Following an in camera review of documents compiled during the course of an investigation by the Office of Special Investigations, the Court addressed defendant's asserted grounds for withholding or redacting the documents, including the Personal Privacy Protection Law, the public interest privilege, the Privacy Rules adopted by HIPPA, and New York's physician-patient privilege.
|Claimant(s):||MATTHEW ALIAGA, et. al.|
|Claimant short name:||ALIAGA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Sivin, Miller & Roche, LLP
By: Edward Sivin, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Aaron J. Marcus, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 17, 2020|
|See also (multicaptioned case)|
Claimants, 33 inmates in the custody of the Department of Corrections and Community Supervision (DOCCS), allege that on July 6, 2016 correction staff "stormed" the 4H Housing Unit of Mid-State Correctional Facility and "brutally assaulted and battered each of the claimants and intentionally destroyed the claimants' personal property" (claimants' Exhibit 3, Claim, ¶ 5). The incident allegedly occurred after an injury sustained by Correction Officer Kahl on July 3, 2016 was suspected to be the result of an assault by one or more inmates in the 4H Unit.
The instant motion to compel defendant to provide an unredacted copy of the final investigative report prepared by the Office of Special Investigations (OSI) was adjourned several times to permit defendant to submit an appropriate privilege log relating to the content of the OSI file (approximately 3000 pages) and to enable the parties to discuss a resolution of the motion. An appropriate privilege log has now been submitted, the parties have reached an agreement regarding the propriety of many of the defendant's redactions, and claimants have narrowed their continuing request to compel discovery to defendant's objections to the production of photo arrays of certain correction staff involved in the incident, and the details of staff injuries contained in the OSI file. Claimants have identified the following pages of the redacted records, submitted for the Court's in camera review, which they allege should be disclosed without redaction: 260, 262, 267-268, 271-272, 323, 328, 354, 428, 434, 718, 745, 747, 749, 750, 751, 752, 764-765, 775-776, 780, 783-784, 787, 791, 800, 802, 2801.
Defendant opposes the motion on the grounds that certain information and documentation is privileged under Public Officers Law § 96, the common law privilege applicable to the safety and security of a prison facility, and the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPPA) (see 45 CFR 164.512).(1)
CPLR 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has interpreted these words liberally to require the disclosure "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 ; see also Wiggins v Kopko, 105 AD3d 1132 [3d Dept 2013]). Exceptions to the policy of liberal disclosure include the disclosure of statutorily privileged material (e.g. CPLR 4501- 4508) or material which is privileged under the common law (Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). In light of the strong policy in favor of full disclosure, the burden of demonstrating the applicability of a privilege rests with the party asserting it (Impellizzeri v Campagni, 184 AD3d 1181, 1182 [4th Dept 2020]; Matter of Seelig, 302 AD2d 721 [3d Dept 2003]; Marten v Eden Park Health Servs., 250 AD2d 44 [3d Dept 1998]).
Public Officers Law § 96 (1) (known as the Personal Privacy Protection Law [hereinafter the PPPL]) limits disclosure of "any record or personal information" without the consent of the data subject. "Record" is defined, in pertinent part, as "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject irrespective of the physical form or technology used to maintain such personal information" (Public Officers Law § 92 ). "Personal information" is defined as "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" (Public Officers Law § 92 ). Although the primary objective of the PPPL was to prevent disclosure of electronically stored personal information, the definition of "record"was expanded in 1991 to make clear that the law applies "irrespective of the physical form or technology used to maintain such personal information" (Public Officers Law § 92 ); see Matter of O'Shaughnessy v New York State Div. of State Police, 202 AD2d 508, 510 [2d Dept 1994], lv denied 84 NY2d 807 ; Reale v Kiepper, 204 AD2d 72 [1st Dept 1994], lv denied 84 NY2d 813 ). The PPPL is intended to prevent unwarranted invasions of personal privacy and therefore does not prohibit disclosure where the record is subject to disclosure under the Freedom of Information Law (FOIL) (see Public Officers Law § 96  [c]). FOIL permits the deletion of identifying details or the withholding of records otherwise available "to prevent unwarranted invasions of personal property" (§ 89  [a]), defined to include, among other things, employment and medical histories (§ 89  [b] [i]), medical records of a patient in a medical facility (§ 89  [b] [ii]), personal information "reported in confidence to an agency and not relevant to the ordinary work of such agency" (§ 89  [b] [v]), personal information contained in a workers' compensation record (§ 89  [b] [vi]), and law enforcement arrest or booking photographs "unless public release of such photographs will serve a specific law enforcement purpose" (§ 89  [b] [viii]). While defendant does not expressly contend that any of the exemptions from disclosure under FOIL apply, it does claim that certain personal information contained in the requested records is not subject to disclosure under Public Officers Law § 96.
