Senate Bill S3398A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3398--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 6, 2019
                                ___________
 
 Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
   printed to be  committed  to  the  Committee  on  Codes  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT  to  amend  the civil rights law and the public officers law, in
   relation to excluding video camera recordings  from  cameras  worn  or
   used  by police from being included as personnel records; and to amend
   the criminal procedure law, in  relation  to  making  certain  records
   available  to  independent  review boards investigating allegations of
   police or law enforcement misconduct
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 50-a of the civil rights law is amended by adding a
 new subdivision 5 to read as follows:
   5.  A.  THE  PROVISIONS  OF THIS SECTION SHALL NOT APPLY TO RECORDINGS
 MADE   OF   POLICE   OFFICERS,   FIREFIGHTERS,   FIREFIGHTER/PARAMEDICS,
 CORRECTION  OFFICERS  OR PEACE OFFICERS IN THE COURSE OF DUTY, INCLUDING
 RECORDINGS MADE BY BODY CAMERAS WORN BY AN  OFFICER,  DASHBOARD  CAMERAS
 PLACED  ON  ANY  PART  OF  AN OFFICER'S MOTOR VEHICLE, TRUCK, BICYCLE OR
 OTHER VEHICLE, CAMERAS MOUNTED ON A TASER OR OTHER WEAPON, OR ANY  OTHER
 GOVERNMENT-OPERATED   RECORDING  DEVICE,  OR  THE  METADATA  FROM  THOSE
 RECORDINGS.
   B. ANY RECORDING, AS SPECIFIED IN PARAGRAPH A OF THIS SUBDIVISION  AND
 RELEASED  PURSUANT  TO  SECTION EIGHTY-SEVEN OF THE PUBLIC OFFICERS LAW,
 SHALL HAVE ALL IDENTIFYING DETAILS OF ALL PERSONS IN THE VIDEO REDACTED,
 INCLUDING BUT NOT LIMITED TO,  FACIAL  FEATURES  AND  VOICES  AND  OTHER
 PERSONAL  INFORMATION AS DEFINED IN SUBDIVISION SEVEN OF SECTION NINETY-
 TWO OF THE PUBLIC OFFICERS LAW.
   C. NOTHING IN THIS SECTION SHALL MODIFY THE RIGHTS OF LITIGANTS  IN  A
 CIVIL OR CRIMINAL ACTION TO ACCESS RECORDINGS OR METADATA.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01365-02-9
              

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   D.  NOTHING  IN THIS SECTION SHALL BE CONSTRUED TO DISALLOW RECORDINGS
 OR METADATA FROM BEING USED FOR DISCIPLINARY, HIRING OR OTHER  PERSONNEL
 DECISIONS.
   E.  ANYONE WHO REQUESTS A RECORDING OR METADATA, AS SPECIFIED IN PARA-
 GRAPH A OF THIS SUBDIVISION AND RELEASED PURSUANT TO SECTION EIGHTY-SEV-
 EN OF THE PUBLIC OFFICERS LAW, MAY ALSO REQUEST ANY OR  ALL  RECORDS  OF
 AGENCIES AS DEFINED IN SUBDIVISIONS THREE AND FOUR OF SECTION EIGHTY-SIX
 OF  THE  PUBLIC  OFFICERS LAW, NECESSARY ONLY TO IDENTIFY ANY OFFICER IN
 THE RECORDING OR METADATA.
   § 2. The opening paragraph of section 1-a of the civil rights  law  is
 designated  subdivision  1  and  a new subdivision 2 is added to read as
 follows:
   2. THE TERM "RECORDING", AS  USED  IN  THIS  CHAPTER,  SHALL  MEAN  AN
 ORIGINAL PHOTOGRAPHIC RECORD, DISC, TAPE, AUDIO OR VIDEO CASSETTE, WIRE,
 FILM,  HARD DRIVE, FLASH DRIVE, MEMORY CARD OR OTHER DATA STORAGE DEVICE
 OR ANY OTHER MEDIUM ON WHICH SUCH SOUNDS, IMAGES,  OR  BOTH  SOUNDS  AND
 IMAGES  ARE OR CAN BE RECORDED OR OTHERWISE STORED, OR A COPY OR REPROD-
 UCTION THAT DUPLICATES IN WHOLE OR IN PART THE ORIGINAL.
