# Opinion

> District Court, N.D. New York · September 10, 2026

URL: https://www.frixlaw.com/law-library/cases/11439136

## Case

- **Full name:** Disability Rights New York v. New York State Dep't of Corr. and Cmty. Supervision; and Anthony J. Annucci, in his official capacity as the Acting Comm'r of the New York State Dep't of Corr. and Cmty. Supervision
- **Court:** District Court, N.D. New York
- **Decided:** September 10, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________

DISABILITY RIGHTS NEW YORK,

Plaintiff,
v. 1:21-CV-0739
(GTS/CFH)
NEW YORK STATE DEP'T OF CORR. AND
CMTY. SUPERVISION; and ANTHONY J.
ANNUCCI, in his official capacity as the Acting
Comm'r of the New York State Dep't of Corr.
and Cmty. Supervision,

Defendants.
________________________________________

APPEARANCES: OF COUNSEL:

DISABILITY RIGHTS NEW YORK BRANDY L. L. TOMLINSON, ESQ.
Counsel for Plaintiff ALYSSA GALEA, ESQ.
44 Exchange Boulevard, Suite 110 JESSICA LOUISE RICHWALDER, ESQ.
Rochester, New York 14614

HON. LETITIA A. JAMES HELENA O. PEDERSON, ESQ.
Attorney General for the State of New York JENNIFER J. CORCORAN, ESQ.
Counsel for Defendants ADRIENNE J. KERWIN, ESQ.
The Capitol Assistant Attorneys General
Albany, New York 12224

GLENN T. SUDDABY, United States District Judge

DECISION and ORDER

Currently before the Court, in this civil rights action filed by Disability Rights New York
("Plaintiff" or "DRNY") against the New York State Department of Corrections and Community
Supervision ("DOCCS") and its Acting Commissioner, Anthony Annucci (collectively,
"Defendants"), are Plaintiff's motion summary judgment and Defendants’ motion for summary
judgment. (Dkt. Nos. 81 and 83.) For the reasons set forth below, Plaintiff’s motion is denied and
1
Defendants’ motion is granted in part and denied in part.
I. RELEVANT BACKGROUND
For the sake of brevity, the Court will not recite in detail the claims and factual
allegations of Plaintiff’s Amended Complaint and the relevant procedural background of this

action in this Decision and Order, which is intended primarily for the review of the parties, who
had have (in their motion papers) demonstrated an adequate accurate understanding of that
information. Rather, the Court will respectfully refer the reader to the background sections of
the Court’s Decisions and Orders of February 17, 2022, January 17, 2024, and September 8,
2025 (Dkt. Nos. 28, 42, and 73).
II. PARTIES’ ARGUMENTS ON THEIR MOTIONS
A. Plaintiff’s Motion for Summary Judgment
1. Plaintiff’s Opening Memorandum of Law
Generally, in support of its motion, Plaintiff asserts four arguments. (Dkt. No. 81,
Attach. 1.) First, Plaintiff argues, it is entitled to summary judgment on its claims under the

P&A Acts, because (1) Defendants have violated the P&A Acts by depriving Plaintiff of its right
to access to unredacted copies of the records of Individual C, as recognized in Disability Rights
New York v. Wise, 171 F. Supp. 3d 54, 59 (N.D.N.Y. 2016), and (2) in deciding whether to award
Plaintiff summary judgment on its claims under the P&A Acts, the Court should take judicial
notice of the record evidence warranting the Cour’s prior ruling that a pandemic or other state or
national emergency is not a permissible reason to delay Plaintiff timely access to records under
the P&A Acts. (Id. at 9-14 [attaching pages “8” through “13” of Plf.’s Memo. of Law].)1

1 The Court notes that page citations in this Decision and Order refer to the screen numbers
on the Court's Case Management / Electronic Case Filing (“CM/ECF”) System, not to the page
2
Second, Plaintiff argues, it is entitled to summary judgment on its claims under 42 U.S.C.
§ 1983, because it is undisputed that Defendant Annucci, in his capacity as DOCCS’ Acting
Commissioner, acted under color of state law when he maintained DOCCS’ unlawful policies
that deprived Plaintiff of its federal right statutory right to prompt access to copies of records (in

order to pursue its mandate to protect and advocate for people with disabilities in New York
State). (Id. at 14.)
Third, Plaintiff argues, it is entitled to declaratory relief, because (a) 28 U.S.C. § 2201,
regardless of whether further relief is or could be sought, the Court may declare the rights and
other legal relations of any interested party where the judgment will serve a useful purpose in
clarifying and settling the legal relations in issue, or where it will terminate and afford relief
from the uncertainty, insecurity, and controversy giving rise to the proceeding, and (b) here,
because DOCCS has wrongfully refused DRNY access to the unredacted of Individual C without
disclosing in discovery supporting facts of its undefined and speculative security concerns (in
Defendants’ letter-brief of August 1, 2022), the dispute between the parties turns purely on the