The Court has undertaken a review of the records at issue and finds that the following records were appropriately redacted in accordance with the PPPL§ 96: pages 262 (inmate's date of birth and ethnicity); 272 (inmate's date of birth and ethnicity); 718 (inmate's booking photo, age, duration of confinement in the 4H Unit, substance of confidential information) and 784 (inmate's date of birth). To the extent defendant relies upon § 96 of the PPPL to protect from disclosure information which was provided by certain inmates in confidence (see p. 718), the information was relevant to the work of both DOCCS and OSI and is therefore not immunized from discovery under this FOIL exception, incorporated by reference into Public Officers Law § 96 (see Matter of Harbatkin v New York City Dept. of Records & Info. Servs., 84 AD3d 700 [1st Dept 2011], modified on other grounds 19 NY3d 373 ). However, by its express terms, the type of information which is exempt from disclosure under Public Officers Law § 89 (a) (2) is non-exclusive. Where, as here, the sought-after information or document falls into none of the statutorily delineated categories comprising an unwarranted invasion of personal privacy, a court "must decide whether any invasion of privacy . . . is 'unwarranted' by balancing the privacy interests at stake against the public interest in disclosure of the information" (Matter of Harbatkin v New York City Dept. of Records & Info. Servs, 19 NY3d at 380 , citing Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 485 ). Here, the inmates' privacy interest in securing the confidentiality of their statements regarding who, if anyone, assaulted Officer Kahl is great. Release of information acquired on a promise of confidentiality could affect the safety and security of the confidential informants and prison staff alike (see Jones v State of New York, 58 AD2d 736 [4th Dept 1977]). Claimants, on the other hand, have failed to demonstrate that the sought-after information is necessary or even important to the prosecution of their case (cf. Robinson v State of New York, 40 Misc 3d 1034 [Ct Cl, 2013]). Inasmuch as the privacy interests of the confidential informant(s) outweigh the public interest in disclosure of the information, disclosure of the identity of the confidential informant(s) and the substance of their confidential information (see e.g. Privilege Log, p. 718) is not required. The public interest privilege is a common law doctrine applied to immunize the disclosure of "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" (Cirale v 80 Pine St. Corp., 35 NY2d 113, 117  [quotation omitted]; see also Matter of Labarbera v Ulster County Socy. for Prevention of Cruelty to Animals, 277 AD2d 672 [3d Dept 2000]; Lowrance v State of New York, 185 AD2d 268 [2d Dept 1992]). Whether the privilege attaches in a particular case is a fact-specific determination requiring the Court to balance the interests of the party seeking disclosure against the governmental-public interest at stake should the sought-after materials lose their shield of confidentiality (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8-10 ). The burden is on the agency claiming the benefit of the privilege to demonstrate the specific public interest that would be jeopardized by the requested disclosure (93 NY2d at 8; Matter of Labarbera, 277 AD2d at 673; Parker v State of New York, 269 AD2d 255 [1st Dept 2000]). Conclusory assertions of general harm to the public good are inadequate to shield the information from disclosure. Rather, there must be a specific factual showing that the need for confidentiality outweighs the need for disclosure (Cirale, 35 NY2d at 118-119; City of New York v Keene Corp., 304 AD2d 119 [1st Dept 2003]; Mahoney v Staffa, 184 AD2d 886 [3d Dept 1992], lv dismissed 80 NY2d 972 ). "Once it is shown that disclosure would be more harmful to the interests of the government than the interests of the party seeking the information, the overall public interest on balance would then be better served by nondisclosure" (Cirale, 35 NY2d at 118).
