CJS-32-13-00014-A Probation Case Record Management

1/8/14 N.Y. St. Reg. CJS-32-13-00014-A

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 1

January 08, 2014

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

NOTICE OF ADOPTION

 

I.D No. CJS-32-13-00014-A

Filing No. 1231

Filing Date. Dec. 18, 2013

Effective Date. Jan. 08, 2014

Probation Case Record Management

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of Part 348 of Title 9 NYCRR.

Statutory authority:

Executive Law, section 243(1)

Subject:

Probation Case Record Management.

Purpose:

To establish minimum state standards regarding probation case record management.

Text or summary was published

in the August 7, 2013 issue of the Register, I.D. No. CJS-32-13-00014-P.

Final rule as compared with last published rule:

No changes.

Text of rule and any required statements and analyses may be obtained from:

Linda J. Valenti, Assistant Counsel, NYS Division of Criminal Justice Services, Alfred E. Smith Office Building, 80 South Swan Street, Albany, N.Y. 12210, [phone], email: [e-mail]

Initial Review of Rule

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment

The Division of Criminal Justice Services did not receive any formal written comments during the public comment period. However, there was a telephone call received from a staff person from the Assembly Administrative Review Commission which conveyed overall support of the proposed regulatory changes, yet raised an informal inquiry regarding whether the Division would consider the feasibility of amending certain proposed regulatory language found in Rule Section 348.6(b)(6) to refer to certain Mental Health Law (MHL) sections added by Chapter 501 of the Laws of 2012, commonly referred to as the Protection of People With Special Needs Act. The regulatory language in the aforementioned Rule Section had been added to clarify existing statutory provisions which recognize that law enforcement, including probation departments, in accordance with Social Services Law section 378-a(2)(d) and Executive Law Section 845-b(5) (e) must cooperate in sharing information pertaining to any crime identified in criminal history which certain state agencies under prescribed circumstances have obtained from the Division so that these state agencies can better determine whether any ground exists relating to the crime/criminal conviction or pending criminal charge, for denying an application, renewal or employment.

The aforementioned Executive Law provision refers to authorized agencies, a term specifically defined in paragraph (a) of subdivision one of Executive Law section 845-b to a State agency authorized to check criminal history pursuant to subdivision two of such section. Subdivision two of this statutory section was not amended to explicitly refer to new MHL Sections 19.20 and 19.20-a, nor were similar amendments made to these MHL sections as noted above by which law enforcement are statutorily required to cooperate in sharing certain information.

After careful review and consideration, the Division is reluctant to expand upon the current regulatory language at the present time to refer to these specific MHL sections. There has been no advocacy of this change by any of the affected State agencies or record-sharing issues relative to such MHL sections which have been raised by local probation departments. Further, the Division believes that existing language in our agency regulatory provisions governing discretionary sharing of probation case record information recognizes instances whereby a probation director, or his/her designee, for public safety or case management purposes, may share certain relevant case record information to specific entities or individuals. Among regulatory examples are criminal investigations, victim safety, and professional licensing/certification. Notably, the enumerated list is not limited in nature. Therefore, there is already sufficient regulatory language by which record-sharing may occur for professional licensing/certification or other employment purposes under this new Act. Finally, to impose a new mandatory regulatory requirement for only probation departments, where the statutory law is silent, is substantive in nature and should be properly vetted through rulemaking procedures to solicit and consider any public comment before adoption.