meaning of the relevant statutes and regulations. (Id. at 15.)
Fourth, Plaintiff argues, it is entitled to a permanent injunction, because (a) it lacks an
adequate remedy at law (other than an injunction granting DRNY access to unredacted records in
copy format as provided under the P&A Acts and Access Regulations), given that DOCCS has
wrongfully refused Plaintiff access to the unredacted of Individual C without disclosing in
discovery supporting facts of its undefined and speculative security concerns, and (b) DOCCS
has caused Plaintiff irreparable harm by refusing to provide, and continuing to deny access to,
the unredacted records of Individual C (namely, the OSI records), and thus interfering with

numbers stated on the documents contained there
3
in.
Plaintiff’s mandate to investigate incidents of abuse and neglect of individuals with disabilities
and provide advocacy services. (Id. at 15-16.)
2. Defendants’ Opposition Memorandum of Law
Generally, in their opposition memorandum of law, Defendants asserts three arguments.

(Dkt. No. 89.) First, Defendants argue, Plaintiff is not entitled to summary judgment finding
that Defendant violated the PA&A Acts by producing a redacted record for the following
reasons: (a) on pages 8 and 9 of its Decision and Order of January 17, 2024 (denying Plaintiff’s
motion for contempt), the Court already found that “it did not intend the original preliminary
injunction to require the disclosure of the redacted information in question” (which consisted of a
document regarding Individual C that contained a single redaction of the name and DIN of a
third-party confidential OSI witness); (b) on page 10 of that Decision and Order, the Court also
found that “Defendants articulated and offered admissible record evidence of three reasons for
the discrete redactions in question,” in particular, Paragraphs 13 and 14 of the declaration of
DOCCS Deputy Chief Investigator Shawn Mousseau; (c) on page 8 of that Decision and Order,

the Court found that “Wise is not controlling and in any event is factually distinguishable from
the current action” because Wise addressed the withholding of “heavily” redacted records of
residents in group homes, not inmates in correctional facilities, by a defendant that failed to
articulate a plausible reason for its discrete redactions; and (d) finally, on page 10 of that
Decision and Order, the Court alternatively found that, even if those reasons were inadequate,
the relevant PAIMI regulations uses the word “describe”, not “identify. (Id. at 6-7.)
Second, Defendants argue, Plaintiff is not entitled to summary judgment on its claims
under 42 U.S.C. § 1983 for the following reasons: (a) Plaintiff’s Section 1983 claims against
Defendant DOCCS should be dismissed because, without a State’s consent or waiver of the
4
immunity provided under the Eleventh Amendment, a suit against the State or a State agency or
department is proscribed by the Eleventh Amendment, and here Section 1983 claims do not
abrogate the Eleventh Amendment immunity of the states; (b) in any event, States, including the
agencies of those states, are not “persons” within the meaning of Section 1983; and (c) Plaintiff’s

Section 1983 claims against Defendant Martuscello should also be dismissed because, given that
Martuscello is sued in his official capacity only, at best Plaintiff is entitled to prospective
injunctive relief against him if Plaintiff has shown an ongoing violation of federal law seeking
relief properly characterized as prospective (and here there is no ongoing violation of federal law
and anyway New York Law now imposes more stringent requirements upon DOCCS than those
imposed by the PA&A Acts). (Id. at 7-8.)
Third, Plaintiffs are not entitled to declaratory or injunctive relief for the following
reasons: (a) even if general equitable principles permitted issuance of a declaratory judgment
here premised solely upon Defendants’ past conduct, the Eleventh Amendment bars a claim
against Defendants for non-prospective relief (e.g., premised solely upon Defendants’ past

conduct); (b) while a limited exception to Eleventh Amendment immunity exists in the context
of ongoing violations, that exception is not applicable in this case, because Plaintiff does not
claim—and certainly cannot establish – any ongoing violation of law to empower the Court to
issue injunctive or declaratory relief as against Defendants; (c) Defendants have provided
Plaintiff with all disputed documents in compliance with the Court’s Preliminary Injunction
Order; and (d) the matter is moot in that it is impossible for the circumstances that gave rise to it
to recur, because of the intervening change in law in New York State (on March 26, 2022),
which governs future access to records as between DOCCS and Plaintiff. (Id. at 11-14.)
3. Plaintiff’s Reply Memorandum of Law
5
Generally, it its reply memorandum of law, Plaintiff asserts three arguments. (Dkt. No.
90.) First, Plaintiff argues, its claims are not moot for the following reasons: (a) DOCCS has
not abandoned its redaction policy but has continued to redacting records in violation of the P&A
Acts and precedent (including Wise); and (b) despite receiving the Court’s favorable Preliminary