Here, defendant's redaction of the first names of correction staff involved in investigating the subject incident was proper for the safety and security of the officers (including, but not limited to, the redaction of officers' first names on pages: 262, 267, 268, 271, 272, 751, 780, 783, 784). To the extent defendant also asserts the public interest privilege to preclude disclosure of the identity of the inmate(s) who it was informed ordered the assault on Officer Kahl, it failed to provide a specific factual showing that the need for confidentiality outweighs the need for disclosure. Claimants, on the other hand, are entitled to the identity of the inmate(s) who defendant asserts ordered the assault on Officer Kahl in order to attempt to confirm or otherwise dispute its assertion that the raid on the 4H Unit was justified by some penological purpose. Given the absence of any countervailing considerations, the two-line redaction which begins paragraph six on page 354, as well as the redaction of this inmate's first name on page 784, must be removed.
The remaining documents at issue consist of correction officer photographs and references to injuries sustained by certain correction officers during the course of the raid on July 6, 2016 and shortly thereafter. Photographs of a party or employee of a party are generally subject to disclosure under CPLR 3101 (i). Defense counsel objects to the production of photographs of the correction staff involved on the ground "[t]he release of officer photographs presents an unwarranted release of information that might affect the safety and security of those officers, as they may become specifically identifiable targets" (see e.g. privilege log, p. 30). The Court agrees that the release of correction staff photographs without appropriate safeguards could subject correction staff to a risk of danger. Here, however, the claimant has agreed to the terms of a confidentiality stipulation which permit the disclosing party to designate items as "Confidential" or for "Attorneys' Eyes Only" (claimants' Exhibit 9). Designating the photographs as confidential in accordance with the terms of the parties' confidentiality stipulation (claimants' Exhibit 9) would obviate any risk that would otherwise arise from a customary exchange of the photographs.
In addition, CPLR 3101 (e) unconditionally permits a party to obtain a copy of his or her own statement. As part of the OSI investigation certain claimants were shown photo arrays of the officers who participated in the raid on the 4H Unit in order to identify their assailants. After doing so, these inmates noted the results of their identifications on the photo array sheet and signed it (see pp. 428, 434). The photo arrays used for this purpose are therefore party statements which the claimants are unconditionally entitled to. The word "statement" as used in CPLR 3101(e) has been broadly interpreted to include such things as photographs (Saccente v Toterhi, 35 AD2d 692 [1st Dept 1970]) and videotapes, which are now independently subject to discovery under CPLR 3101 (i). Balancing the need for the photographs against the potential risk of danger, the Court finds disclosure of the officer photographs is appropriate, subject to the confidentiality provisions contained in paragraph 4 of the parties' agreement (claimants' Exhibit 9). Photographs that are subject to disclosure as confidential pursuant to paragraph 4 of the parties agreement include pages of the privilege log numbered 428, 434, 764, 765, 775 and 776.
The Court will now address those portions of the documents for which the defendant has asserted the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA) implementing regulation (45 CFR 164.512) to preclude disclosure of any and all references to a correction officer's injury. HIPAA mandated national standards for electronic medical data management and, at the same time, authorized the United States Department of Health and Human Services to promulgate standards governing disclosure of protected health information (see Arons v Jutkowitz, 9 NY3d 393, 412 ). The implementing regulation, commonly referred to as the Privacy Rule, prohibits a "covered entity"(2) from disclosing a patient's "protected health information"(3) except as permitted by its provisions (see 45 CFR § 164.502). First, most of the staff injury information that has been withheld is contained in defendant's employment records "in its role as employer" and is therefore not "protected health information" under the Privacy Rule (see 45 CFR 160.103 ["Protected health information excludes individually identifiable health information . . . [i]n employment records held by a covered entity in its role as employer"]). In addition, the Rule permits disclosure during the course of a judicial proceeding in response to a subpoena or discovery request if:
(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section (45 CFR § 164.512 [e][ii][B]).
