S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7022
                                   I N  S E N A T E
                                    April 16, 2014
                                      ___________
       Introduced  by Sen. NOZZOLIO -- (at request of the Office for Prevention
         of Domestic Violence) -- read twice  and  ordered  printed,  and  when
         printed to be committed to the Committee on Codes
       AN ACT to amend the executive law, the social services law and the crim-
         inal  procedure  law,  in  relation  to  the  New  York state domestic
         violence fatality review team access to sealed records
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Paragraph (h) of subdivision 10 of section 575 of the exec-
    2  utive law, as added by section 3 of part A of chapter 491 of the laws of
    3  2012, is amended to read as follows:
    4    (h)  To  the extent consistent with federal law, upon request the team
    5  shall be provided client-identifiable information and records  necessary
    6  for the investigation of a domestic violence-related death or near death
    7  incident, including, but not limited to:
    8    (i)  records maintained by a local social services district, INCLUDING
    9  BUT NOT LIMITED TO, RECORDS WHICH ARE AUTHORIZED TO BE DISCLOSED  PURSU-
   10  ANT TO SUBPARAGRAPH (BB) OF PARAGRAPH (A) OF SUBDIVISION FOUR OF SECTION
   11  FOUR  HUNDRED TWENTY-TWO, SUBPARAGRAPH (VI) OF PARAGRAPH (A) OF SUBDIVI-
   12  SION FIVE OF SECTION FOUR HUNDRED TWENTY-TWO AND SUBPARAGRAPH (VIII)  OF
   13  PARAGRAPH (D) OF SUBDIVISION FIVE OF SECTION FOUR HUNDRED TWENTY-SEVEN-A
   14  OF THE SOCIAL SERVICES LAW;
   15    (ii)  law  enforcement  records,  INCLUDING RECORDS SEALED PURSUANT TO
   16  SECTIONS 160.50, 160.55 AND 160.58 OF THE CRIMINAL PROCEDURE LAW, except
   17  where the provision of [such] LAW ENFORCEMENT  records  would  interfere
   18  with an ongoing law enforcement investigation or identify a confidential
   19  source or endanger the safety or welfare of an individual;
   20    (iii) court records;
   21    (iv) probation and parole records;
   22    (v)  records  from  domestic  violence  residential or non-residential
   23  programs;
   24    (vi) records from any relevant service provider, program or  organiza-
   25  tion; and
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD13905-01-4
       S. 7022                             2
    1    (vii)  all other relevant records in the possession of state and local
    2  officials or agencies provided, however, no official or agency shall  be
    3  required  to provide information or records concerning a person charged,
    4  investigated or convicted in such death or near death  in  violation  of
    5  such person's attorney-client privilege.
    6    S  2.  Paragraph (i) of subdivision 10 of section 575 of the executive
    7  law, as added by section 3 of part A of chapter 491 of the laws of 2012,
    8  is amended to read as follows:
    9    (i) Any information or records otherwise  confidential  [and],  privi-
   10  leged  AND SEALED in accordance with state law which are provided to the
   11  team shall remain  confidential,  PRIVILEGED  AND  SEALED  as  otherwise
   12  provided  by  law. All records received, meetings conducted, reports and
   13  records made and maintained and all books and  papers  obtained  by  the
   14  team  shall  be  confidential  and  shall not be open or made available,
   15  except by court order or as set forth in paragraphs (k) and (l) of  this
   16  subdivision.
