S T A T E   O F   N E W   Y O R K
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                                  5714

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 19, 2009
                               ___________

Introduced  by  M. of A. BRENNAN -- Multi-Sponsored by -- M. of A. PHEF-
  FER, ROBINSON -- read once and referred to the  Committee  on  Govern-
  mental Operations

AN  ACT to amend the New York city charter, in relation to the confiden-
  tiality of information obtained by a city employee in  the  course  of
  official duties

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative intent.  In  August  1989,  Mayor  Edward  Koch
issued  Executive  Order  No.  124,  which prohibits any city officer or
employee from transmitting information regarding the immigration  status
of  any  individual  to  federal  immigration  authorities  except under
certain circumstances. Mayors David Dinkins and Rudolph  Giuliani  reis-
sued  this executive order. In a decision stemming from the city's chal-
lenge to the constitutionality of two federal  statutes  that  preempted
the  Executive  Order,  the  Second  Circuit  Court of Appeals, although
affirming the lower court's dismissal of the city's lawsuit,  also  left
open the possibility that a generalized confidentiality policy necessary
to  the  performance  of  legitimate municipal functions might survive a
constitutional challenge. CITY OF NEW YORK V.  UNITED STATES OF AMERICA,
179 F 3rd 29 (1999), CERT DENIED 528 US 1115 (2000). In fact, the Second
Circuit Court of Appeals, recognizing that the city's concerns regarding
the obtaining of confidential information are not insubstantial,  stated
that  the "obtaining of pertinent information, which is essential to the
performance of a wide variety of state and local governmental functions,
may in some cases be difficult or  impossible  if  some  expectation  of
confidentiality is not preserved. Preserving confidentiality may in turn
require that state and local governments regulate the use of such infor-
mation by their employees."
  Recognizing the importance of keeping certain information confidential
that city employees may obtain in the course of fulfilling their duties,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05252-01-9
              

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as  well  as  adhering  to  the concerns of the second circuit, the city
council finds that a general policy  limiting  the  disclosure  of  many
types of confidential information is warranted. Confidentiality is vital
when  the  city  obtains  such  information as an individual's health or
disability status, sexual orientation, immigration status, status  as  a
crime  victim  or  witness,  or other information. Without the assurance
that such information will be kept confidential, it  will  be  difficult
and  oftentimes  impossible  for  the  city to perform certain essential
functions. By creating a presumption of confidentiality with  regard  to
certain  information,  and  establishing  a mechanism that regulates the
disclosure of such information, the city will go a long way to  insuring
that  vital  services are provided to all people who reside in, work in,
or visit this city.
  S 2. The New York city charter is amended by adding a new section 1113
to read as follows:
  S 1113. DISCLOSURE OF CONFIDENTIAL INFORMATION BY CITY  EMPLOYEES.  A.
DEFINITIONS.  (1) "CONFIDENTIAL INFORMATION" MEANS ANY INFORMATION MAIN-
TAINED OR OBTAINED BY A CITY AGENCY OR EMPLOYEE CONCERNING  AN  INDIVID-
UAL'S  HEALTH  OR  DISABILITY  STATUS, INCOME TAX RECORDS, SEXUAL ORIEN-
TATION, STATUS AS A VICTIM OF  DOMESTIC  VIOLENCE,  STATUS  AS  A  CRIME
VICTIM  OR WITNESS, PUBLIC ASSISTANCE STATUS, IMMIGRATION STATUS, OR ANY
INFORMATION THAT IS OTHERWISE PROTECTED FROM DISCLOSURE BY ANY PROVISION
OF FEDERAL, STATE OR LOCAL LAW.
  (2) "LINE WORKER" MEANS ANY PERSON EMPLOYED BY ANY CITY  AGENCY  WHOSE
DUTIES INVOLVE CONTACT WITH THE PUBLIC.
  B.  PROCEDURE  FOR  THE  DISCLOSURE  OF  CONFIDENTIAL INFORMATION. (1)
EXCEPT AS PROVIDED IN PARAGRAPH TWO OF THIS SUBDIVISION, NO CITY OFFICER
OR EMPLOYEE SHALL DISCLOSE CONFIDENTIAL INFORMATION TO  ANY  ONE  EXCEPT
ANOTHER CITY OFFICER OR EMPLOYEE ACTING IN THE SCOPE OF HIS OR HER OFFI-
CIAL DUTIES.
  (2)  CONFIDENTIAL  INFORMATION MAY BE DISCLOSED OTHER THAN AS PROVIDED
IN PARAGRAPH ONE OF THIS SUBDIVISION ONLY IF:
  (A) THE OFFICER'S OR EMPLOYEE'S AGENCY IS REQUIRED BY LAW TO  DISCLOSE
SUCH  CONFIDENTIAL  INFORMATION,  PROVIDED  THAT THE DISCLOSURE SHALL BE
LIMITED TO THAT REQUIRED BY LAW; OR
  (B) THE OFFICER'S OR EMPLOYEE'S AGENCY HAS BEEN AUTHORIZED, IN WRITING
SIGNED BY THE INDIVIDUAL OR, IF THE INDIVIDUAL IS  A  MINOR  OR  IS  NOT
COMPETENT,  THE  INDIVIDUAL'S PARENT OR LEGAL GUARDIAN, TO DISCLOSE SUCH
CONFIDENTIAL INFORMATION, PROVIDED THAT THE DISCLOSURE SHALL BE  LIMITED
TO THAT AUTHORIZED IN WRITING BY THE INDIVIDUAL; OR
  (C)  THERE IS REASONABLE SUSPICION OR PROBABLE CAUSE TO BELIEVE THAT A
PERSON IS ENGAGING IN CRIMINAL ACTIVITY AND THE DISCLOSURE OF  CONFIDEN-
TIAL INFORMATION IS NECESSARY TO COOPERATE WITH A LAW ENFORCEMENT AGENCY
INVESTIGATING THAT CRIMINAL ACTIVITY; OR
  (D) SUCH CONFIDENTIAL INFORMATION IS TO BE USED SOLELY FOR THE PURPOSE
OF  COMPILING  STATISTICAL  INFORMATION  BY  A  FEDERAL, STATE, OR LOCAL
GOVERNMENT AGENCY, PROVIDED THAT THE DISCLOSURE SHALL BE LIMITED TO THAT
NECESSARY TO COMPILE SUCH STATISTICAL INFORMATION, AND PROVIDED THAT THE
RECIPIENT OF THE INFORMATION  ENSURES  IN  WRITING  IN  ADVANCE  OF  ANY
DISCLOSURE  THAT  THE  CONFIDENTIAL  INFORMATION  WILL  NOT  BE  FURTHER
DISCLOSED TO ANY AGENCY OR INDIVIDUAL.
  C. PROCEDURE FOR COLLECTION AND RECORDING OF CONFIDENTIAL INFORMATION.
NO CITY OFFICER OR EMPLOYEE  SHALL  MAKE  INQUIRIES  TO  ANY  INDIVIDUAL
APPLYING  FOR  OR  RECEIVING  ANY SERVICE OR BENEFIT, ON BEHALF OF ONE'S
SELF OR ANOTHER, REGARDING CONFIDENTIAL INFORMATION UNLESS  SUCH  CONFI-

