in this action. In this case, however, revealing the internal communications, analyses and comments of SCI investigators would inhibit their ability to freely comment on the investigation of a sensitive matter involving the operations and policies of the City's schools (see Martin A. v Gross, 194 AD2d 195, 203-204 [1st Dept 1993]; One Beekman Place, Inc. v City of New York, 169 AD2d 492, 493-494 [1st Dept 1991]; Matter of Langert v Tenney, 5 AD2d 586, 588-589 [1st Dept 1958], lv dismissed 5 NY2d 875 [1959]); City of New York v BusTop Shelters, Inc., 104 Misc 2d at 710-711). Accordingly, the public interest supports non-disclosure of the SCI internal memoranda, with the exception of the two memoranda described below.

The City defendants also assert that the SCI internal memoranda come within the FOIL exemption for "inter-agency or intra-agency materials" in POL § 87 (2)(b). As has been discussed above, the purpose of this exemption is similar to that of the public interest privilege, to " protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers' " (Matter of Xerox Corp. v Town of Webster, 65 NY2d at 132 [citations and internal quotation marks omitted]; see also Matter of Gould v New York City Police Dept., 89 NY2d at 276). This exemption, however, does not apply to "factual data", referring to "objective information, in contrast to opinions, ideas or advice exchanged as part of the consultative or deliberative process of government decision making" ( id., at 276-277; POL § 87 [2] [b] [i]). Accordingly, the following documents containing purely factual data are subject to disclosure, provided that personal information identifying the listed individuals, including Social Security numbers and telephone numbers is redacted (see POL § 89 [2]): (1) memorandum dated May 19, 2003 containing a list of Boys' Choir of Harlem employees from August 22, 1995 - November 1, 2001 (Bates. Nos. 803-808); and (2) memorandum dated November 20, 2003 containing list of Boys' Choir trustees (Bates Nos. 873-876).

B. Drafts of the Report of SCI Richard Condon to New York City Schools Chancellor, Joel Klein

The City defendants assert that the drafts of the above report, known as the Condon Report, are protected from disclosure by the public interest privilege, the intra-agency exemption to FOIL in POL § 87 (2) (b), the attorney/client privilege, and the attorney work product privilege. For the reasons discussed in section (A), above, the drafts of the Condon Report are not subject to disclosure. The drafts are analogous to the SCI internal memoranda, and, thus, disclosing them to the litigants would reveal the internal deliberations, communications, analyses and opinions of SCI investigators and staff members. The final Condon Report is subject to [*7]disclosure, if it has not been produced in this action.

C. Handwritten Notes of SCI Investigators

The handwritten notes, many of which are from unidentified authors, are not subject to disclosure, based upon the public interest privilege and the intra-agency exemption in POL § 87 (2) (b) for the reasons discussed in sections (A) and (B), above.

D. Lists of Interview Questions

The lists of interview questions, like the internal SCI memoranda, the drafts of the Condon Report and the handwritten notes, are protected from disclosure by the public interest privilege and the intra-agency exemption in POL § 87 (2) (b), for the reasons discussed in sections (A) and (B), above.

E. Transcripts and Tape Recordings of Interviews by SCI Investigators

The SCI investigators conducted interviews with many employees of the Boys' Choir, the Choir Academy and the NYCBOE now known as the Department of Education of the City of New York (DOE) in order to prepare the Condon Report. The City defendants assert that the interview transcripts and recordings are protected from disclosure by the public interest privilege and the intra-agency exemption to FOIL in POL § 87 (2) (b). In addition, the transcripts and recordings may contain personal identifying information which, if revealed, would constitute an unwarranted invasion of personal privacy, pursuant to POL § 89 (2).

Significantly, the City has already produced the transcripts of the SCI interviews with Dr. Walter Turnbull and Horace Turnbull (the Turnbulls), two of the Boys' Choir defendants, after observing that "it is our considered opinion that the court is highly unlikely to sustain the public interest privilege with respect to any party statements" (City Aff. in Opp., Ex. C [letter dated March 25, 2005 from Alison E. Estess, Esq. to Michael G. Dowd, Esq.] ). For the same reason, the Boys' Choir defendants and plaintiffs are also entitled to the transcripts and tape recordings of the SCI interviews of the other parties, plaintiff and former Choir Academy principal King. All information which could constitute an unwarranted invasion of personal privacy within the meaning of POL § 89 (2), including Social Security numbers and telephone numbers, should be redacted. In addition, the City defendants must produce the transcripts and recordings of the SCI interviews with any other individual it intends to call as a witness at trial.