   17    S  3.  Subparagraphs (z) and (aa) of paragraph (A) of subdivision 4 of
   18  section 422 of the social services law, subparagraph (z) as amended  and
   19  subparagraph  (aa)  as  added  by  chapter  440 of the laws of 2011, are
   20  amended and a new subparagraph (bb) is added to read as follows:
   21    (z) an entity with appropriate legal authority  in  another  state  to
   22  license,  certify  or  otherwise approve prospective foster and adoptive
   23  parents where disclosure of information regarding the prospective foster
   24  or adoptive parents and other persons over the age of eighteen  residing
   25  in  the home of such prospective parents is required by paragraph twenty
   26  of subdivision (a) of section six hundred seventy-one of title forty-two
   27  of the United States code; [and]
   28    (aa) a social services official who is investigating whether an  adult
   29  is  in  need of protective services in accordance with the provisions of
   30  section four hundred seventy-three of this chapter, when  such  official
   31  has  reasonable cause to believe such adult may be in need of protective
   32  services due to the conduct of an  individual  or  individuals  who  had
   33  access  to  such adult when such adult was a child and that such reports
   34  and information are needed to further the present investigation[.]; AND
   35    (BB) THE FATALITY REVIEW TEAM OF THE NEW YORK  STATE  OFFICE  FOR  THE
   36  PREVENTION  OF  DOMESTIC VIOLENCE RELATING TO THOSE RECORDS SUCH TEAM IS
   37  AUTHORIZED TO UTILIZE PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH  (H)  OF
   38  SUBDIVISION  TEN  OF  SECTION FIVE HUNDRED SEVENTY-FIVE OF THE EXECUTIVE
   39  LAW, SUBJECT TO THE CONFIDENTIALITY PROVISIONS OF PARAGRAPHS (I) AND (J)
   40  OF SUCH SUBDIVISION.
   41    S 4. Subparagraphs (iv) and (v) of paragraph (a) of subdivision  5  of
   42  section 422 of the social services law, as amended by chapter 555 of the
   43  laws  of  2000, are amended and a new subparagraph (vi) is added to read
   44  as follows:
   45    (iv) to the subject of the report; [and]
   46    (v) to a district attorney, an assistant district attorney, an  inves-
   47  tigator  employed  in  the  office of a district attorney, or to a sworn
   48  officer of the division of state police, of  a  city,  county,  town  or
   49  village  police  department  or  of  a county sheriff's office when such
   50  official verifies that the report is  necessary  to  conduct  an  active
   51  investigation  or  prosecution  of  a  violation of subdivision three of
   52  section 240.55 of the penal law[.]; AND
   53    (VI) TO THE FATALITY REVIEW TEAM OF THE NEW YORK STATE OFFICE FOR  THE
   54  PREVENTION  OF  DOMESTIC VIOLENCE RELATING TO THOSE RECORDS SUCH TEAM IS
   55  AUTHORIZED TO UTILIZE PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH  (H)  OF
   56  SUBDIVISION  TEN  OF  SECTION FIVE HUNDRED SEVENTY-FIVE OF THE EXECUTIVE
       S. 7022                             3
    1  LAW, SUBJECT TO THE CONFIDENTIALITY PROVISIONS OF PARAGRAPHS (I) AND (J)
    2  OF SUCH SUBDIVISION.
    3    S 5. Subparagraphs (vi) and (vii) of paragraph (d) of subdivision 5 of
    4  section  427-a  of the social services law, as amended by chapter 377 of
    5  the laws of 2011, are amended and a new subparagraph (viii) is added  to
    6  read as follows:
    7    (vi) a court, but only while the family is receiving services provided
    8  under  the  family  assessment and services track and only pursuant to a
    9  court order or judicial subpoena, issued after notice and an opportunity
   10  for the subject of the report and all parties to the present  proceeding
   11  to be heard, based on a judicial finding that such reports, records, and
   12  any  information  concerning such reports and records, are necessary for
   13  the determination of an issue before the court.  Such  reports,  records
   14  and information to be disclosed pursuant to a judicial subpoena shall be
   15  submitted  to the court for inspection and for such directions as may be
   16  necessary to protect  confidentiality,  including  but  not  limited  to
   17  redaction  of  portions  of the reports, records, and information and to
   18  determine any further limits on redisclosure in addition to the  limita-
   19  tions  provided  for in this title. A court shall not have access to the
   20  sealed family assessment and services reports, records, and any informa-
   21  tion concerning such  reports  and  records,  after  the  conclusion  of
   22  services provided under the family assessment and services track; [and]