   § 3. Paragraph (c) of subdivision 2 of section 89 of the public  offi-
 cers  law,  as amended by section 11 of part U of chapter 61 of the laws
 of 2011, is amended to read as follows:
   (c) Unless otherwise provided by this article, disclosure shall not be
 construed to constitute an  unwarranted  invasion  of  personal  privacy
 pursuant to paragraphs (a) and (b) of this subdivision:
   i. when identifying details are deleted OR REDACTED;
   ii.  when  the person to whom a record pertains consents in writing to
 disclosure;
   iii. when upon presenting reasonable proof of identity, a person seeks
 access to records pertaining to him or her; or
   iv. when a record or group of records relates to the right,  title  or
 interest  in real property, or relates to the inventory, status or char-
 acteristics of real property, in which  case  disclosure  and  providing
 copies  of such record or group of records shall not be deemed an unwar-
 ranted invasion of personal privacy, provided that nothing herein  shall
 be  construed to authorize the disclosure of electronic contact informa-
 tion, such as an e-mail address or a social network username,  that  has
 been  collected  from  a  taxpayer under section one hundred four of the
 real property tax law.
   § 4. Paragraph (d) of subdivision 1 of section 160.50 of the  criminal
 procedure law, as amended by chapter 449 of the laws of 2015, is amended
 to read as follows:
   (d)  such  records shall be made available to the person accused or to
 such person's designated agent, and shall be made  available  to  (i)  a
 prosecutor in any proceeding in which the accused has moved for an order
 pursuant  to  section  170.56  or  210.46 of this chapter, or (ii) a law
 enforcement agency upon ex parte motion in any superior court, or in any
 district court, city court or the criminal court of the city of New York
 provided that such court sealed the record, if such agency  demonstrates
 to the satisfaction of the court that justice requires that such records
 be  made  available to it, or (iii) any state or local officer or agency
 with responsibility for the issuance of licenses to possess  guns,  when
 the  accused  has  made  application for such a license, or (iv) the New
 York state department of corrections and community supervision when  the
 accused is on parole supervision as a result of conditional release or a
 parole  release  granted  by the New York state board of parole, and the
 arrest which is the subject of the inquiry is one which  occurred  while

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 the  accused was under such supervision, or (v) any prospective employer
 of a police officer or peace officer  as  those  terms  are  defined  in
 subdivisions  thirty-three and thirty-four of section 1.20 of this chap-
 ter, in relation to an application for employment as a police officer or
 peace  officer; provided, however, that every person who is an applicant
 for the position of police officer or peace officer shall  be  furnished
 with a copy of all records obtained under this paragraph and afforded an
 opportunity  to  make  an  explanation  thereto,  or  (vi) the probation
 department responsible for supervision of the accused  when  the  arrest
 which  is  the  subject  of  the inquiry is one which occurred while the
 accused was under such supervision, OR (VII) AN INDEPENDENT REVIEW BOARD
 INVESTIGATING ALLEGATIONS OF POLICE OR LAW ENFORCEMENT MISCONDUCT, WHERE
 SUCH RECORDS PERTAIN TO THE ALLEGATIONS BEING INVESTIGATED; and
   § 5. Paragraph (d) of subdivision 1 of section 160.55 of the  criminal
 procedure law, as amended by chapter 449 of the laws of 2015, is amended
 to read as follows:
   (d) the records referred to in paragraph (c) of this subdivision shall
 be  made  available to the person accused or to such person's designated
 agent, and shall be made available to (i) a prosecutor in any proceeding
 in which the accused has moved for an order pursuant to  section  170.56
 or  210.46  of  this  chapter,  or (ii) a law enforcement agency upon ex
 parte motion in any superior court, or in any district court, city court
 or the criminal court of the city of New York provided that  such  court
 sealed  the  record,  if such agency demonstrates to the satisfaction of
 the court that justice requires that such records be made  available  to
 it,  or  (iii)  any state or local officer or agency with responsibility
 for the issuance of licenses to possess guns, when the accused has  made
 application for such a license, or (iv) the New York state department of
