N.Y. Comp. Codes R. & Regs. tit. 19 § 941.16

Current through Register Vol. 46, No. 45, November 2, 2024

Section 941.16 - Privacy/confidentiality

(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.

N.Y. Comp. Codes R. & Regs. Tit. 19 § 941.16

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