Relates to confidential hearing records; authorizes attorney representing incarcerated individual in certain proceedings to obtain a copy of hearing record; prohibits redisclosure.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7192
SPONSOR: Dilan TITLE OF BILL:
An act to amend the correction law, in relation to confidential hearing
records
PURPOSE:
To provide complete hearing records to attorneys representing incarcer-
ated individuals appeals of prison disciplinary hearings and other
related legal proceedings.
SUMMARY OF PROVISIONS:
Section 1 amends section 138 of the correction law to provide that
attorneys representing incarcerated individuals in prison disciplinary
hearings shall be given the complete hearing record, but may not redis-
close any confidential information to any person not otherwise author-
ized to obtain confidential records.
Section 2 provides for an effective date.
JUSTIFICATION:
Incarcerated individuals are not represented by counsel in prison disci-
plinary hearings but may obtain counsel for the appeal of such hearings.
Attorneys representing incarcerated individuals in such appeals obtain
the administrative hearing records through requests or through discovery
if the proceeding is in litigation. Attorneys are not given the parts of
the administrative hearing record that the department of corrections
deems confidential, including witness testimony by informants or any
information that might reveal the identity of such an informant. Records
that might be construed to show investigative techniques, including
statements by outside witnesses, such as visitors, who have been inter-
viewed by DOCCS investigators are also sometimes denied. In the most
extreme of circumstances in which all of the evidence considered by a
DOCCS hearing officer is provided by a confidential informant, the
attorney is often not permitted to know the substance of what was said
by the witness as well as who said it.
It is difficult for attorneys to adequately represent incarcerated indi-
viduals in prison disciplinary hearings when they have to: guess at the
evidence against their clients. In many cases, an attorney does not know
the details of the allegations of a client's misbehavior, cannot assess
whether the hearing record actually supports the finding of guilt
against the client and cannot even assess whether or not the client was
correctly identified by the confidential informant. In spite of the lack
of information, the attorney has to appeal hearings in which a client
found guilty of violating the rules of incarcerated individuals conduct
is sanctioned to time in solitary confinement that may last for months
or years.
Attorneys, as officers of the court, have ethical obligations and
responsibilities not shared by the general public. An attorney who diso-
beys the law or rules of ethics faces sanctions or disbarment. Further-
more, attorneys who represent incarcerated individuals frequently deal
with psychiatric records that cannot be revealed to their clients so
they are familiar with the restrictions on sharing confidential informa-
tion. Providing confidential records to a New York State licensed attor-
ney does not represent the same kind of risk to the security of the
prison system that may exist in providing confidential records under
FOIL to an incarcerated individuals or member of the public. This bill
specifically prohibits redisclosure of confidential information so that
any mention of such information would have to be sealed in court or
administrative proceedings and could not be revealed to the incarcerat-
ed. individuals who is the subject of the disciplinary hearing. There is
no risk to the security of the prison system in providing attorneys with
incarcerated individual records in the context of an appeal of a disci-
plinary hearing where redisclosure of the information in the records to
persons not otherwise authorized to obtain such records is prohibited.
The bill also provides that the department may redact personal identify-
ing information of confidential informants from the records provided to
the attorney.
LEGISLATIVE HISTORY:
03/13/17 amended on third reading 2385a
01/03/18 ordered to third reading cal-184
05/30/19 advanced to third reading cal.500
01/08/20 ordered to third reading cal.162
05/25/21 reported referred to rules
02/17/22 advanced to third reading cal.435
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
7192
2023-2024 Regular Sessions
IN ASSEMBLY
May 12, 2023
___________
Introduced by M. of A. DILAN -- read once and referred to the Committee
on Correction
AN ACT to amend the correction law, in relation to confidential hearing
records
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 138 of the correction law is amended by adding a
2 new subdivision 8 to read as follows:
3 8. An attorney representing an incarcerated individual in any appeal
4 of a disciplinary proceeding or in any lawsuit related to such a
5 proceeding shall be provided with a copy of the entire hearing record
6 but shall not redisclose such records or any information contained in
7 the records to any person not otherwise authorized by law to obtain
8 them. The name, identification number, housing location or work assign-
9 ment of any confidential informant may be redacted from such hearing
10 record.
11 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01079-02-3