Injunction Order, Plaintiff remains harmed by DOCCS’ refusal to abandon its redaction policy,
because the withholding of witness names prevents Plaintiff from investigating an allegation of
abuse and/or neglect. (Id. at 3-5.)
Second, Plaintiff argues, it is entitled to relief under the Eleventh Amendment and 42
U.S.C. § 1983, because (a) prospective injunctive relief is appropriate against a state actor in
instances when past behaviors are likely to continue, to the detriment of Plaintiff, (b) DOCCS’
unwillingness to produce the unredacted OSI records of Individual C constitutes an ongoing
violation of law, and (c) Plaintiff also requests permanent prospective injunctive relief enjoining
DOCCS from withholding copies of requested records due to a public health emergency or
pandemic and requiring DOCCS to produce the records timely as required by the P&A Act. (Id.

at 5-8.)
Third, Plaintiff argues, New York State’s P&A Records Access Law does not moot
Plaintiff’s right to access records under the federal P&A Acts, because (a) while the state law
provides Plaintiff access to records, it does not negate its right to access records under the P&A
Acts, (b) furthermore, the NYS P&A Records Access law does not permit redaction of records to
the P&A system. (Id. at 8-9.)
B. Defendants’ Motion for Summary Judgment
1. Defendants’ Opening Memorandum of Law
Generally, in support of their motion, Defendants asserts three arguments. (Dkt. No. 83,
6
Attach. 9.) First, Defendants argue, this matter is moot in that Plaintiff received all of the relief
it requested or to which it could be entitled (including on its injunctive relief claims and
declaratory judgment claims), because of (a) the Court’s Decision and Order of February 17,
2022, granting Plaintiff’s motion for a preliminary injunction, (b) DOCCS’ subsequent

production of records and documents in this matter, and (c) the Court’s Decision and Order of
January 17, 2024, denying Plaintiff’s motion for contempt (Id. at 8-9.)
Second, Defendants argue, alternatively, this matter is moot because (a) DOCCS’ future
responses to Plaintiff’s requests for records are governed by an intervening change of controlling
law (specifically, P&A Records Access Law, which became effective on March 26, 2022), and
(b) the New York State law imposes on DOCCS stricter requirements than does the P&A Acts
(by requiring DOCCS to provide copies of records within three business days of the date such
records are requested without any charge for such copies, requiring the provision of records
within 24 hours under certain circumstances, and requiring the provision of records in electronic
form where such records are so maintained by DOCCS). (Id. at 9-11.)

Third, Defendants argue, at the very least, they are entitled to summary judgment on
Plaintiff’s declaratory judgment claim against the State because (a) that claim seeks retrospective
relief only, and (b) the Eleventh Amendment bars a claim against the State for non-prospective
relief. (Id. at 12-14.)
2. Plaintiff’s Opposition Memorandum of Law
Generally, in its opposition memorandum of law, Plaintiff asserts three arguments. (Dkt.
No. 88.) First, Plaintiff argues, its P&A claims are not moot for the following reasons: (a)
DOCCS has not abandoned its redaction policy, because it has continued to redacting records in
violation of the P&A Acts and precedent (including Wise); and (b) Plaintiff remains harmed by
7
DOCCS’ refusal to abandon its redaction policy, because the withholding of witness names
prevents Plaintiff from investigating an allegation of abuse and/or neglect. (Id. at 4-6.)
Second, Plaintiff argues, the New York State P&A Records Access Law does not moot
Plaintiff’s right to access records under the federal P&A Acts, because (a) while the state law

provides Plaintiff access to records, it does not negate its right to access records under the P&A
Acts, (b) furthermore, the NYS P&A Records Access law does not permit redaction of records to
the P&A system. (Id. at 6-7.)
Third, Plaintiff argues, it is entitled to a permanent injunction, because (a) the Court has
previously advised the parties that its preliminary injunction order did not require DOCCS to
disclose the unredacted records in question, (b) without an order from this Court that states that
the redactions in question violate the P&A Acts, DOCCS will continue to engage in its redaction
policy, forcing DRNY to continue to litigate the matter, and (c) without a permanent injunction,
DOCCS will again withhold or delay access to copies of requested records if there is another
public health emergency or pandemic. (Id. at 7-10.)