The Boys' Choir defendants emphasize the fact that the individuals interviewed by SCI for the Condon Report were not anonymous confidential sources (compare Langert v Tenney, 5 AD2d 586, supra [public interest privilege protects from disclosure the name of a confidential informant and the contents of the informant's communications with the New York City Department of Investigation]). Specifically, the Boys' Choir defendants point out that some of the individuals interviewed by SCI, namely plaintiff, Timothy Battle and George Reyes, testified at the criminal trial of Jones. The City should also produce the transcripts and recordings of the SCI interviews with these individuals. In addition, the Boys' Choir defendants note that the Condon Report specifically identifies certain other individuals who were interviewed by SCI and refers to their interviews. Therefore, the City defendants should produce the transcripts and tape recordings of SCI interviews with the individuals identified in the Condon Report [FN1], if such [*8]transcripts and recordings exist.

All transcripts and recordings produced by the City defendants should be redacted to delete identifying details which constitute an unwarranted invasion of personal privacy, within the meaning of POL § 89 (2), and come within the Confidentiality Agreement previously executed by the parties.

F. Subpoenas Issued by SCI

The City defendants assert that the subpoenas it issued are protected by the public interest privilege. The subpoenas contain the following statement, addressed to the recipient: "You Are Requested Not To Disclose The Existence of This Subpoena As Such Disclosure Would Impede The Investigation Being Conducted And Interfere With The Enforcement Of Law." This indicates that the subpoenaed individuals and organizations were expected to keep the subpoenas confidential. Moreover, this Court has already required the City defendants to disclose the material and relevant information obtained by SCI in connection with the Condon Report. The subpoenas, themselves, are not material and relevant to the prosecution and defense of this action, within the meaning of CPLR 3101 (a).

G. Letters in Response to SCI Subpoenas

See Section F, above.

H. Documents from Personnel File of co-defendant King

This Court has ordered for in camera inspection "copies of all documents in the employment record and file of defendant John King referred to in the Boys Choir defendants Discovery Demand No. 17." This demand, which is also included in plaintiff's discovery demands, calls for the production of "[t]rue and accurate copies of the employment records for co-defendant JOHN KING, including but not limited to his application for employment, employment contracts, background checks, resume, diaries, notes and other memoranda, disciplinary actions, complaints and continuing education training, specifically in the area of identification, prevention and reporting or child abuse" (Affirmation of David Nelson, Esq. in Support of Boys' Choir Defendants' Motion to Compel Disclosure, Ex. 1).

The City defendants have raised several objections to the production of documents from King's personnel file. A major objection is based upon certain provisions of FOIL in POL § § 87 and 89 [FN2]. According to the City defendants, disclosure of the documents in King's personnel file [*9]"would constitute an unwarranted invasion of personal privacy", within the meaning of POL § 89 (2) (see POL § 87 [2] [b]), as the documents constitute an employment history and may include "personal references of applicants for employment" (POL § 89 [2] [b]). It should be noted, however, that the decision cited by the City defendants, Matter of Obiajulu v City of Rochester (213 AD2d 1055 [4th Dept 1995]), authorized the disclosure of performance appraisals and files concerning disciplinary charges for certain public employees, in response to a FOIL request, provided that personal identifying details are redacted in accordance with POL § 89 (2) (c) (I).

The City defendants further assert that the documents in King's personnel file are protected by the public interest privilege, as disclosure of those documents, particularly the evaluations of King "would be an impermissible invasion of the thought processes and policy making functions of the Board" (Estess Aff. In Opp., at ¶ 29). In Weingard v City of New York (9 Misc 3d 891, 894 [Sup Ct, New York County 2003] [Ling-Cohan, J]), this Court concluded that "generally, personnel records of non-law enforcement City employees do not constitute policy-making materials and therefore are not protected by the public interest privilege."

Lastly, the City asserts that the documents in King's personnel file are not "material and necessary" to the defense of this action within the meaning of CPLR 3101 (a). For example, the City defendants assert that there is no cause of action for negligent hiring where, as in the instant case, the City has conceded that King was acting within the scope of his employment (see Karoon v New York City Tr. Auth., 241 AD2d 323 [1st Dept 1997]). The City defendants further assert that prior complaints of King's misconduct or malfeasance are not probative of the issue in this case, namely whether he was negligent in his supervision of plaintiff. According to the City defendants, King's personnel file contains information which is not germane to this action and, if released, may be prejudicial to both King and the City, including: (1) personal identifying information (teacher's employee number, social security number); (2) attendance records; (3) prior and subsequent work assignments; (4) rating categories in evaluations which, if disclosed "may be taken out of context and used in a prejudicial manner" (Estess Aff. in Opp., at ¶ 28).

