New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Subtitle H - DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES
Chapter I - ADMINISTRATION OF PROBATION
Part 348 - Case Record Management
Section 348.7 - Accessibility of case records
Universal Citation: 9 NY Comp Codes Rules and Regs ยง 348.7
Current through Register Vol. 46, No. 12, March 20, 2024
(a) General.
(1) Case records shall be
accessible, in whole or in part, only by those authorized by law, court order
and/or the Division of Criminal Justice Services (DCJS). Authorized DCJS
personnel shall have access to all case records and probation departments shall
provide copies of any case records to DCJS upon request.
(2) Any pre-sentence report or memorandum
submitted to the court pursuant to article 390 of the Criminal Procedure Law
and any medical, psychiatric or social agency report or other information
gathered for the court by a probation department or submitted directly to the
court, in connection with the question of sentence is confidential and may not
be made available to any person or public or private agency except where
specifically required or permitted by statute or upon specific authorization of
the court.
(3) Any
pre-dispositional reports or memoranda prepared or obtained by a probation
department for the purpose of a dispositional hearing shall be deemed
confidential information furnished to the court and shall be subject to
disclosure solely in accordance with Family Court Act section
351.1 or 750
whichever is applicable or as otherwise provided by law.
(b) Mandatory sharing of case record information.
(1) A probation department must
make available a copy of its pre-plea/pre-sentence report and any medical,
psychiatric or social agency report submitted in connection with its
pre-sentence investigation or its supervision of a defendant, to any court or
to the probation department of any court within the State that subsequently has
jurisdiction over such defendant for the purpose of pronouncing or reviewing
sentence and to any State agency to which the defendant is subsequently
committed or certified or under whose care and custody or jurisdiction the
defendant subsequently is placed upon the official written request of the court
or agency. In any such case, the court or agency receiving such material must
retain it under the same conditions of confidentiality as apply to the
probation department that made it available.
(2) A probation department must provide a
copy of a pre-plea/pre-sentence report prepared in the case of an individual,
other than a youthful offender, who is known to be licensed pursuant to title 8
of the Education Law to the State Department of Health if the licensee is a
physician, a specialist's assistant or a physician assistant and to the State
Education Department with respect to all such other licensees. Such reports
must be in writing and shall be accumulated and forwarded every three months.
They may be submitted in hard copy or electronically and shall contain the
following information:
(i) the name of the
licensee and the profession in which the license is held;
(ii) the date of the conviction and the
nature thereof; and
(iii) the index
or other identifying file number.
In any such case, the State department receiving such material must retain it under the same conditions of confidentiality as apply to the probation department that made it available.
(3) Upon a determination by a
probation director, or his/her designee, that probation records regarding an
individual presently under the supervision of the department are relevant to an
investigation of child abuse or maltreatment conducted by a child protective
service pursuant to title 6 of article 6 of the Social Services Law, he/she
shall provide the records, or portions thereof, determined to be relevant to
the child protective service conducting the investigation. Each probation
director, or his/her designee, shall make provisions for the transmission of
those required records.
(4) A
probation department must provide all requisite case record information with
respect to interstate or intrastate transfer of any individual under probation
supervision or former conditional releasee and, upon official written request,
forward any additional case record information to the agency to which
supervision has been transferred.
(5) A probation department must, upon request
of the State Office of Victim Services, provide such assistance and data as
will enable such office to carry out its functions and duties in accordance
with Executive Law section
623(4).
(6) A probation department must, upon request
of a State agency authorized to check criminal history information pursuant to
Executive Law section
845-b(2) or Social
Services Law section
378-a(2)(d) which has
received criminal history information from the Division of Criminal Justice
Services, provide information pertaining to any crime identified in such
criminal history information for the purposes of determining whether any ground
exists relating to such crime/criminal conviction or pending criminal charge,
whichever is applicable, for denying an application, renewal, or employment.
In any such case, the court or agency receiving such material must retain it under the same conditions of confidentiality as apply to the probation department that made it available.
(c) Discretionary sharing of case record information and risk instrument sharing.
