BILL NUMBER: S4835

SPONSOR: CARLUCCI
 
TITLE OF BILL:  An act to amend the mental hygiene law, in relation to
disclosure of the records of court proceedings

 
PURPOSE:

This legislation would limit access to the court records in Article 81
Guardianship proceedings.

 
SUMMARY OF PROVISIONS:

Section 1. Amends subdivision (b) of Section 81.14 of the Mental Hygiene
Law to provide that the court records in a proceeding under Article 81
Guardianship proceeding shall not be perused, examined, disclosed, taken
or copied by any other person than a party, the attorney or counsel of a
party, the guardian, the court evaluator or the court examiner except by
order of the court. Also subdivision (d) of Section 81.14 of the Mental
Hygiene Law is amended to remove the requirement of the courts to inform
the allegedly incapacitated person of his or her right to request that
              

the court records be sealed at the time of the commencement of the hear-
ing.

Section 2. Applicability. The obligation of a County Clerk to limit
access to the records of proceedings occurring prior to the effective
date of this act shall only be limited to the extent that a County Clerk
can readily identify the records of proceedings to which this act
applies. A court may also limit access to the records of proceedings had
prior to the effective date hereof in accordance with this act, which
shall not abridge the court's authority to further restrict access for
good cause shown pursuant to any other law or rule.

Section 3. Provides for an immediate effective date.

 
JUSTIFICATION:

Currently, court records of Article 81 Guardianship proceedings are
available for public inspection and contain significant amounts of
personal information which may be used to gain access to and control of
an incapacitated person's financial assets. With the ever-increasing
risk and reports of identity theft, it is necessary to limit access to
the very information used to perpetrate such crimes will go a long way
to protecting those who are unable to protect themselves.

The rise of identity theft poses a serious threat to all of us. Some,
however, are at greater risk and are unable to readily protect them-
selves. Individuals who are disabled mentally and who are unable to
manage their affairs are among the most vulnerable to this epidemic.
These individuals are also often the subject of court proceedings insti-
tuted for the purpose of appointing someone to manage their personal
needs and property. It is the intent of this legislation to impose
greater safeguards on personal information in these cases by limiting
access to court records in Article 81 Guardianship proceedings.

Various statutes are already in place to prevent the disclosure of
social security numbers. In addition, the Chief Administrative Judge of
the New York State Courts has recently promulgated Uniform Rule Section
202.5(e)(2) which allows the Courts, on their own, to seal "confidential
personal information" which includes social security numbers, dates of
birth and account numbers, among others. The directive of Public Offi-
cers Law Section 96-a which prohibits the County and Court Clerks from
the intentional disclosure of social security numbers, places an onerous
burden on those clerks to safeguard this information.

Under this legislation, access to the court records in an Article 81
proceeding would be in a manner similar to the records in matrimonial
actions. In this case, the records would not be available to anyone
other than a party, the attorney or counsel of a party, the guardian,
the court evaluator or the court examiners except by order of the court.
It also seals all records prior to and after the effective date of this
amendment.

County Clerks will be the officials tasked with complying with this
change in the law. Identification of records whose access is limited by
this amendment can be a burden on those officials where past and present
proceedings have not been separately identified as one held under Arti-
cle 81. To ameliorate the burden that will be placed on County Clerks,
their obligation to limit the access to these records should be limited
only to the extent that a County Clerk can identify these records. In
furtherance of the goals of this legislation to limit access to any and
all proceedings past, present and future held under Article 81, a court
may also limit access to the records of those proceedings in accordance
with this act. Any such action by a court shall not abridge the court's
general authority to further restrict access for good cause shown under
any other law or rule.

This amendment to the Mental Hygiene Law will go a long way in protect-
ing the most vulnerable of our populace and brings greater consistency
in the treatment of such sensitive information. This proposal is
supported by the New York State Association of County Clerks which has
approved its inclusion in its 2019 Legislative Agenda.

 
LEGISLATIVE HISTORY:

2018: A.10122A/S.7720B

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to any and all
past, present and future proceedings held pursuant to Article 81 of the
Mental Hygiene Law on and after the effective date of this act.