N.Y. Comp. Codes R. & Regs. tit. 9 § 168.7

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

Section 168.7 - Confidentiality of Office of Children and Family Services records

(a) Records, files, or information identifying youth who are or have been under the care or supervision of the Office of Children and Family Services (OCFS) may not be disclosed in whole or part to any person, agency or institution, other than OCFS and New York State family courts, with the following exceptions:

(1) Records or pertinent parts thereof must be disclosed pursuant to Supreme Court order as authorized by Social Services Law section 372.

(2) Educational records may be disclosed in accordance with the provisions of and any regulations promulgated pursuant to the Family Educational Rights and Privacy Act and the New York State Education Law.

(3) Medical records, including mental health records, may be disclosed consistent with the provisions of and any regulations promulgated pursuant to the Health Insurance Portability and Accountability Act and the New York State Public Health Law.

(4) Records, or summaries of records, may be disclosed to a probation department on written request for use in accord with Family Court Act sections 166, 351.1, and 783, or Criminal Procedure Law sections 390.20 and 720.20.

(5) Nothing in this section shall be deemed to prevent access by a youth's parent or legal guardian to records of such youth where access is otherwise specifically authorized by law.

(6) Information concerning a youth's date of admission, release, revocation of release, and discharge only may be disclosed to a New York social services district or State or Federal agency on written request, when such information is necessary to enable said district or agency to determine that the youth is under its jurisdiction, thereby enabling it to provide for a youth's welfare and the necessities of life.

(7) Records pertaining to the vital statistics of youth may be disclosed to law enforcement authorities when a youth is absent from an OCFS placement without proper authorization or has violated a condition of release.

(8) Records may be made available to authorized child welfare agencies, within and without the State, which have actual custody of a youth previously or currently in OCFS custody and request specific information in writing for the purpose of developing a program or providing services to the youth. When the request is made by an out-of-state child welfare agency, OCFS shall request written confirmation, from the juvenile compact administrator for the state in which the requesting agency is located, that the agency is authorized to provide services or programs to youth within that state and is in good standing. No record shall be made available until such confirmation is received by OCFS in writing.

(9) OCFS records shall be made available to the Office of the Attorney General in furtherance of the duties of that office.

(10) Records pertaining to youth referred to OCFS as a condition of probation shall be made available to the referring court or the relevant probation department upon written request made during the period of referral.

(11) Requests for information from law enforcement authorities.

(i) For purposes of this paragraph, law enforcement authorities shall mean representatives of federal, New York State, or local law enforcement agencies conducting a criminal investigation and United State attorneys, district attorneys, or presentment agencies conducting a criminal investigation or prosecution.

(ii) Upon a written request stating that such information is necessary to conduct a criminal investigation or prosecution of an act committed by a youth in OCFS custody, law enforcement authorities shall be provided with information regarding the dates and location(s) of the youth's placement with OCFS. OCFS shall also provide the requesting agency with the relevant incident reports, other appropriate documents, and video determined by OCFS to contain potential evidence of the act.

(iii) If law enforcement authorities are called to an OCFS location in connection with a report made to such authority of a crime committed by a youth at the location, OCFS may provide such law enforcement authorities, upon request, with information regarding the dates and loca-tion(s) of the youth's placement with OCFS. If readily available at the time requested, law enforcement may be provided with relevant incident reports, other appropriate documents, and video determined by OCFS to contain potential evidence of the alleged criminal act.

(iv) If law enforcement authorities arrive at an OCFS location seeking information concerning the location of a youth currently or previously in OCFS custody in furtherance of a criminal investigation, OCFS may provide information regarding the dates and location(s) of the youth's placement with OCFS, and the last known community location of a youth in a day placement program or conditionally released.

(v) Prior to providing any information pursuant to subparagraphs (iii) or (iv) of this paragraph, the OCFS administrator on duty or ranking office staff person shall:

(a) visually inspect the badge/photo identification of the law enforcement authority representative(s); and

(b) on an OCFS form, document each representative's full name, law enforcement agency, badge/identification number, work address and phone number.

(vi) Prior to providing any information pursuant to this paragraph, the OCFS administrator on duty or ranking office staff person shall contact:

(a) the Division of Legal Affairs or, if after hours, the administrator on call who will make contact with the Division of Legal Affairs; and

(b) the Office of the Ombudsman to give notice of the request.

(vi) Only the information and materials described in this paragraph that are specifically requested by law enforcement authorities may be provided. All information and materials provided to law enforcement must be appropriately redacted by OCFS to prevent disclosure of information prohibited by statute or regulation from being disclosed, as well as the confidentiality of youth not involved in the alleged criminal act. The administrator on duty or ranking office staff member must identify each item provided to law enforcement authorities on an OCFS form. Only copies of records shall be provided, unless there is a court order to provide the original(s). If original materials are provided pursuant to a court order, this will be noted on the OCFS form and a copy will be retained by OCFS.

(12) Records relevant to the provision of services to a youth in OCFS custody by a non-employee of OCFS may be released with the written consent of the youth's parent or guardian or, if the youth is over the age of 18 at the time of the request, the youth's consent.

(b) When requests for records or other information concerning a youth is received by any agent of OCFS, and when such information is not included in the exceptions listed in subdivision (a) of this section, the correct response shall be: "OCFS is not authorized by law to disclose whether or not any individual was ever under its jurisdiction."

(c) No part of this section shall be construed to prohibit the free exchange of information within OCFS, or between OCFS and New York State family courts, when the best interest and treatment of the youth is at issue.

(d) Youth records may be disclosed for purposes of a bona fide research study, with the approval of the Commissioner of OCFS, except that the name of and other identifying information of youth shall not be disclosed to the study group. All such researchers shall sign a confidentiality agreement before approval for such study shall be granted.

(e) When any youth who has been under the care of OCFS reaches the age of 25 or has been out of the care of OCFS for 10 years, whichever is longer, all records possessed by OCFS shall be destroyed, unless required by law to be further retained, and shall not made available to any person unless pursuant to an order by the Supreme Court of the State of New York, except such records may be made available to the Office of the Attorney General of the State of New York in furtherance of the duties of that office.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 168.7

Amended New York State Register June 17, 2020/Volume XLII, Issue 24, eff. 6/17/2020