   23    (vii)  the subject of the report included in the records of the family
   24  assessment and services track[.]; AND
   25    (VIII) THE FATALITY REVIEW TEAM OF THE NEW YORK STATE OFFICE  FOR  THE
   26  PREVENTION  OF  DOMESTIC VIOLENCE RELATING TO THOSE RECORDS SUCH TEAM IS
   27  AUTHORIZED TO UTILIZE PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH  (H)  OF
   28  SUBDIVISION  TEN  OF  SECTION FIVE HUNDRED SEVENTY-FIVE OF THE EXECUTIVE
   29  LAW, SUBJECT TO THE CONFIDENTIALITY PROVISIONS OF PARAGRAPHS (I) AND (J)
   30  OF SUCH SUBDIVISION.
   31    S 6. Paragraph (d) of subdivision 1 of section 160.50 of the  criminal
   32  procedure  law, as amended by section 73 of subpart B of part C of chap-
   33  ter 62 of the laws of 2011, is amended to read as follows:
   34    (d) such records shall be made available to the person accused  or  to
   35  such  person's  designated  agent,  and shall be made available to (i) a
   36  prosecutor in any proceeding in which the accused has moved for an order
   37  pursuant to section 170.56 or 210.46 of this  chapter,  or  (ii)  a  law
   38  enforcement  agency  upon ex parte motion in any superior court, if such
   39  agency demonstrates to  the  satisfaction  of  the  court  that  justice
   40  requires  that  such records be made available to it, or (iii) any state
   41  or local officer or agency  with  responsibility  for  the  issuance  of
   42  licenses to possess guns, when the accused has made application for such
   43  a  license,  or  (iv)  the  New York state department of corrections and
   44  community supervision when the accused is on  parole  supervision  as  a
   45  result  of  conditional  release  or a parole release granted by the New
   46  York state board of parole, and the arrest which is the subject  of  the
   47  inquiry  is  one  which occurred while the accused was under such super-
   48  vision or (v) any prospective employer of  a  police  officer  or  peace
   49  officer  as  those  terms  are  defined in subdivisions thirty-three and
   50  thirty-four of section 1.20 of this chapter, in relation to an  applica-
   51  tion  for  employment  as  a  police officer or peace officer; provided,
   52  however, that every person who is  an  applicant  for  the  position  of
   53  police  officer  or  peace officer shall be furnished with a copy of all
   54  records obtained under this paragraph and  afforded  an  opportunity  to
   55  make  an explanation thereto, or (vi) the probation department responsi-
   56  ble for supervision of the accused when the arrest which is the  subject
       S. 7022                             4
    1  of  the  inquiry  is one which occurred while the accused was under such
    2  supervision, OR (VII) THE FATALITY REVIEW TEAM OF  THE  NEW  YORK  STATE
    3  OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE RELATING TO THOSE RECORDS
    4  SUCH  TEAM  IS  AUTHORIZED  TO  UTILIZE PURSUANT TO SUBPARAGRAPH (II) OF
    5  PARAGRAPH (H) OF SUBDIVISION TEN OF SECTION FIVE HUNDRED SEVENTY-FIVE OF
    6  THE EXECUTIVE LAW, SUBJECT TO THE CONFIDENTIALITY  PROVISIONS  OF  PARA-
    7  GRAPHS (I) AND (J) OF SUCH SUBDIVISION; and
    8    S  7. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
    9  procedure law, as amended by section 74 of subpart B of part C of  chap-
   10  ter 62 of the laws of 2011, is amended to read as follows:
   11    (d) the records referred to in paragraph (c) of this subdivision shall
   12  be  made  available to the person accused or to such person's designated
   13  agent, and shall be made available to (i) a prosecutor in any proceeding
   14  in which the accused has moved for an order pursuant to  section  170.56
   15  or  210.46  of  this  chapter,  or (ii) a law enforcement agency upon ex
   16  parte motion in any superior court, if such agency demonstrates  to  the
