Current through Register Vol. 46, No. 12, March 20, 2024
(a)
General. Case records shall be accessible, in whole or in part, only by those
authorized by law, court order and/or the Division of Probation and
Correctional Alternatives (DPCA). DPCA has access to all case records and
probation departments shall provide copies of any case records to DPCA upon
request.
(b) The contents of the
case record shall include information and/or documents of:
(1) Intake services, where
applicable.
(2) Pretrial services,
where applicable.
(3)
Pre-dispositional services, where applicable.
(4) Voluntary assessment and case planning
services, where applicable.
(5)
Arrest, complaint, appearance ticket, and any other legal information and/or
documents obtained or generated.
(6) Any probation investigation and report
and related in formation and/or documents.
(7) All probation supervision-related
information and/ or documents, including order and conditions, risk and needs
assessment(s), applicable interstate/intrastate transfer records, case
plan.
(8) Any victim impact
statement and information, where available.
(9) All correspondence received relating to
or associated with the case.
(c) Discretionary sharing of case record
information.
(1) Public agencies outside this
State. A probation director, or his/her designee, may disclose any information
in its file as to an adult probationer, including youthful offender
information, to any probation, parole, or public institutional agency outside
this State, upon official written request. Any release of information shall be
conditioned upon the agreement of the receiving agency to retain it under the
same conditions of confidentiality as apply to the probation department that
made it available. Public institutional agency shall mean any governmental
entity which has the legal authority to detain and/or obtain custody over an
individual charged or previously convicted of a criminal offense or adjudicated
a youthful offender, or which has the responsibility to make a legal
determination with respect to sex offender registration and/or DNA
compliance.
(2) A probation
director, or his/her designee, may disclose relevant case record information,
other than the pre-plea/pre-sentence/pre-dispositional report, not otherwise
sealed or specifically restricted in terms of access by State or Federal law,
from its files concerning any adult offender (other than a youthful offender)
or fingerprintable juvenile delinquent currently or previously under probation
supervision or formerly under local conditional release supervision, to
appropriate law enforcement authorities, school authorities, child protective
services, public and/or treatment agencies, the judiciary, and
victim(s)/victim(s) family member(s), for public safety and/or case management
purposes, including, but not limited to the following:
(i) national and homeland security;
(ii) criminal investigations and/or execution
of warrants;
(iii) sex offender
registration and/or DNA compliance;
(iv) victim safety, including matters
pertaining to domestic violence, child protection, and sexual
offense;
(v) National Instant
Criminal Background Check System (NICS)/weapons permits;
(vi) military eligibility;
(vii) professional
licensing/certification;
(viii)
monitoring of conditions of probation or conditional release;
(ix) risks and needs assessment;
(x) treatment or counseling services to a
licensed or certified provider; and
(xi) probation or conditional release
investigations.
In all such instances, those to whom access has been
granted shall not secondarily redisclose such information without the express
written permission of the probation director, or his/her designee, who
authorized access.
(3) Potential or existing employee/volunteer.
A probation director or his/her designee may disclose to an existing or
potential employer that an individual who is or may become an employee or a
volunteer has been convicted of a crime or adjudicated a juvenile delinquent
for a fingerprintable offense, the nature thereof, the terms and conditions of
his/her release, and compliance under supervision, unless the records are
otherwise sealed or restricted by Federal or State law. In all such instances,
those to whom access has been granted shall not secondarily redisclose such
information without the express written permission of the probation director or
his/her designee who authorized access.
(4) Public information. A probation director,
or his/her designee, may disclose relevant case record information (not
including the Division of Criminal Justice Services criminal history record or
any portion thereof) relative to an adult probationer (other than a youthful
offender) or former conditional releasee, not otherwise sealed or restricted by
State or Federal law, for the purpose of apprehending a wanted person in
connection with a crime, a violation of probation or conditional release, a
probation or conditional release warrant, a violation of an order of
protection, or in response to an incident wherein the department's, or any
individual under probation supervision actions, are the subject of a media or
news story. A probation director or his/her designee may disclose the name,
gender, race, date of birth/age, height, weight, eye color, hair color,
conviction offense, probation term, warrant/absconder status, and photograph of
an adult probationer (other than a youthful offender).