3. Defendants’ Reply Memorandum of Law
Generally, in their reply memorandum of law, Defendants assert three arguments. (Dkt.
No. 91.) First, Defendants argue, they did not violate the P&A Acts by redacting the name and
DIN of a third-party confidential OSI witness for the following reasons: (a) in its Decision and
Order of January 17, 2024 (denying Plaintiff’s motion for contempt), the Court found that “to the
extent that Plaintiff demands a ruling as a matter of law that the P&A Acts require a blanket
disclosure of the names and DINs of non-client confidential OSI witnesses in a prison, Plaintiff
has shown no cause for such a ruling,” that the Court did not intend its preliminary injunction to
require the disclosure of the redacted information in question, and that “Defendants articulated
8
and offered admissible record evidence of three reasons for the discrete redactions in question”;
and (b) Defendants attempted to negotiate a consent stipulation with Plaintiff to resolve this
discrete issue, but Plaintiff’s refused to negotiate in good faith. (Id. at 3-4.)
Second, Defendants argue, Plaintiff’s claims are moot because, as previously argued, the

New York State law imposes on DOCCS stricter requirements than does the P&A Acts (by
requiring DOCCS to provide copies of records within three business days of the date such
records are requested without any charge for such copies, requiring the provision of records
within 24 hours under certain circumstances, and requiring the provision of records in electronic
form where such records are so maintained by DOCCS). (Id. at 4-6.)
Third, Defendants argue, Plaintiff is not entitled to a permanent injunction, because any
injunctive relief a court could order in this circumstance would be, effectively, no more than an
“obey-the-law” injunction, which would be patently inappropriate. (Id. at 6.)
II. PARTIES’ STATEMENTS OF UNDISPUTED MATERIAL FACTS
A. Plaintiff’s Rule 56.1 Statement of Undisputed Material Facts

Protection and Advocacy System
1. In 2000, Congress enacted the Developmental Disabilities Assistance and Bill of
Rights Act (“DD Act”). 42 U.S.C. §§ 15001-15083.
2. A state that receives federal funds under the DD Act must establish a Protection
and Advocacy (“P&A”) System for persons with disabilities.
3. In 1986, Congress enacted the Protection and Advocacy for Individuals with
Mental Illness Act (“PAIMI Act”). 42 U.S.C. §§ 10801-10827.
4. A state that receives federal funds under the PAIMI Act must establish a P&A
System for individuals with mental illness.
9
5. The United States Department of Health and Human Services has promulgated
regulations interpreting the DD and PAIMI Acts and governing activities carried out by P&A
Systems, including P&A systems’ access to records. 42 C.F.R. § 51.41; 45 C.F.R. § 1386.25.
Plaintiff

6. The State of New York has established a P&A System.
7. Disability Advocates, Inc., is an independent non-profit corporation organized
under the laws of the State of New York. It does business and has sued under the name Disability
Rights New York.
8. At all times relevant to this action, DRNY has been and is the statewide P&A
system designated by the Governor of the State of New York to protect and advocate for the
legal and civil rights of people with disabilities in the State of New York.
Defendants
9. Defendant Anthony J. Annucci was the Acting Commissioner of the New York
State Department of Corrections and Community Supervision (“DOCCS”). Daniel F.

Martuscello III assumed oversight of the Department as Acting Commissioner on June 9, 2023,
and was confirmed as the Commissioner on May 23, 2024.
10. DOCCS is an agency within the New York State Executive Department.
11. DOCCS is the state agency charged with operating correctional facilities,
including housing inmates with disabilities (although incarcerated individuals with
mental/psychological disabilities may also be housed by the Office of Mental Health).
DRNY’s Requests for Records from DOCCS Regarding Individual A
12. DRNY received a request for legal assistance from Individual A (“A”), an
individual with a physical disability in Defendants’ custody.
10
13. On January 4, 2021, DRNY submitted a P&A records request with A’s
authorization to Defendants via email for copies of A’s records.
14. On January 7, 2022, DOCCS’ Acting Deputy Commissioner and Counsel, Ms.
Cathy Y. Sheehan, responded to the records request in a letter sent via email.