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DENTIAL  INFORMATION IS SPECIFICALLY REQUIRED BY FEDERAL OR STATE LAW AS
A CONDITION OF RECEIPT OF SUCH SERVICE OR BENEFIT.
  (1)  WHERE  CONFIDENTIAL  INFORMATION IS A CONDITION OF RECEIPT OF THE
SERVICE OR BENEFIT, THE CITY OFFICER OR EMPLOYEE SHALL MAKE  ONLY  THOSE
INQUIRIES  NECESSARY  TO  DETERMINE WHETHER AN APPLICANT OR RECIPIENT IS
QUALIFIED FOR SUCH SERVICE OR BENEFIT.
  (2) THIS SECTION SHALL APPLY TO ANY INFORMATION, QUESTIONNAIRE, INTER-
VIEW SHEET OR OTHER FORM  USED  IN  RELATION  TO  BENEFITS  OR  SERVICES
PROVIDED BY THE CITY.
  (3) NO CITY OFFICER OR EMPLOYEE SHALL RECORD INFORMATION REGARDING THE
IMMIGRATION  STATUS  OF  AN APPLICANT FOR OR RECIPIENT OF ANY SERVICE OR
BENEFIT UNLESS REQUIRED BY FEDERAL OR STATE LAW. WHERE FEDERAL OR  STATE
LAW REQUIRES THE RECORDING OF CONFIDENTIAL INFORMATION, ONLY THAT INFOR-
MATION SPECIFICALLY REQUIRED SHALL BE RECORDED.
  D.  DESIGNATION  OF OFFICER RESPONSIBLE FOR AUTHORIZING THE RELEASE OF
CONFIDENTIAL INFORMATION. THE HEAD OR  GOVERNING  BODY  OF  EACH  AGENCY
SHALL  DESIGNATE ONE OR MORE PERSONS WITH SUPERVISORY AUTHORITY WHO HAVE
AUTHORITY TO APPROVE THE RELEASE OF CONFIDENTIAL INFORMATION. THE DESIG-
NATION SHALL INCLUDE THE NAME, SPECIFIC JOB TITLE, TELEPHONE NUMBER  AND
BUSINESS  ADDRESS  OF  SUCH  ACCESS OFFICER. IN APPROVING THE RELEASE OF
CONFIDENTIAL  INFORMATION  THE  DESIGNATED  OFFICER  SHALL  SPECIFY  THE
SPECIFIC  INFORMATION  TO  BE  DISCLOSED  AND THE PERSONS OR ENTITIES TO
WHICH SUCH DISCLOSURE SHALL BE MADE. THE DESIGNATED OFFICER SHALL ENSURE
THAT THE DISCLOSURE IS AUTHORIZED BY LAW AND  IS  LIMITED  IN  SCOPE  AS
PROVIDED BY LAW.
  E.  DISCLOSURE  BY  LINE  WORKERS OF CONFIDENTIAL INFORMATION. NO LINE
WORKER EMPLOYED BY A CITY AGENCY SHALL DISCLOSE CONFIDENTIAL INFORMATION
WITHOUT OBTAINING PRIOR  WRITTEN  APPROVAL  OF  THE  DESIGNATED  OFFICER
RESPONSIBLE  FOR AUTHORIZING THE RELEASE OF CONFIDENTIAL INFORMATION FOR
THAT AGENCY.
  F. OTHER LAWS RESPECTING  CONFIDENTIALITY.  NOTHING  IN  THIS  SECTION
REDUCES OR ABRIDGES ANY OTHER PROTECTION IN FEDERAL, STATE, OR LOCAL LAW
RESPECTING THE CONFIDENTIALITY OF INFORMATION.
  S  3.  Severability.  If  any  section, subdivision, sentence, clause,
phrase or other portion of this act is, for any reason, declared  uncon-
stitutional  or  invalid, in whole or in part, by any court of competent
jurisdiction, such portion shall be deemed severable, and such unconsti-
tutionality or invalidity shall not affect the validity of the remaining
portions of this act, which remaining portions shall  continue  in  full
force and effect.
  S 4. This act shall take effect immediately.