"Satisfactory assurances" are received in accordance with § 164.512 (e) (1) (iv) where the parties to the dispute have agreed to a qualified protective order. A qualified protective order includes a stipulation of the parties to the litigation which prohibits them from "using or disclosing the protected health information for any purpose other than the litigation" and "[r]equires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation" (45 CFR § 164.512 [e][v]). Claimants' counsel has executed a stipulation which meets this criteria. Inasmuch as information regarding the correction officers' injuries is relevant to the instant litigation, these materials are subject to disclosure under HIPAA and its Privacy Regulation. The inquiry does not end there, however.
HIPAA and its Privacy Regulation expressly preempt state law unless, as pertinent here, "[t]he provision of State law . . . is more stringent than a standard, requirement, or implementation specification adopted under subpart E of part 164 of this subchapter" (45 CFR § 160.203 [b]; see also 42 USC § 1320d-7[a]; Matter of Miguel M. (Barron), 17 NY3d 37 ). The physician-patient privilege, codified in CPLR 4504 (a), states in pertinent part: "Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity." The purpose of the privilege is "to encourage full disclosure by the patient so that he can secure appropriate treatment from the physician" (Matter of Grand Jury Proceedings [Doe], 56 NY2d 348, 352 ). The privilege "does not extend to information obtained outside the realms of medical diagnosis and treatment" (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 ); rather, it is expressly limited to "any information which [the medical professional] acquired in attending a patient in a professional capacity" (CPLR 4504 [a]). Thus, information acquired by a medical professional "through the application of professional skill or knowledge" is privileged and may not be disclosed without the patient's consent (Dillenbeck v Hess, 73 NY2d 278, 284 n 4 ). On the other hand, "facts which are plain to the observation of anyone without expert or professional knowledge are not within the privilege" (Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130, 134  [inner quotation marks and citation omitted]).
With this background, it is plain that much of the redacted injury information pertaining to correction staff injuries was not acquired in attending a patient in a professional capacity. Rather, reference to injuries sustained by correction staff are noted in various Use Of Force Reports and memoranda summarizing what happened (see in camera documents pp. 260, 262, 267, 268, 271, 272, 354, 745, 747, 749, 750, 751, 752, 780, 783, 784, 787, 791). The information was provided for security purposes, not to obtain medical diagnosis or treatment. Accordingly, it is not privileged under CPLR 4504.
Inasmuch as the physician-patient privilege does not apply to facts which are readily observable to laypersons, the photographs of staff injuries (see in camera documents pp. 323, 328, 428, 434, 718, 764- 765, 775-776, 2801) are not protected by the physician-patient privilege (People v Greene, 36 AD3d 219, 226 [1st Dept 2006], quoting Klein v Prudential Ins. Co. of Am., 221 NY 449, 453  [the physician-patient privilege " 'is not intended to prohibit a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge' "]).
Lastly, the portion of the Employee Accident/Injury Report for Officers Adamek and Fuller entitled Facility Health Services Report does contain information which was acquired in a professional capacity and is therefore privileged and was properly redacted (pp. 800, 802).
Accordingly, it is hereby
ORDERED that claimants' motion to compel is granted to the extent indicated herein and defendant is directed to provide the required documents or unredacted documents within thirty days of the date this Decision and Order is filed, and it is furtherORDERED that the claimants shall complete discovery and file and serve the Note of Issue and Certificate of Readiness for Trial no later than January 29, 2021.
November 17, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. To the extent defendant previously invoked the privilege set forth in Civil Rights Law § 50-a to shield the Final OSI report from disclosure, it no longer does so in light of the statute's repeal on June 12, 2020.
2. "Covered entity" is defined as "(1) A health plan. (2) A health care clearing house. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter" (45 CFR § 160.103).
3. "Protected health information" is defined as:
"individually identifiable health information:
(1) Except as provided in paragraph (2) of this definition, that is:
(i) Transmitted by electronic media;
(ii) Maintained in electronic media; or
(iii) Transmitted or maintained in any other form or medium.
(2) Protected health information excludes individually identifiable health information:
(i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g;
(ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv);
(iii) In employment records held by a covered entity in its role as employer; and(iv) Regarding a person who has been deceased for more than 50 years" (45 CFR § 160.103).