15. Ms. Sheehan’s letter stated that due to COVID-19 pandemic “visitation to
facilities statewide have been temporarily suspended” and that Defendants “will resume the
previous practice of your office obtaining documents through in person review of marking the
pages to be copied at the time of inspection when it is safe to do so.”
16. On January 7, 2021, DRNY replied to Ms. Sheehan via email stating that DRNY
was seeking copies of the records specified in the request letter and was not seeking physical
access to the records.
17. DOCCS provided DRNY with copies of the requested records of A on March 25,
2022, after a preliminary injunction was ordered by this Court.
DRNY’s Requests for Records from DOCCS Regarding Individual B

18. DRNY received a request for legal assistance from Individual B (“B”), an
individual with a developmental disability in Defendants’ custody.
19. On January 7, 2021, DRNY submitted a P&A records request with B’s
authorization to Defendants via email for copies of B’s records.
20. On January 12, 2021, DOCCS’ Acting Deputy Commissioner and Counsel, Ms.
Cathy Y. Sheehan, responded to the records request in a letter sent via email.
21. Ms. Sheehan’s letter stated that due to COVID-19 pandemic “visitation to
facilities statewide have been temporarily suspended” and that Defendants “will resume the
previous practice of your office obtaining documents through in person review of marking the
11
pages to be copied at the time of inspection when it is safe to do so.”
22. On January 27, 2021, DRNY emailed Defendants stating again that physical
access to the records was not being sought.
23. On June 21, 2021, DRNY sent another letter to the Defendants regarding the

requested copies of B’s records.
24. DOCCS provided DRNY with copies of the requested records on March 25, 2022,
after a preliminary injunction was ordered by this Court.
DRNY’s Requests for Records from DOCCS Regarding Individual C
25. DRNY received a request for legal assistance from Individual C (“C”), an
individual with a mental illness in Defendants’ custody.
26. On January 11, 2021, DRNY submitted a P&A records request with C’s
authorization to Defendants via email for copies of C’s records.
27. On January 14, 2021, DOCCS’ Acting Deputy Commissioner and Counsel, Ms.
Cathy Y. Sheehan, responded to the records request in a letter sent via email.

28. Ms. Sheehan’s letter stated that due to COVID-19 pandemic “visitation to
facilities statewide have been temporarily suspended” and that Defendants “will resume the
previous practice of your office obtaining documents through in person review of marking the
pages to be copied at the time of inspection when it is safe to do so.”
29. On January 27, 2021, DRNY emailed Defendants stating that physical access to
the records was not being sought.
30. On June 21, 2021, DRNY sent another letter to Defendants regarding the
requested copies of C’s records.
31. DOCCS provided DRNY with copies of the requested records on March 25, April
12
15, and May 17, 2022, after a preliminary injunction was ordered by this Court.
32. The records provided on May 17, 2022, contained the redaction of the name and
DIN number of one confidential third-party DOCCS Office of Special Investigation (“OSI”)
witness.2

33. Pursuant to this Court’s suggestion, the parties attempted to negotiate an
agreement as the OSI records but were unable to reach one.
34. DOCCS continues to deny access to the unredacted records of Individual C.
B. Defendants’ Rule 56.1 Statement of Undisputed Material Facts
Plaintiff’s Requests and DOCCS’ Responses
1. Plaintiff Disability Rights New York (“DRNY”) filed the current case on June 28,
2021, challenging DOCCS’s provision of records related to three incarcerated persons, referred
to here as Individual A, Individual B, and Individual C.
2. DRNY requested record access with respect to Individual A by correspondence
transmitted to DOCCS via email on January 4, 2021 (the Individual A Request).

3. Before DOCCS received the Individual A Request, DOCCS’s practice upon
receiving records requests from DRNY had been (at least for some period of time) to send
correspondence to DRNY providing information as to when the records would be available for
DRNY to access at a DOCCS facility.3

2 (Dkt. No. 33, at 1 [Plf.’s Letter-Motion for a Court Conference]; Dkt. No. 42, at 2;
compare Dkt. No. 39, Attach. 3, at 2 [attaching email from defense counsel characterizing the
“single area of disagreement between the parties” as relating to “a single redaction of personal
identifying information of non-client third parties . . .”] [emphasis in original] with Dkt. No. 83,
Attach. 1, at ¶ 22 [Shkolnick Decl., stating that “the May 17, 2022 production contained one
redaction of a confidential third party OSI witness’ name and DIN number”].)