   17  satisfaction  of  the  court  that justice requires that such records be
   18  made available to it, or (iii) any state or local officer or agency with
   19  responsibility for the issuance of licenses to possess  guns,  when  the
   20  accused  has  made  application for such a license, or (iv) the New York
   21  state department of  corrections  and  community  supervision  when  the
   22  accused  is  under parole supervision as a result of conditional release
   23  or parole release granted by the New York state board of parole and  the
   24  arrest  which  is the subject of the inquiry is one which occurred while
   25  the accused was under such supervision, or (v) the probation  department
   26  responsible  for supervision of the accused when the arrest which is the
   27  subject of the inquiry is one which occurred while the accused was under
   28  such supervision, or (vi) a police agency, probation  department,  sher-
   29  iff's  office,  district  attorney's office, department of correction of
   30  any municipality and parole department, for  law  enforcement  purposes,
   31  upon  arrest  in  instances  in which the individual stands convicted of
   32  harassment in the second degree, as defined in  section  240.26  of  the
   33  penal law, committed against a member of the same family or household as
   34  the  defendant,  as defined in subdivision one of section 530.11 of this
   35  chapter, and determined  pursuant  to  subdivision  eight-a  of  section
   36  170.10  of this title, OR (VII) THE FATALITY REVIEW TEAM OF THE NEW YORK
   37  STATE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE RELATING  TO  THOSE
   38  RECORDS SUCH TEAM IS AUTHORIZED TO UTILIZE PURSUANT TO SUBPARAGRAPH (II)
   39  OF PARAGRAPH (H) OF SUBDIVISION TEN OF SECTION FIVE HUNDRED SEVENTY-FIVE
   40  OF THE EXECUTIVE LAW, SUBJECT TO THE CONFIDENTIALITY PROVISIONS OF PARA-
   41  GRAPHS (I) AND (J) OF SUCH SUBDIVISION; and
   42    S 8. Subdivision 6 of section 160.58 of the criminal procedure law, as
   43  added  by  section  3  of part AAA of chapter 56 of the laws of 2009, is
   44  amended to read as follows:
   45    6. Records sealed pursuant to this subdivision shall be made available
   46  to:
   47    (a) the defendant or the defendant's designated agent;
   48    (b) qualified agencies, as defined  in  subdivision  nine  of  section
   49  eight  hundred  thirty-five  of the executive law, and federal and state
   50  law enforcement agencies, when acting within  the  scope  of  their  law
   51  enforcement duties; or
   52    (c)  any  state or local officer or agency with responsibility for the
   53  issuance of licenses to possess guns, when the person has made  applica-
   54  tion for such a license; or
   55    (d)  any  prospective employer of a police officer or peace officer as
   56  those terms are defined in subdivisions thirty-three and thirty-four  of
       S. 7022                             5
    1  section  1.20 of this chapter, in relation to an application for employ-
    2  ment as a police officer or peace officer; provided, however, that every
    3  person who is an applicant for the position of police officer  or  peace
    4  officer  shall  be  furnished  with a copy of all records obtained under
    5  this paragraph and afforded an opportunity to make an explanation there-
    6  to[.]; OR
    7    (E) THE FATALITY REVIEW TEAM OF THE NEW  YORK  STATE  OFFICE  FOR  THE
    8  PREVENTION  OF  DOMESTIC VIOLENCE RELATING TO THOSE RECORDS SUCH TEAM IS
    9  AUTHORIZED TO UTILIZE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (H)  OF
   10  SUBDIVISION  TEN  OF  SECTION FIVE HUNDRED SEVENTY-FIVE OF THE EXECUTIVE
   11  LAW, SUBJECT TO THE CONFIDENTIALITY PROVISIONS OF PARAGRAPHS (I) AND (J)
   12  OF SUCH SUBDIVISION.
   13    S 9. This act shall take effect immediately.