N.Y. Comp. Codes R. & Regs. tit. 9 § 348.7

Current through Register Vol. 46, No. 43, October 23, 2024

Section 348.7 - Accessibility of case records

(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.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 348.7

Renumbered from 348.6 New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019