3 In its partial denial to the above-stated fact, Plaintiff points to record evidence that, when
13
4. Due to the continuing COVID-19 pandemic in January 2021, DOCCS was not
then permitting in-person access to its facilities.4
5. Accordingly, on January 7, 2021, Cathy Y. Sheehan, then DOCCS Acting Deputy
Commissioner and Counsel, responded to the Individual A Request by letter transmitted via

email.
6. Ms. Sheehan’s January 7, 2021 letter stated that, “as a result of the significant
increase in COVID-19 infections, visitations to facilities are temporarily suspended statewide. . .
. [W]e will resume the previous practice of your office obtaining copies of documents through in
person review of marking the pages to be copied at the time of inspection when it is safe to do
so.”
7. In response to DOCCS’s January 7, 2021 correspondence, DRNY counsel
emailed DOCCS and stated that, contrary to prior practice, it was not requesting physical access
to records but instead was seeking copies of those records.
8. Consistent with its understanding that the P&A Acts did not contemplate written

demands for documents, DOCCS did not provide copies of records for Individual A at that time.
9. DRNY requested access to records on behalf of Individual B by correspondence

it litigated a similar matter in 2018, DOCCS’ practice had been to respond to Plaintiff’s P&A
requests for copies of records by providing copies of the requested records, without requiring
Plaintiff to first physically inspect the records before access to copies was provided. (Dkt. No.
88, Attach. 1, at ¶ 3 [citing Paragraphs 21 through 28 of Plaintiff’s Statement of Material Facts in
DRNY v. DOCCS, 1:18-CV-0980 (N.D.N.Y. filed Dec. 14, 2018)].) As a result, the Court has
amended the above-stated fact to add the parenthetical phrase “at least for some period of time.”

4 Although Plaintiff admits merely that “DOCCS advised DRNY [of the above-stated fact]
in its response on January 7, 2021” (Dkt. No. 88, Attach. 1, at ¶ 4), the entire above-stated fact
has been deemed admitted, because it is supported more than by Cathy Y. Sheehan’s letter of
January 7, 2021. (Dkt. No. 83, Attach. 10, at ¶ 4 [Defs.’ Rule 56.1 Statement, citing Dkt. No.
83, Attach. 1, at ¶ 7 (Shkolnik Decl.)].)
14
to DOCCS via email on January 7, 2021 (the Individual B Request).
10. On January 11, 2021, then-Acting Deputy Commissioner and Counsel Sheehan
sent a letter via email containing the same language set forth above with respect to Individual A.
11. For the same reasons detailed in Exhibit C, DRNY counsel took the position that

it was not requesting physical access to records but rather copies of those records.
12. Consistent with its understanding that the P&A Acts did not contemplate written
demands for documents, DOCCS did not provide record copies for Individual B at that time.
13. DRNY requested records on behalf of Individual C by correspondence to DOCCS
via email on January 11, 2021 (the Individual C Request).
14. On January 14, 2021, then Acting Deputy Commissioner and Counsel Sheehan
sent a letter via email containing the same language set forth above with respect to Individual A.
15. For the same reasons detailed in Exhibit C, DRNY counsel took the position that
it was not requesting physical access to records but rather copies of those records.
16. Consistent with its understanding that the P&A Acts did not contemplate written

demands for documents, DOCCS did not provide record copies for Individual C at that time.
Procedural History
17. On June 28, 2021, Plaintiff filed a motion for preliminary injunction in this
matter.
18. On February 17, 2022, this Court granted Plaintiff’s motion for a preliminary
injunction and issued an Order, holding that Defendants were required to provide copies of
documents to Plaintiff, upon written request, and that Plaintiffs were not required first to
physically examine and “flag” such records for copying.

15
19. Following the issuance of the PI Order on February 17, 2022, DOCCS produced
the disputed records to DRNY in several batches, in March and April 2022.
20. On May 17, 2022, the last portion of Defendants’ document production – which
contained OSI records – was provided to Plaintiff via a share link.

21. After Defendants’ counsel discovered that an incorrect link (which included
attorney-client privileged material) had been provided on May 17, 2022, the records were
re-produced to Plaintiff via a new share link on July 11, 2022.
22. Plaintiff disputed one redaction contained in the May 17, 2022 production and, on
September 16, 2022, filed a motion for contempt or for amendment to the PI Order.
23. On January 17, 2024, the Court issued a Decision and Order denying the motion
for contempt or for amendment in its entirety.
The New York Law
24. On February 24, 2022, New York State Governor Kathy Hochul signed into law
Access Bill A8710/S7847 (the New York Law).

25. The New York Law provides that DRNY “shall have prompt access” to: a facility
serving an individual represented by DRNY “that is operated, certified or licensed by any office
or agency of the state”; as well as to “books, records and data” pertaining to such individual, or
to such a facility serving individuals with disabilities.
26. The New York Law also provides that “[c]opies of records shall be provided to
[DRNY] free of charge within three business days of receipt of a written request”, or within 24
hours in certain circumstances, and that “[w]here records are kept or maintained electronically
they shall be provided to [DRNY] electronically . . . .”

