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April 19, 2011

Disclosure of a public agency’s "policies, procedures, rules and regulations”

Disclosure of a public agency’s "policies, procedures, rules and regulations”
Sabilia v State of New York, 14 Misc.3d 1228(A)

Peter Sabilia and his wife, Stephanie, sued the State of New York after Peter was injured as a result of his being run over by a State motor vehicle sunbathing on the beach at Jones Beach State Park. The vehicle, a pick-up truck, was being driven by John J. Fitzwilliam, an employee of the New York State Park Police. Fitzwilliam allegedly drove over Sabilia while, according to Fitzwilliam, he was attempting to avoid a "large hole" during a routine beach patrol.

In the course of this litigation before Court of Claims Judge Milano, the Sabilias asked for copies of “policies, procedures, rules, regulations, and training manuals" concerning driving a vehicle on the beach that were applicable at the time. Judge Milano noted that:

“Importantly, the claimants' demand specifically stated that they did not seek "any police strategies regarding pursuit techniques/strategies of any kind whatsoever and is limited to those rules . . . dealing with driving on the beach (when not in pursuit)."

The State’s response:

"We will not be providing any training manuals, regulations, policies, procedures or other internal memorandums that pertain to driving a vehicle on the beach." The reasons for this advanced by the State: “its own policies and procedures have ‘little relevance to the legal standard of care’ and that the ‘standard of care in the operation of a police vehicle is controlled by the reckless disregard standard as defined in [Vehicle and Traffic Law] §1104(e) and relevant case law’"

The State also argued that materials requested by the Sailias are "privileged and confidential" and might have "a detrimental impact on the safety and security of the various officers, as well as the general public" and that the “disclosure of its policy as to non-emergency, routine operation of a pick-up truck on the beach will "limit the ability [of the officers] to successfully perform their duties and self evaluation and analysis."

Noting that the disclosure provisions of the Civil Practice Law and Rules are to be liberally construed the court said that "The party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant” and that “It is the party opposing discovery who has the burden to prove that the particular items sought are exempt or immune from disclosure.”

Concluding that the State’s internally adopted standard of care, if any, for the routine, non-emergency operation of a motor vehicle on the beach, is relevant, Judge Milano said that a "failure to abide by its own rule is some evidence of negligence."*

As the State’s reliance on “the recklessness standard of care” set forth in Vehicle and Traffic Law §1104 (e), Judge Milano said that the Sailias “correctly state that the record is devoid of any evidence that Fitzwilliam was ‘involved in an emergency operation,’ which is a prerequisite for the statute to apply.”

Holding that “The conclusory assertions of privilege and confidentiality regarding [State’s] policy as to non-emergency, routine operation of a pick-up truck on the beach, set forth in the affirmation of [State’s] attorney, are unpersuasive and that the State failed to sustain its burden of showing that the disclosure of the requested materials would pose any danger to park police officers or the public,” Judge Milano ordered the State to provide the requested "policies, procedures, rules, regulations and/or training manuals regarding driving a vehicle on the beach which were applicable at the time" to the Court for an in camera** inspection by the court.

The decision is posted on the Internet at:

*  Citing Sherman v Robinson, 80 NY2d 483, Judge Milano said that the "[v]iolation of a company's internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence."

**  From the Latin “in chambers.” A review conducted by a judge in a court closed to the public or in the judge’s chambers rather than in open court.

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