(5) Research. Case records may be accessible,
in whole or in part, for bona fide research conducted by a governmental entity
or educational institution, where the probation director, or his/her designee,
has made a bona fide research determination and approved of the research
project. In such instance, the probation director, or his/her designee, shall
enter into a written agreement as to terms and conditions of the research, and
keep a log of any research project, its purpose, and dates of research
conducted and/or completed. The following confidentiality safeguards shall be
observed:
(i) coding is required to ensure
that any youth or adult receiving, or previously having received, probation
services are not identified by name;
(ii) access is restricted to only those
involved in the research whose responsibilities cannot be accomplished without
such access and to secure written confidentiality agreements from any research
project staff to adhere to all terms and conditions of the research, including
confidentiality provisions herein stated;
(iii) researchers are not permitted to copy
any case records in any manner with identifying information and each probation
director shall take such precautionary departmental security measures to
guarantee compliance;
(iv) that any
project records copied shall be maintained in secure locked files;
(v) to retain any data received or copied
only so long as necessary to effectuate the purposes of the research project
and to return or destroy the data in such a way as to prevent their
unauthorized use;
(vi) to guarantee
that research performed or information accessed will not result in adverse
action against the subject of the research;
(vii) the probation department has advance
access to any preliminary findings and/or draft report prior to finalization,
publication, or distribution and to furnish the probation director with any
final project report or findings in a timely manner; and
(viii) no assignment of research shall occur
without the written consent of the probation director or his/her designee.
The probation director, or his/her designee, shall promptly
provide the State Director of Probation and Correctional Alternatives with a
copy of the final project report from any bona fide research project for which
a written agreement is entered into.
(6) Data sharing. A probation director, or
his/her designee, may voluntarily submit data in its files to the Division of
Criminal Justice Services (DCJS).
(7) Freedom of Information Law. A probation
director, or his/her designee, may deny access to case records or portions
thereof sought pursuant to article 6 of the Public Officers Law (The Freedom of
Information Law) which meet the enumerated criteria established by subdivision
two of section
87 of the Public Officers Law. Criteria
includes:
(i) records or portions that are
specifically exempted by State or Federal statute;
(ii) if disclosed would constitute an
unwarranted invasion of personal privacy;
(iii) are compiled for law enforcement
purposes and which if disclosed would:
(a)
interfere with law enforcement investigations or judicial
proceedings;
(b) deprive a person
of a right to a fair trial or impartial adjudication;
(c) identify a confidential source or
disclose confidential information relating to a criminal investigation;
or
(d) reveal criminal
investigative techniques or procedures;
(iv) are inter-agency or intra-agency
materials:
(a) which are not statistical or
factual tabulations or data;
(b)
instructions to staff that affect the public; or
(c) final agency policy or determinations.
Case records or portions thereof which are exempt from
disclosure and not accessible include, but are not limited to
pre-plea/pre-sentence/pre-dispositional reports, medical records, confidential
HIV-related information, victim's name and address, youthful offender records,
juvenile delinquency adjustment records, sex offender registration information,
and DCJS criminal history records.
(d) Policies and procedures. A
local probation director shall establish written policies and procedures
governing release of case records consistent with laws governing access and
confidentiality and disseminate such policies and procedures to their agency
staff.
(e) Each probation
department shall establish an index filing system for all cases which may be
established and maintained in an automated system. The minimum data in any file
shall include:
(1) Individual's name and date
of birth.
(2) Identifying case
information:
(i) Probation ,
pre-dispositional supervision, or interim probation supervision
period.
(ii) Court Control/Criminal
Justice Tracking Number.
(iii) New
York State Identification (NYSID), where applicable.
(iv) Social Security number, where
available.
(3) Type of
complaint or conviction/adjudication.
(4) Court's disposition and date.
(5) Discharge date and type of
discharge.