Current through Register Vol. 46, No. 12, March 20, 2024
(a) Records, files,
or information identifying youth who are or have been under the care or
supervision of the Office of Children and Family Services (OCFS) may not be
disclosed in whole or part to any person, agency or institution, other than
OCFS and New York State family courts, with the following exceptions:
(1) Records or pertinent parts thereof must
be disclosed pursuant to Supreme Court order as authorized by Social Services
Law section
372.
(2) Educational records may be disclosed in
accordance with the provisions of and any regulations promulgated pursuant to
the Family Educational Rights and Privacy Act and the New York State Education
Law.
(3) Medical records, including
mental health records, may be disclosed consistent with the provisions of and
any regulations promulgated pursuant to the Health Insurance Portability and
Accountability Act and the New York State Public Health Law.
(4) Records, or summaries of records, may be
disclosed to a probation department on written request for use in accord with
Family Court Act sections 166, 351.1, and 783, or Criminal Procedure Law
sections
390.20 and
720.20.
(5) Nothing in this section shall be deemed
to prevent access by a youth's parent or legal guardian to records of such
youth where access is otherwise specifically authorized by law.
(6) Information concerning a youth's date of
admission, release, revocation of release, and discharge only may be disclosed
to a New York social services district or State or Federal agency on written
request, when such information is necessary to enable said district or agency
to determine that the youth is under its jurisdiction, thereby enabling it to
provide for a youth's welfare and the necessities of life.
(7) Records pertaining to the vital
statistics of youth may be disclosed to law enforcement authorities when a
youth is absent from an OCFS placement without proper authorization or has
violated a condition of release.
(8) Records may be made available to
authorized child welfare agencies, within and without the State, which have
actual custody of a youth previously or currently in OCFS custody and request
specific information in writing for the purpose of developing a program or
providing services to the youth. When the request is made by an out-of-state
child welfare agency, OCFS shall request written confirmation, from the
juvenile compact administrator for the state in which the requesting agency is
located, that the agency is authorized to provide services or programs to youth
within that state and is in good standing. No record shall be made available
until such confirmation is received by OCFS in writing.
(9) OCFS records shall be made available to
the Office of the Attorney General in furtherance of the duties of that
office.
(10) Records pertaining to
youth referred to OCFS as a condition of probation shall be made available to
the referring court or the relevant probation department upon written request
made during the period of referral.
(11) Requests for information from law
enforcement authorities.
(i) For purposes of
this paragraph, law enforcement authorities shall mean representatives of
federal, New York State, or local law enforcement agencies conducting a
criminal investigation and United State attorneys, district attorneys, or
presentment agencies conducting a criminal investigation or
prosecution.
(ii) Upon a written
request stating that such information is necessary to conduct a criminal
investigation or prosecution of an act committed by a youth in OCFS custody,
law enforcement authorities shall be provided with information regarding the
dates and location(s) of the youth's placement with OCFS. OCFS shall also
provide the requesting agency with the relevant incident reports, other
appropriate documents, and video determined by OCFS to contain potential
evidence of the act.
(iii) If law
enforcement authorities are called to an OCFS location in connection with a
report made to such authority of a crime committed by a youth at the location,
OCFS may provide such law enforcement authorities, upon request, with
information regarding the dates and loca-tion(s) of the youth's placement with
OCFS. If readily available at the time requested, law enforcement may be
provided with relevant incident reports, other appropriate documents, and video
determined by OCFS to contain potential evidence of the alleged criminal
act.
(iv) If law enforcement
authorities arrive at an OCFS location seeking information concerning the
location of a youth currently or previously in OCFS custody in furtherance of a
criminal investigation, OCFS may provide information regarding the dates and
location(s) of the youth's placement with OCFS, and the last known community
location of a youth in a day placement program or conditionally
released.
(v) Prior to providing
any information pursuant to subparagraphs (iii) or (iv) of this paragraph, the
OCFS administrator on duty or ranking office staff person shall:
(a) visually inspect the badge/photo
identification of the law enforcement authority representative(s);
and
(b) on an OCFS form, document
each representative's full name, law enforcement agency, badge/identification
number, work address and phone number.
(vi) Prior to providing any information
pursuant to this paragraph, the OCFS administrator on duty or ranking office
staff person shall contact:
(a) the Division
of Legal Affairs or, if after hours, the administrator on call who will make
contact with the Division of Legal Affairs; and
(b) the Office of the Ombudsman to give
notice of the request.
(vi) Only the information and materials
described in this paragraph that are specifically requested by law enforcement
authorities may be provided. All information and materials provided to law
enforcement must be appropriately redacted by OCFS to prevent disclosure of
information prohibited by statute or regulation from being disclosed, as well
as the confidentiality of youth not involved in the alleged criminal act. The
administrator on duty or ranking office staff member must identify each item
provided to law enforcement authorities on an OCFS form. Only copies of records
shall be provided, unless there is a court order to provide the original(s). If
original materials are provided pursuant to a court order, this will be noted
on the OCFS form and a copy will be retained by OCFS.
(12) Records relevant to the provision of
services to a youth in OCFS custody by a non-employee of OCFS may be released
with the written consent of the youth's parent or guardian or, if the youth is
over the age of 18 at the time of the request, the youth's consent.
(b) When requests for records or
other information concerning a youth is received by any agent of OCFS, and when
such information is not included in the exceptions listed in subdivision (a) of
this section, the correct response shall be: "OCFS is not authorized by law to
disclose whether or not any individual was ever under its
jurisdiction."
(c) No part of this
section shall be construed to prohibit the free exchange of information within
OCFS, or between OCFS and New York State family courts, when the best interest
and treatment of the youth is at issue.
(d) Youth records may be disclosed for
purposes of a bona fide research study, with the approval of the Commissioner
of OCFS, except that the name of and other identifying information of youth
shall not be disclosed to the study group. All such researchers shall sign a
confidentiality agreement before approval for such study shall be
granted.
(e) When any youth who has
been under the care of OCFS reaches the age of 25 or has been out of the care
of OCFS for 10 years, whichever is longer, all records possessed by OCFS shall
be destroyed, unless required by law to be further retained, and shall not made
available to any person unless pursuant to an order by the Supreme Court of the
State of New York, except such records may be made available to the Office of
the Attorney General of the State of New York in furtherance of the duties of
that office.