(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) Public safety and/or case management
purposes. 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 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, interim probation supervision, 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) Risk assessment instruments and
information record sharing. Notwithstanding any other provision of law or
regulation to the contrary:
(i) a probation
director or his/her designee may disclose data necessary for completion of a
detention risk assessment instrument to law enforcement, another probation
department, courts, detention administrators, detention providers, and the
attorney for the child upon retention or appointment, solely for the purpose of
accurate completion of such risk assessment instrument in accordance with
Executive Law section
530(2)(a);
(ii) any information or data necessary for
the development, validation or revalidation of the detention risk assessment
instrument shall be shared among local probation departments, the Office of
Probation and Correctional Alternatives and, where authorized by the Division
of Criminal Justice Services, the entity under contract with the division to
provide information technology services related to youth assessment and
screening, the Office of Children and Family Services, and any entity under
contract with said office to provide services relating to the development,
validation or revalidation of the detention risk assessment instrument. Such
information shall be shared and received in a manner that protects the
confidentiality of such information. The sharing, use, disclosure and
redisclosure of such information to any person, office, or other entity not
specifically authorized to receive it pursuant to Executive Law section
530 or any other law is
prohibited;
(iii) data necessary
for completion of a pre-dispositional risk assessment instrument may be shared
among law enforcement, probation, courts, detention administrations, detention
providers, presentment agencies, and the attorney for the child upon retention
or appointment solely for the purpose of accurate completion of such risk
assessment instrument. A copy of the completed pre-dispositional risk
assessment instrument shall be made available to the attorney for the
respondent and the applicable court as authorized by Family Court Act section
351.1 (2-a)(d) and
(2-b)(c); and
(iv) where a
jurisdiction has a collaborative assessment approach within their juvenile
justice system to attempt to divert appropriate youth from family court, a
probation department may share limited identifying assessment information on a
case-by-case and need-to-know basis to law enforcement and/or community-based
organizations who are part of efforts to avoid unnecessary detention and/or
placement of such youth.
(4) Voluntary assessment and case planning
services. When preparing a pre-sentence investigation report of any adolescent
offender or juvenile offender, the probation department shall incorporate a
summary of any assessment findings, referrals and progress with respect to
mitigating risk and addressing any identified needs. The department may make a
recommendation regarding completion of the case plan to the Youth Part and
provide such information as it shall deem relevant.
(5) Youthful offender case records.
(i) A probation department shall not divulge
youthful offender information, except where specifically required or permitted
by statute or upon specific authorization of the court.
(ii) A probation director or his/her designee
may authorize limited disclosure of youthful offender information, not
otherwise specifically prohibited by State or Federal law, to be shared with
other law enforcement and/or treatment agencies, as applicable on a
case-by-case and need-to-know basis, in carrying out its official duties,
including executing a warrant, conducting a search, referring a youthful
offender for assessment and/or treatment as a condition of probation or interim
probation supervision, performing supervision in conjunction with the
assistance of law enforcement, or taking a youthful offender into custody
without a warrant.
(iii) Limited
information may include name, alias, address, phone, height, weight, hair eyes,
race, gender, date of birth, driver's license number, photograph,
occupation/employer hours worked and location, school location, description of
weapons and information as to gun permits, whether there exists any history of
suicide attempts or threats, and additional information related to officer
safety issues or underlying information regarding the offense for which the
youthful offender is under supervision.
(iv) Release of a pre-sentence report of any
youthful offender shall only occur with specific authorization of the court or
where otherwise specifically authorized or permitted by statute.
(v) Redisclosure of any youthful offender
information shall not occur without the express written consent of the
probation director or his/her designee.
(6) Teaching notification. In accordance with
8 NYCRR section
83.1(c),
a probation director or his/her designee may authorize release of information
in the possession of the probation department indicating that an applicant for
a teaching certificate has been convicted of a crime, or has committed an act
which raises a reasonable question as to the individual's moral character to
the Office of Teaching Initiatives within the State Education Department. Such
director or designee may also authorize release of information in the
possession of the probation department indicating that an individual holding a
teaching certificate has been convicted of a crime, or has committed an act
which raises a reasonable question as to the individual's moral character, to
the professional conduct officer of the State Education Department.
(7) 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.
(8) 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), individual under interim probation supervision, 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, interim probation supervision or conditional
release, a probation, interim 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's 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, supervisory term, warrant/absconder status, and
photograph of any such adult probationer (other than a youthful offender) or
individual on interim probation supervision.
(9) Research. Case records may be accessible,
in whole or in part, for bona fide research conducted by a governmental entity,
educational institution, and/or a private entity where the probation director,
or his/her designee, has 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 identifiable 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) that any
project records copied shall be maintained in secure locked files or otherwise
physically or electronically safeguarded;
(iv) 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 and prevent its unauthorized use;
(v) to guarantee that research performed or
information accessed will not result in adverse action against any individuals
who may be the subject of the research;
(vi) the probation department is provided
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
(vii) 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 Commissioner of the Division of Criminal Justice Services and the 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.
(10) Data sharing. A probation director, or
his/her designee, may voluntarily submit data in its files to the Division of
Criminal Justice Services (DCJS).
(11) Freedom of Information Law (FOIL).
Probation departments are subject to article 6 of the Public Officers Law. A
probation director, or his/her designee, may deny access to case records or
portions thereof sought under FOIL 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 which are:
(a) 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 FOIL disclosure and not accessible include 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, certain 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.
Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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