16
27. Finally, the approval memorandum for the Bill states that “if [DRNY’s] access is
denied or delayed beyond the three day [sic] deadline in the bill, the facilities will provide
[DRNY] with a written statement of the reasons for the denials or delays within one business day
following the expiration of the deadline.”

28. The New York Law became effective as of March 26, 2022.
29. Since the effective date of the New York Law, DOCCS has followed the
procedures proscribed therein with respect to the provision of documents to DRNY pursuant to
DRNY’s requests (with the possible exception of unredacted records of Individual C), and
intends to continue to do so.5
30. After the Court’s Contempt Denial Order of January 17, 2024, Plaintiff requested
permission to file a second Motion to Compel and for Contempt, which the Court permitted
against its recommendation.
31. The motion was fully submitted on August 20, 2025, and the Court issued a
Decision and Order on September 8, 2025, denying the motion, with the exception of permitting

deposition of Defendants with regard to limited topics relating to safety and security concerns
surrounding Office of Special Investigations records, as well as directing the parties to attempt to
determine if an agreement could be reached regarding a confidentiality agreement as to going
forward matters.
IV. ANALYSIS
A. Plaintiff’s Claims Regarding Individuals A and B

5 In its denial of the above-stated fact, Plaintiff points to record evidence that DOCCS
refuses to provide unredacted records of Individual C, which purportedly violates the New York
Law. (Dkt. No. 88, Attach. 1, at ¶ 29 [citing, inter alia, emails between parties from July
2022].) As a result, the Court has amended the above-stated fact to add the parenthetical phrase
“with the possible exception of unredacted records of Individual C.”
17
After careful consideration, Plaintiff’s motion for summary judgment regarding its claims
against Individual A and B is denied, and Defendants’ motion for summary judgment on those
claims is granted, for each of the numerous alternative reasons stated in Defendants’ memoranda
of law. See, supra, Parts II.A.2., II.B.1. and II.B.2. of this Decision and Order. To those

reasons, the Court adds only two brief points.
First, in rendering these rulings, the Court also relies on, as persuasive authority,
Disability Rights New York v. New York State Office for People With Developmental Disabilities,
23-CV-3883, 2024 WL 2882727, at *4 (E.D.N.Y. June 7, 2024) (granting defendant’s motion to
dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12[b][1] because “[t]his
case is now moot. Defendants have provided the requested documents to Plaintiff” in compliance
with the court’s previously issued preliminary injunction).
Second, the Court notes the dearth of admissible record evidence adduced by Plaintiff to
show that there is a real threat of future noncompliance given either (1) a reasonable expectation
that either a pandemic or other state or national emergency will recur, or (2) a reasonable

expectation that DOCCS would resume delaying timely access to records under the P&A Acts
during that emergency. With regard to this second expectation, the Court notes it is undisputed
that DOCCS complied with the Court’s preliminary injunction regarding Individuals A and B
approximately 36 days of the issuance of the preliminary injunction. See, supra, Paragraphs 17
and 24 of Part II.A., and Paragraphs 18 and 19 of Part II.B., of this Decision and Order.
For all of these reasons, Plaintiff’s claims regarding Individuals A and B are dismissed
without prejudice as moot.
B. Plaintiff’s Claims Regarding Individual C

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The same reasoning as set forth above in Part III.A. of this Decision and Order applies to
the bulk of Plaintiff’s claims regarding Individual C, given that it is undisputed that – except for
the redacted name and DIN number of a confidential third-party OSI inmate witness – DOCCS
complied with the Court’s preliminary injunction regarding Individual C within 90 days of the

issuance of the preliminary injunction. See, supra, Paragraphs 31 and 32 of Part II.A., and
Paragraphs 18, 19, and 22 of Part II.B., of this Decision and Order. As a result, the bulk of
Plaintiff’s claims regarding Individual C dismissed without prejudice as moot
Finally, turning to the redacted name and DIN number of a confidential third-party OSI
inmate witness, the Court finds as follows. Given Plaintiff’s stated intent to “seek to interview
any witness to conduct its investigation” (Dkt. No. 41, at 4-5 [attaching pages “3” and “4” of
Plf.’s Reply Memo. of Law]; see also Dkt. No. 40, at 11 [attaching page “8” Defs.’ Opp’n
Memo. of Law, characterizing Plaintiff’s demand as one “with no advance accounting of how the
information provided will be used”]), and given the admissible evidence offered by DOCCS
Deputy Chief Investigator Shawn Mousseau regarding the need for confidentiality, the Court

must find that Plaintiff does not have a right, under federal law, to access the unredacted name
and DIN number of a confidential third-party OSI inmate witness unrestricted by reasonable
confidentiality conditions on Plaintiff’s interviewing that confidential third-party OSI inmate
witness in accordance with Parts IV.C. and V of DOCCS Directive 0700 (entitled “Office of
Special Investigations (OSI)”).
Here, such reasonable confidentiality restrictions include the following: (a) an agreement
by Plaintiff that it will keep the names, DINs, and witness statements of the inmate witness in
question confidential in accordance with federal and state law; (b) an agreement by Plaintiff that

