Current through Register Vol. 45, No. 52, December 27, 2023
(a) Executive Law §
94 provides that proceedings, as well as information and evidence obtained,
relating to the Commission's determination as to whether a substantial basis
exists that there has been a violation of the laws it enforces are confidential
while a matter is pending and unless and until the Commission issues a report,
except that the Commission may authorize the disclosure of such information to
the extent necessary in furtherance of its investigations.
(b) Notwithstanding any other provision of
law, pursuant to Executive Law 94(11) the Commission, by majority vote of the
full Commission in accordance with section 94(4)(h), may disclose to any person
or entity outside the Commission any testimony or information obtained by a
Commissioner or staff upon a determination that such disclosure is in the
public interest as set forth below. Disclosure so authorized may be by full
public release or to designated persons or entities as directed by the
Commission. The Commission may further direct that disclosure to designated
persons or entities be conditioned upon the recipient's agreement to maintain
confidentiality and to limit further dissemination.
(c) In determining whether release or
disclosure of information relating to a matter is in the public interest, the
Commission may consider any one or more of the following criteria:
(1) Whether the Complainant, Victim, Subject
or Respondent has made public statements relating to an allegation submitted to
the Commission;
(2) Whether the
Complaint itself or the allegations therein have been publicly disclosed by the
Complainant, Victim, or others;
(3)
Whether the identity of the Complainant or Victim is a matter of public
knowledge;
(4) Whether the fact of
the Commission's inquiry or investigation is public knowledge;
(5) Whether the matter, in the judgment of or
as determined by the Commission, is, or involves facts or issues that are, of
significant public concern;
(6)
Whether disclosure relating to the matter will address public safety
concerns;
(7) Whether there are
public calls for an investigation;
(8) Whether there is a need for public
assurance that the Commission is or has considered the matter;
(9) Whether there have been any inaccurate or
misleading statements made publicly about the Commission's action or inaction
with respect to the matter;
(10)
Whether the allegation is an attempt to utilize the Commission for partisan
political or electoral gain;
(11)
Whether there is pending civil litigation that is related, directly or
indirectly, to the allegations, and if so, whether the information will be used
to impact the litigation in a manner that is relevant to the proceedings or
appears to be aimed at harassment of a party;
(12) Whether a prosecutor has asked the
Commission to defer action, and if so, whether in the view of the requesting
prosecutor disclosure would adversely affect the criminal action;
(13) Whether there are alleged victims who
have a particular interest in the proceeding;
(14) Whether the Commission's ability to
proceed is inhibited because of a lack of jurisdiction over the Subject or
conduct; and
(15) Any other factor
the Commission deems relevant to determining whether the release of such
information is in, or would otherwise serve, the public
interest.
(d) In
accordance with this section, the Commission has also delegated to staff the
authority to consider the criteria in subdivision (c) of this section, and upon
a determination that disclosure is in the public interest, staff shall:
(1) Publicly acknowledge receipt of a
complaint. However, the complaint itself, including the identity of the
Complainant or Victim, if not public, shall not be made public absent a vote of
the Commission;
(2) Publicly
acknowledge that a matter is "pending before the Commission" until such time as
the matter has been closed for any reason;
(3) Publicly acknowledge that a matter is "no
longer pending before the Commission" after the matter has been closed for any
reason; and
(4) Publicly
acknowledge if the Commission has received a request from law enforcement to
defer the Commission's inquiry, and whether such deferral is in
place.
(e) Pursuant to
this section, the Commission has determined that it is in the public interest
to publicly release information relating to investigative and enforcement
matters as follows:
(1) its annual report, in
accordance with the requirements in Executive Law § 94(12), shall include:
(i) a listing by assigned number of each
complaint and referral received which alleged a possible violation within the
Commission's jurisdiction, including the current status of each complaint;
and
(ii) where a matter has been
resolved, the date and nature of the disposition and any sanction imposed, with
redactions, as necessary, to protect the identity of the Subject, Respondent,
Victim, and Complainant as required under the confidentiality requirements in
Executive Law § 94.
(2)
its website shall include, within sixty days of resolution or closure of a
matter for any reason other than issuance of a substantial basis investigation
report or settlement, a listing by assigned case number, setting forth the
nature of the matter, the alleged violation of law, and the date and nature of
the disposition, with redactions, as necessary, to protect the identity of the
Subject, Respondent, Victim, and Complainant under the confidentiality
requirements in Executive Law § 94 and in accordance with these
regulations.
(3) Information
relating to an investigation or enforcement proceeding that would otherwise be
confidential pursuant to Executive Law § 94, when a legal proceeding is
initiated in court by the Subject or Respondent of such investigation, as
deemed necessary by counsel representing the Commission in furtherance of its
interests in such legal proceeding. With respect to other legal proceedings,
the Commission may release such information by majority vote of the full
Commission, in accordance with Executive Law section 94(4)(h), that such
disclosure is in the public interest considering the criteria set forth in
subdivision (c) of this section.
Amended
New
York State Register December 21, 2016/Volume XXXVIII, Issue 51,
eff. 12/21/2016
Amended
New
York State Register June 6, 2018/Volume XL, Issue 23, eff.
6/6/2018
Amended
New
York State Register July 19, 2023/Volume XLV, Issue 29, eff.
7/19/2023
