Senate Bill S940

                                 
BILL NUMBER: S940

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the executive law and the education law, in relation to
prohibiting mandatory disclosure of a criminal history record in certain
circumstances

 
PURPOSE:

To make it unlawful discriminatory practice for an employer to require a
job applicant to disclose his or her criminal history record obtained
from the Division of Criminal Justice Services as a requirement for
consideration of employment.

 
SUMMARY OF PROVISIONS:

Section I of the bill amends subdivision 15 of section 256 of the execu-
tive law to make it an unlawful discriminatory practice for a person,
agency, bureau, corporation, state or political subdivision to require
an individual to provide a copy of his or her criminal history record
              

obtained from the Division of Criminal Justice Services (DCJS).

Section II of the bill adds a new paragraph (0 to subdivision 3 of
section 313 of the education law to prohibit an institution of education
to require an individual provide his or her DCJS criminal history record
to such institution.

Section III sets forth the effective date.

 
JUSTIFICATION:

As the central repository of criminal history information in New York,
the Division of Criminal Justice Services (DCJS) is charged with main-
taining finger-print based criminal history records of individuals
arrested for criminal offenses in New York State. See generally, Execu-
tive Law § 837. The DCJS criminal history record (DCJS record.) is
confidential and is available to law enforcement agencies, courts and
entities that have statutory access to the records. See Executive Law §
836(6),(8). In addition, individuals can obtain their personal DCJS
record. See 9 NYCRP. 60.50.1 (establishing procedures for people who are
not incarcerated to access their personal record); Executive Law § 837
(8-a) (establishing the right for incarcerated people to access their
personal DCJS records without having to pay a fee), The personal DCJS
record that is disclosed to individuals is unsuppressed, and therefore
includes arrests that have been scaled under Criminal Procedure Law
(CPL) § 160.55, or § 160,58, and arrests that have resulted in Youthful
Offender adjudication and deemed confidential under CPL § 720.35, to
ensure the confidentiality of the personal DCJS record; DCJS permits
individuals to authorize re-disclosure of their personal record only to
their attorneys.

The confidential nature of the DCJS record is reinforced by those stat-
utes that authorize disclosure to non-law enforcement entities.  For
example, Executive law § 837-n allows certain employers to access DCJS
of applicants for caregiver positions. Subsection (2) (b) of this
provision specifically states that the DCJS record is not to be redis-
closed, and that "any person who rediscloses such reports in violation
of this section shall be guilty of a class A misdemeanor."  In addition,
DCJS's website includes warnings about the confidentiality of its crimi-
nal history record, stating for example the following: "Note: a personal
record review cannot be requested for another person in order to deter-
mine if that person has a criminal history."

Despite the clear import of these laws and policies, a growing number of
entities are trying to bypass the confidential nature of the DCJS record
by requiring applicants to obtain and redisclose their personal DCJS
records. For example, at least two colleges, Empire State College and
SUNY Plattsburgh, require applicants to re-disclose their personal DCJS
records as a condition of admission, and the Office of Alcohol and
Substance Abuse Services (OASAS) had maintained a policy requiring
applicants for certification or recertification as an alcohol and
substance abuse counselor to redisclose their personal DCJS record.
Because the personal DCJS record is unsuppressed, the entities engaging
in this practice improperly obtain information about sealed or confiden-
tial arrests.

Taken as a whole, the existing laws seem to prohibit this practice.  But
there is not one provision than an applicant can point to in rebuffing
an entity's request or requirement that the personal DCJS record be
redisclosed. Nor do entities that undermine the confidentiality of the
DCJS record in this. manner incur a penalty.  In addition, because there
is not one provision explicitly prohibiting this practice, many appli-
cants are not aware of the illegal nature of the request disclose their
personal DCJS records and comply without fully understanding the conse-
quences of doing so.

This proposed legislation seeks to protect the confidentiality of the
DCJS record explicitly providing that entities cannot ask or require
applicants to re-disclose their personal DCJS records. Specifically, the
proposed legislation:

1. Amends Executive Law g 837 by including new subsection (8-d) which
explicitly prohibits any entity from asking or requiring applicants to
re-disclose their personal DCJS record.

2. Ensures that "entity" is broadly defined by looking to Executive
(Human Rights) Law for definitions of entities in the domains of employ-
ment and housing, and to the regulations promulgated pursuant to the
Education Law for the definition of institutions of higher education.

3. Provides for full enforcement of this prohibition by making it a
class A misdemeanor for any "person" who fails to comply. "Person" is
defined by penal Law f 10.00(7) to include not only human beings, but
also public or private corporations, unincorporated associations, part-
nerships, the governments and governmental instrumentalities,- See
generally People v. Highgate LTC management, 09 A.D,3d 135 (2009) (noth-
ing how broadly "person" is defined under Penal Law f 10,00(7)).  This
penalty parallels the penalty set forth in Executive Law f 637-n for
unauthorized redisclosure of the DCJS record.

 
LEGISLATIVE HISTORY:

2021-22: S1793 - Referred to Investigations and Government Operations

 
FISCAL IMPACT ON THE STATE:
None.

 
EFFECTIVE DATE:
This act shall take effect one hundred twenty days after it shall have
become law.