BILL NUMBER: S5170

SPONSOR: SEPULVEDA
 
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 inmates in
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 inmates in prison disciplinary hearings shall be
given the complete hearing record, but may not redisclose any confiden-
tial information to any person not otherwise authorized to obtain confi-
dential records.

              

Section 2 provides for an effective date.

 
JUSTIFICATION:

Inmates are not represented by counsel in prison disciplinary hearings
but may obtain counsel for the appeal of such hearings. Attorneys
representing inmates 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 interviewed by DOCCS
investigators are also sometimes denied. In the most extreme of circum-
stances in which all of the evidence considered by a DOCCS hearing offi-
cer 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
inmates 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 inmate 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 inmates frequently deal with psychiatric
records that cannot be revealed to their clients so they are familiar
with the restrictions on sharing confidential information. Providing
confidential records to a New York State licensed attorney 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 inmate
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 inmate who is the subject of the disciplinary
hearing. There is no risk to the security of the prison system in
providing attorneys with inmate records in the context of an appeal of a
disciplinary hearing where redisclosure of the information in the
records to persons not otherwise authorized to obtain such records is
prohibited.

 
PRIOR LEGISLATIVE HISTORY:

S. 2910 of 2021-22: Referred to Crime Victims, Crime and Correction;

S. 2674-A of 2019-20: Referred to Crime Victims, Crime and Correction;

2014-2020: Assembly bill Reported to Third Reading

 
FISCAL IMPLICATIONS:

None

 
LOCAL FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.