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it will not contact the inmate witness in question except through OSI; and (c) an agreement by
Plaintiff that it will not contact the inmate witness in question if that witness has declined in
writing to receive a visit from Plaintiff. (See, e.g., Dkt. No. 73, at 21 n.8, and 22 n.9.)
The confidentiality restrictions imposed by DOCCS’ Directive 0700 are restrictions that

Plaintiff must comply with. See 42 C.F.R. § 51.45(a)(1)(iii) (“The P&A system must . . . keep
confidential all records and information . . . pertaining to . . . [i]dentity of individuals who report
incidents of abuse or neglect or furnish information that forms the basis for a determination that
probable cause exists . . . .”); 45 C.F.R. § 1326.28(b)(1)(iii) (“The P&A system must . . . keep
confidential all records and information . . . pertaining to . . . [t]he identity of individuals who
report incidents of abuse or neglect, or who furnish information that forms the basis for a
determination that probable cause exists . . . .”).
Furthermore, this finding is consistent with both Wise (which is distinguishable) and
other case law (which is analogous). See Center For Legal Advocacy v. Earnest, 188 F. Supp.
2d 1251, 1261-63 (D. Colo. 2002) (finding that a state P&A organization is limited in its access

to institutional records by the confidentiality requirements imposed in the regulations to the
Public Health Service Act), order rev'd on other grounds, 320 F.3d 1107, 1109-13 (10th Cir.
2003) (acknowledging the potential conflict between the PHSA's privacy protections and
Congress' intent to empower P & A's in the PAMII Act, but finding that an emergency room did
not qualify as a drug and alcohol treatment program under the PHSA confidentiality regulations).
Simply stated, the requirement of good faith that attaches to Plaintiff’s request for the
name and DIN of a confidential third-party OSI inmate witness under the P&A Acts also extends
to Plaintiff’s attempt to negotiate a reasonable confidentiality agreement with DOCCS regarding

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that information. Cf. Prot. & Advoc. Sys., Inc. v. Freudenthal, 412 F. Supp.2d 1211, 1220-21
(D. Wy. 2006) (“[T]he parties may use the deadlines in the DD Act as a guideline for requests
under the PAIMI Act, but this approach should reflect a good faith analysis of the nature and
extent of the request. A narrow request for a small number of documents should not require the

full three days allowed under the DD Act, while a very broad and time intensive request should
be allowed some leeway.”) (emphasis added).
So far, Plaintiff’s negotiation attempts have lacked good faith. However, Defendants’
request for dismissal is premature, because Plaintiff still possesses a right to the redacted
information in question if it complies with the above-described reasonable confidentiality
restrictions. If it continues to withhold that good faith during its negotiations, however, this
portion of Plaintiff’s remaining claim regarding Individual C must be dismissed without
prejudice for failure to prosecute under Fed. R. Civ. P. 41(b). As a result, the Court will give
Plaintiff one final chance (specifically, 120 days)6 to demonstrate that good faith. After which,
the Court will entertain such dismissal.

ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for summary judgment (Dkt. No. 81) is DENIED;
and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 83) is
GRANTED with regard to all of Plaintiff’s claims EXCEPT his claims regarding Individual C
to the extent that they regard the unredacted name and DIN of a confidential thirty-party OSI

6 See N.D.N.Y. L.R. 42.1(a) (“In the absence of an order by the assigned judge or
magistrate judge setting any date for any pretrial proceeding or for trial, the plaintiff’s failure to
take action for four (4) months shall be presumptive evidence of lack of prosecution. Nothing in
this Rule shall preclude any party from filing a motion to dismiss an action or proceeding for
failure to prosecute under Fed. R. Civ. P. 41(b).”).
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inmate witness, which SURVIVE Defendants’ motion; and it is further
ORDERED that, within ONE HUNDRED AND TWENTY (120) DAYS from the entry
of this Decision and Order, Plaintiff shall SHOW CAUSE in writing why its above-stated
remaining claims regarding Individual C should not be sua sponte DISMISSED without
prejudice for failure to prosecute under Fed. R. Civ. P. 41(b).
Dated: September 10, 2026
Syracuse, New York
Glenn T. Suddaby
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11439136. Public record. Not legal advice.