N.Y. Comp. Codes R. & Regs. tit. 9 § 348.4

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

Section 348.4 - Accessibility of case records

(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.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 348.4

Amended New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019