OPINION OF THE COURT
Claimant Nona Brathwaite was a resident of the Willow-brook Developmental Center, a State-operated residential institution for the mentally retarded, from February 17, 1956 until she was placed in another facility on June 29, 1979. She is now an outpatient.
In this Court of Claims action, claimant alleges that she was not mentally retarded, as reputed, and seeks to recover damages as a result of her wrongful admission to and retention at Willowbrook and for injuries—physical, mental, emotional and psychological—sustained as a result of such admission and retention while a resident and continuing to date. On this appeal, the State challenges an order requiring it to comply with claimant’s document discovery demands unless it either provides a sworn statement that the requested materials do not exist or asserts that such materials are privileged, provided that each document claimed to be privileged is identified and the nature of the privilege specified and supported.
After joinder of issue, claimant served a notice of discovery and inspection seeking (1) copies of all records maintained by the State regarding claimant’s care and treatment from the
In opposition, the State asserted, inter alia, that a three-volume file, which comprised all of claimant’s available records, had been forwarded to a commercial copying center and was available for copying and, at claimant’s expense, shipping; that the State and Federal survey records, which, under applicable regulations are not required to be kept for more than 10 years and three years, respectively, had been destroyed; that the demand for "all reports of experts” was overly broad and lacked specificity and that it was burdensome and "may well be” privileged and confidential and that the demand for reports of the Commission relating to Willow-brook during the relevant period contravened various common-law and statutory privileges, including Education Law § 6527, Public Health Law §§ 2805-l and 2805-m, Mental Hygiene Law §§ 29.29 and 45.01 et seq., especially section 45.09, and the common-law "Executive” privilege set forth in Cirale v 80 Pine St. Corp. (
The Court of Claims, noting that the State did not search for records at the unnamed facility to which claimant was transferred in 1979 or in the files in the Attorney-General’s office concerning an unrelated Federal case which had been settled, ordered the State to conduct a more thorough search and to produce items Nos. 1 through 4, subject, as noted, to the availability of the document sought and the assertion of a privilege. In a supplemental opinion, the court addressed the question of the asserted privilege with respect to the reports of the Commission and held that the privilege against disclosure found in Education Law § 6527 (3) applied only to reports generated by the investigated facility, not to the Commission’s
The Legislature, in Education Law § 6527 (3) and Mental Hygiene Law § 29.29, has created a statutory exception to the rules of discovery provided in CPLR article 31 with respect to, inter alia, a medical or a quality assurance review function, including those performed by the Commission! Education Law § 6527 (3), insofar as is relevant, provides, "Neither the proceedings nor the records relating to performance of a medical or a quality assurance review function * * * nor any report required by the department of health pursuant to section twenty-eight hundred five-Z of the public health law described herein, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law.” Mental Hygiene Law § 29.29 provides, in part, "Incident reports shall * * * mean reports of accidents and injuries affecting patient health and welfare at such departmental facilities [of the Offices of Mental Health and Mental Retardation and Developmental Disabilities].” Mental Hygiene Law § 29.29 also specifically requires each facility to make and forward to the Commission a copy of an incident report in the case of suicide, attempted suicide or patient injury. Clearly, the interplay of these two statutes places the incident report required by Mental Hygiene Law § 29.29 beyond the scope of discovery.
The only two reported decisions dealing directly with this issue are in conflict. In the earlier one, Elmer v State of New York (
Five months after Elmer was decided, the Third Department, in Smith v State of New York (
We find ourselves in accord with the Third Department’s view as to the scope of the statutory privilege and the rationale underlying it and hold that the investigative reports of the Commission are exempt from disclosure. If an investigative agency is to fulfill its mission, it is absolutely essential that it have unimpeded access to the information available. If confidentiality is not enforced, the investigator’s inquiries will be met by the muted tone and tepid comment rather than the blunt exchange and candid response. Nor is the confidentiality envisioned by the statute protected, as the Court of Claims held, by limiting its reach to the report of the investigated facility and excluding therefrom the Commission’s report. The publication of either report is enough to chill the willingness to speak.
In Zion v New York Hosp. (
In analogous situations, courts have sustained the public interest privilege to exempt from disclosure similar investigative materials generated by a variety of agencies with functions akin to that of the Commission. (See, e.g., Martin A. v Gross,
The State also argues that the entire matter ought to be remanded to afford it the further opportunity to respond to claimant’s discovery requests in light of a recent amendment to the CPLR’s discovery provisions. CPLR 3120, the notice of discovery and production for inspection provision, was amended (L 1993, ch 98, § 8), effective January 1, 1994, subsequent to the entry of the order on appeal, to delete from subdivision (a) the phrases "specifically” and "specified with reasonable particularity”, thereby eliminating the requirement that a party seeking discovery specify document requests with particularity and specificity (see, CPLR 3120 [a] [1] [i]; see also, Rios v Donovan,
Since the amendment to CPLR 3120 is procedural and accordingly remedial in nature it should, as the State concedes, be applied retroactively. (McKinney’s Cons Laws of NY, Book 1, Statutes § 55.) It should be noted that neither the
The State’s position is that it justifiably relied on the Rios and King doctrines in resisting disclosure and should now be afforded an opportunity to respond to the discovery request under the amended statute. Since, however, under the order appealed from the State may explain its inability to locate the document(s) sought or assert a privilege with respect thereto we believe that a proper balance has been struck between claimant’s right to discovery and the burden imposed by the assertion of such right. We therefore see no need for a remand for a further response to the demand.
Accordingly, the order of the Court of Claims of the State of New York (Gerard M. Weisberg, J.), entered October 5, 1993, should be modified, on the law, to vacate item No. 5 from the notice of discovery and inspection and, except as thus modified, affirmed, without costs or disbursements.
Murphy, P. J., Kupferman, Asch and Tom, JJ., concur.
Order, Court of Claims of the State of New York, entered October 5, 1993, modified, on the law, to vacate item No. 5 from the notice of discovery and inspection and, except as thus modified, affirmed, without costs or disbursements.