The Boys' Choir defendants assert that King's personnel file contains categories of documents which are highly relevant and, hence discoverable, including any documents dealing with plaintiff or Jones. According to the Boys' Choir defendants, there are allegations against the City defendants, in addition to vicarious liability for King's acts or omissions, including failure to provide a safe and secure environment and failure to establish effective professional training and education programs. In further support of the relevance of the documents in King's personnel file, the Boys' Choir defendants emphasize that King is a named defendant in this action, he was allegedly removed as principal of the Choir Academy following the release of the [*10]Condon Report and King allegedly knew of the abuse of plaintiff by Jones, as well as the abuse of other students by Jones.

After an in camera review of the documents from King's personnel file submitted by the City defendants, this Court concludes that none of the documents specifically mentions or deals with issues in this matter, including: (1) allegations of abuse of plaintiff by Jones and King's knowledge of and actions taken in response to such allegations; (2) allegations of abuse of other students by Jones and King's knowledge of and actions taken in response to such allegations; (3) King's continuing education and training in the areas of prevention and reporting of child abuse. Accordingly, the majority of the documents in King's personnel file are not discoverable, as they are not "material and necessary in the prosecution or defense" of this action, within the meaning of CPLR 3101 (a).

The following documents, however, are sufficiently relevant and material to the allegations in this action that they are discoverable pursuant to CPLR 3101 (a): (1) "2001-02 End of Year Evaluation" of King by Richard Organisciak, Superintendent of Alternative, Adult and Continuing Education (Bates No. 5272); (2) King's resume and annexed certificates (Bates Nos. 5330-5337); (3) Principal Performance Review of King for 2001-2002 School Year (Bates Nos. 5340-5355); and (4) letter dated August 4, 2004 from Lawrence Becker, Chief Administrator, Division of Human services DOE. Prior to producing these documents, the City defendants must redact all personal identifying details in accordance with POL § 89 (2) (c) (i) , including King's address, telephone number and Social Security number.

Accordingly, it is

ORDERED that the City shall produce the documents described herein within 30 days of the date of service of a copy of this decision and order, with notice of entry [FN3]; and it is further

ORDERED that with 30 days of entry, plaintiff shall serve upon all parties to this action, a copy of this decision and order, with notice of entry.

This constitutes the Decision and Order of the Court.

Dated: August 29,2006 ENTER: ,

Doris Ling-Cohan, JSC

Check One: [ ] FINAL DISPOSITION [ X ] NON-FINAL DISPOSITION

Check if Appropriate: [ ] DO NOT POST [ ] REFERENCE

C:\htformat\f5168760.txt Footnotes

Footnote 1: The individuals identified in the Condon Report, who have not already been mentioned include: Larry Robinson, a Boys' Choir employee; Gregory Hodge, principal of Frederick Douglass Academy; Shelley Lander, Supervisor of Pupil Personnel Services at the DOE Office of Alternative, Adult and Continuing Education Schools and Programs; Margaret Bing-Wade, Deputy Superintendent of Alternative, Adult and Continuing Education; James Robinson, security guard hired by the Boys' Choir; Dennis Brennan, Director of Counseling at the Choir Academy; Douglass George, teacher at the Choir Academy; Gilbert Robinson, Boys' Choir employee; Nicholas John, Boys' Choir Comptroller; Dorothy Mayhew, Administrative Assistant to Horace Turnbull; Sean Seymour, assistant to Frank Jones; John Treadwell, former principal of the Choir Academy; Constance Campbell, school safety agent.

Footnote 2: The privilege log submitted by the City defendants along with the majority of the documents from King's personnel file produced for in camera inspection identifies "Public Officers Law" as the reason for withholding production of these documents. The City defendants have not produced a privilege log in connection with the additional documents from King's personnel file, which they produced for in camera inspection on January 20, 2006. The Boys' Choir defendants have requested the City defendants to submit such a privilege log. For the purposes of this decision and order, this Court will assume that the City defendants have raised the same objections to the production of all of the documents in King's personnel file., as they have raised to the production of the documents in the SCI investigative file, any other objection is deemed waived as not timely asserted.

Footnote 3: The City defendants may pick up the in camera submissions, within 30 days from today, from DCM clerk of Part 62. After 30 days, the documents will be destroyed, if not picked up.