NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A158
SPONSOR: Rozic (MS) TITLE OF BILL: An act to amend the executive law and the education
law, in relation to prohibiting mandatory disclosure of a criminal
history record in certain circumstances
PURPOSE: To make it unlawful discriminatory practice for an employer
to require a job applicant to disclose his or her criminal history
record obtained from the Division of Criminal Justice Services as a
requirement for consideration of employment.
SUMMARY OF PROVISIONS:
Section 1 of the bill amends subdivision 15 of section 296 of the execu-
tive law to make it an unlawful discriminatory practice for a person,
agency, bureau, corporation, state or political subdivision to require
an individual to provide a copy of his or her criminal history record
obtained from the Division of Criminal Justice Services (DCJS).
Section II of the bill adds a new paragraph (0 to subdivision 3 of
section 313 of the education law to prohibit an institution of education
to require an individual provide his or her DCJS criminal history record
to such institution.
Section III sets forth the effective date.
JUSTIFICATION: As the central repository of criminal history informa-
tion in New York, the Division of Criminal Justice Services (DCJS) is
charged with maintaining finger-print based criminal history records of
individuals arrested for criminal offenses in New York State. See gener-
ally, Executive Law § 837. The DCJS criminal history record (DCJS
record) is confidential and is available to law enforcement agencies,
courts and entities that have statutory access to the records. See Exec-
utive Law § 836(6),(8). In addition, individuals can obtain their
personal DCJS record. See 9 NYCRR 60.50.1 (establishing procedures for
people who are not incarcerated to access their personal record); Execu-
tive Law § 837 (8-a) (establishing the right for incarcerated people to
access their personal DCJS records without having to pay a fee), The
personal DCJS record that is disclosed to individuals is =suppressed,
and therefore includes arrests that have been scaled under Criminal
Procedure Law (CPL) § 160.55, or § 160,58, and arrests that have
resulted in Youthful Offender adjudication and deemed confidential under
CPL § 720.35, to ensure the confidentiality of the personal DCJS record,
DCJS permits individuals to authorize re-disclosure of their personal
record only to their attorneys.
The confidential nature of the DCJS record is reinforced by those stat-
utes that authorize disclosure to non-law enforcement entities. For
example, Executive law § 837-n allows certain employers to access DCJS
of applicants for caregiver positions. Subsection (2) (b) of this
provision specifically states that the DCJS record is not to be re-disc-
losed, and that "any person who re-discloses such reports in violation
of this section shall be guilty of a class A misdemeanor." In addition,
DCJS's website includes warnings about the confidentiality of its crimi-
nal history record, stating for example the following: "Note: a personal
record review cannot be requested for another person in order to deter-
mine if that person has a criminal history."
Despite the clear import of these laws and policies, a growing number of
entities are trying to bypass the confidential nature of the DCJS record
by requiring applicants to obtain and re-disclose their personal DCJS
records. For example, at least two colleges, Empire State College and
SUNY Plattsburgh, require applicants to re-disclose their personal DCJS
records as a condition of admission, and the Office of Alcohol and
Substance Abuse Services (OASAS) had maintained a policy requiring
applicants for certification or re-certification as an alcohol and
substance abuse counselor to re-disclose their personal DCJS record.
Because the personal DCJS record is unsuppressed, the entities engaging
in this practice improperly obtain information about sealed or confiden-
tial arrests.
Taken as a whole, the existing laws seem to prohibit this practice. But
there is not one provision than an applicant can point to in rebuffing
an entity's request or requirement that the personal DCJS record be
re-disclosed. Nor do entities that undermine the confidentiality of the
DCJS record in this manner incur a penalty. In addition, because there
is not one provision explicitly prohibiting this practice, many appli-
cants are not aware of the illegal nature of the request disclose their
personal DCJS records and comply without fully understanding the conse-
quences of doing so.
This proposed legislation seeks to protect the confidentiality of the
DCJS record explicitly providing that entities cannot ask or require
applicants to re-disclose their personal DCJS records. Specifically, the
proposed legislation:
1. Amends Executive Law § 837 by including new subsection (8-d) which
explicitly prohibits any entity from asking or requiring applicants to
re-disclose their personal DCJS record.
2. Ensures that "entity" is broadly defined by looking to Executive
(Human Rights) Law for definitions of entities in the domains of employ-
ment and housing, and to the regulations promulgated pursuant to the
Education Law for the definition of institutions of higher education.
3. Provides for full enforcement of this prohibition by making it a
class A misdemeanor for any "person" who fails to comply. "Person" is
defined by penal Law § 10.00(7) to include not only human beings, but
also public or private corporations, unincorporated associations, part-
nerships, the governments and governmental instrumentalities, See gener-
ally People v. Highgate LTC management, 69 A.D,3d 185 (2009) (nothing
how broadly "person" is defined under Penal Law § 10,00(7)). This
penalty parallels the penalty set forth in Executive Law § 837-n for
unauthorized re-disclosure of the DCJS record.
LEGISLATIVE HISTORY: 2014: A07593 (Rozic) - Assembly Floor 2013:
A07593 (Rozic) - Governmental Operations.
FISCAL IMPACT ON THE STATE: None.
EFFECTIVE DATE: This act shall take effect one hundred twenty days
after it shall have become law.