 corrections  and  community supervision when the accused is under parole
 supervision as a result of conditional release or parole release granted
 by the New York state board of  parole  and  the  arrest  which  is  the
 subject of the inquiry is one which occurred while the accused was under
 such supervision, or (v) the probation department responsible for super-
 vision  of  the  accused  when  the  arrest  which is the subject of the
 inquiry is one which occurred while the accused was  under  such  super-
 vision, or (vi) a police agency, probation department, sheriff's office,
 district attorney's office, department of correction of any municipality
 and  parole  department,  for  law  enforcement purposes, upon arrest in
 instances in which the individual stands convicted of harassment in  the
 second  degree, as defined in section 240.26 of the penal law, committed
 against a member of the same family or household as  the  defendant,  as
 defined in subdivision one of section 530.11 of this chapter, and deter-
 mined  pursuant  to subdivision eight-a of section 170.10 of this title,
 OR (VII) AN INDEPENDENT REVIEW BOARD INVESTIGATING ALLEGATIONS OF POLICE
 OR LAW ENFORCEMENT MISCONDUCT, WHERE SUCH RECORDS PERTAIN TO THE ALLEGA-
 TIONS BEING INVESTIGATED; and
   § 6. Subdivision 6 of section 160.58 of the criminal procedure law, as
 added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
 amended to read as follows:
   6. Records sealed pursuant to this subdivision shall be made available
 to:
   (a) the defendant or the defendant's designated agent;
   (b)  qualified  agencies,  as  defined  in subdivision nine of section
 eight hundred thirty-five of the executive law, and  federal  and  state
 law  enforcement  agencies,  when  acting  within the scope of their law
 enforcement duties; or

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   (c) any state or local officer or agency with responsibility  for  the
 issuance  of licenses to possess guns, when the person has made applica-
 tion for such a license; or
   (d)  any  prospective employer of a police officer or peace officer as
 those terms are defined in subdivisions thirty-three and thirty-four  of
 section  1.20 of this chapter, in relation to an application for employ-
 ment as a police officer or peace officer; provided, however, that every
 person who is an applicant for the position of police officer  or  peace
 officer  shall  be  furnished  with a copy of all records obtained under
 this paragraph and afforded an opportunity to make an explanation there-
 to[.]; OR
   (E) AN INDEPENDENT REVIEW BOARD INVESTIGATING ALLEGATIONS OF POLICE OR
 LAW ENFORCEMENT MISCONDUCT, WHERE SUCH RECORDS PERTAIN  TO  THE  ALLEGA-
 TIONS BEING INVESTIGATED.
   § 7. Subdivision 9 of section 160.59 of the criminal procedure law, as
 added  by  section  48 of part WWW of chapter 59 of the laws of 2017, is
 amended to read as follows:
   9. Records sealed pursuant to this section shall be made available to:
   (a) the defendant or the defendant's designated agent;
   (b) qualified agencies, as defined  in  subdivision  nine  of  section
 eight  hundred  thirty-five  of the executive law, and federal and state
 law enforcement agencies, when acting within  the  scope  of  their  law
 enforcement duties; or
   (c)  any  state or local officer or agency with responsibility for the
 issuance of licenses to possess guns, when the person has made  applica-
 tion for such a license; or
   (d)  any  prospective employer of a police officer or peace officer as
 those terms are defined in subdivisions thirty-three and thirty-four  of
 section  1.20 of this chapter, in relation to an application for employ-
 ment as a police officer or peace officer; provided, however, that every
 person who is an applicant for the position of police officer  or  peace
 officer  shall  be  furnished  with a copy of all records obtained under
 this paragraph and afforded an opportunity to make an explanation there-
 to; or
   (e) the criminal justice information services division of the  federal
 bureau  of  investigation,  for the purposes of responding to queries to
 the national instant criminal background check system regarding attempts
 to purchase or otherwise take possession of firearms, as defined  in  18
 USC 921 (a) (3)[.]; OR
   (F) AN INDEPENDENT REVIEW BOARD INVESTIGATING ALLEGATIONS OF POLICE OR
 LAW  ENFORCEMENT  MISCONDUCT,  WHERE SUCH RECORDS PERTAIN TO THE ALLEGA-
 TIONS BEING INVESTIGATED.
   § 8. This act shall take effect immediately.