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In re Nassau County Strip Search Cases

United States District Court, E.D. New York

July 26, 2017


          For Plaintiffs Herbst Law PLLC By: Robert L. Herbst, Esq.

          For Defendants Nassau County Attorney's Office Carnell T. Foskey County Attorney By: Liora M. Ben-Sorek, Esq. Robert F. Van der Waag, Esq.

          For Proposed Intervenors New York State Office of Temporary and Family Disability Assistance, Office of Children and Family Services and Department of Health Eric T. Schneiderman Attorney General, By: Barbara D. Underwood, Solicitor General Steven C. Wu, Deputy Solicitor General Matthew w. Grieco, Assistant Solicitor General

          For Proposed Intervenors United States Departments of Agriculture and Health and Human Services Bridget M. Rohde Acting United States Attorney By: Mary M. Dickman, AUSA


          Denis R. Hurley United States District Judge

         The purpose of this Memorandum is to address the motions of (1) Proposed Intervenors New York State Offices of Temporary and Family Disability Assistance (“OTDA”), Office of Children and Family Services (“OCFS”) and Department of Health (“DOH”) (collectively “NYS Intervenors”) and (2) Proposed Intervenors United States Departments of Agriculture (“USDA”) and Health and Human Services (“HHS”) (collectively “USA Intervenors”) to intervene in this action and for an order vacating the Court's Order of April 10, 2017 (the “April Order”)[1] insofar as it directs Nassau County Plaintiffs requested access to this information so that the computerized list of class members can be updated in an effort to locate class members and provide them with the monetary relief to which they are entitled under the judgment entered in this action on April 10, 2014.[2]


         By way of background, the April Order addressed an application by the plaintiff class for the County “to grant access to the electronic database maintained by or available to its Department of Social Services [“NCDSS”] for the purpose of cross-matching it with the electronic database of class members to uncover updated contact information for those class members.” April Order at 1. That application was originally opposed by the County on the grounds that “access to New York State's electronic database known as the Welfare Management System (“WMS”) was granted to NCDSS for the limited purpose of implementing various federal and state social services assistance programs and it has no authority to use WMS for any other purpose or to grant access to any unauthorized third party, including plaintiffs and to do so would be a violation of federal and state law.” Id. at 4 (internal quotation marks omitted). Affidavits from the Deputy Counsel to the Office of Temporary and Disability Assistance (“OTDA”), the Deputy Assistant Counsel with the New York State Office of Children and Family Services (successor to the New York State Department of Social Services) and the Director of the Bureau of Health Insurance Programs within the Division of Legal Affairs of the New York State Department of Health were submitted in support of the County's position. Neither New York State nor any of the cited agencies sought to intervene in this matter. After considering the positions of the parties, the Court directed the County in the April Order to “run the names of said class members [i.e. those who had not yet filed claims] and their contact information through WMS for updated addresses and provide to the Claims Administrator any updated addresses garnered from WMS and from [Nassau County Corrections Center] records at the same time.” No deadline for compliance was set.

         Thereafter, the Court received an application from the County for a conference. According to that application, a copy of the April Order was sent to both the County's Department of Social Services and the Deputy General Counsel for the OTDA, which agencies were advised that the County would be complying with the Order. “In response, the State raised a number of questions regarding the manner in which the search was conducted and noted various objections.” DE 519 at 2. Despite several communications and conversations, the State has “yet to withdraw their objections” and rejected a suggestion that “the State social services agencies conduct the requisite search to satisfy any concerns about the methodology of the search, or in the alternative, that they intervene in this action and address their concerns about the breadth of the Court's Order” “on the basis that State is not a party to this action.” Id. In addition, an e-mail from the USDA Food & Nutrition Service which states that its “National Office has determined that Nassau County Social Services cannot legally release this PII [personal identification information] of SNAP recipients” was forwarded to the County; an “offer to re-run the records search without any SNAP information” was “rejected by the State.” Id. In an Order dated May 2, 2017 (the “May Order”), the Court denied the request for a conference “[a]s neither New York State nor the USDA is before this Court, the Court cannot compel their attendance.” May Order at 2-3. The Court went on to state that “[s]hould either New York State or the USDA wish to be heard on this matter, the appropriate course would be for them to move to intervene in the action, which motion, if made, should include the nature of their interest, as well as their specific objections, and concomitant legal arguments, to the April Order.” The present motions followed.


         I. Applicable Standard - Motion to Intervene

         Intervention in a civil action is governed by Rule 24 of the Federal Rules of Civil Procedure. Intervention as of right is appropriate when the party seeking to intervene “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a). Permissive intervention by a government agency or officer may be permitted “if a party's claim or defense is based on . . . any regulation, order, requirement, or agreement issued or made under [a] statute or executive order administered by the officer or agency.” Fed.R.Civ.P. 24(b)(B). The party seeking to intervene “bears the burden of demonstrating that it meets all the requirements for intervention.” Mehedi v. Memry Corp., 2017 WL 2873224, * 4 (D. Conn. July 5, 2017). “In considering a motion to intervene, the court must accept as true the non-conclusory allegations of the motion . . . .” Id. (internal quotation marks omitted).

         II. The Motions to Intervene Are Granted

         Here, both the USA Intervenors and the State Intervenors claim an interest in the property at issue in the present dispute - the WMS database - by virtue of statutes and regulations governing the disclosure of the information relating to various social service assistance programs contained on that database.[3] Specifically, the USA Intervenors assert that “USDA and HHS have an interest in the property at issue, viz. the PII contained in the WMS database that Congress, by statute has required that they protect.” DE 533-1 at p. 6 (citing 7 U.S.C. § 2020(e)(8)(A)-(D); 42 U.S.C. § 1396a(a)(7)(A); 7 C.F.R. 272.1, 42 C.F.R. 431.301). Thus, it asserts that it is entitled to intervene as of right. However, proposed intervenors do not address whether Nassau County, as an existing party, adequately represents that interest, a required part of the intervention as of right analysis. The Court need not address the issue because, as discussed below, it finds permissive intervention is proper.

         Here, Nassau County opposed release of the PII on the WMS database as violative of both state and federal statutes governing the social service assistance programs' information contained in the WMS database. These programs are administered by the proposed intervenors. Permissive intervention by the Federal and State Intervenors is therefore appropriate and said portions of the present motions are granted.

         The Court will now address that portion of the Intervenors' motions which address the propriety of the disclosure ordered in the Court's April Order, beginning with the USA Intervenors' arguments.

         III. Disclosure Under the Federal Statutes

         The WMS database contains information relating to two federal programs - the Supplemental Nutrition Assistance Program (“SNAP”), which is overseen by the USDA, and Medicaid, which is overseen by HHS.


         SNAP provides eligible households with an allotment to purchase food pursuant to the Food and Nutrition Assistance Act (“FNA”). 7 U.S.C. § 2013(a). States that participate in SNAP must provide a plan of operation for approval to an agency of the USDA and are required to administer the program in compliance with the FNA and regulations promulgated thereunder. 7 U.S.C. 2020(a)(3), (d), (e); 7 C.F.R. 272.2(a)-(d).

         Under the FNA, a state plan of operation “shall provide, ” among other things:

safeguards which prohibit the use or disclosure of information obtained from applicant ...

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