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This entry was published on 2017-08-18
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Options for confidential disclosure
Education (EDN) CHAPTER 16, TITLE 7, ARTICLE 129-B
§ 6446. Options for confidential disclosure. 1. In accordance with
this article, every institution shall ensure that reporting individuals
have the following:

a. Information regarding privileged and confidential resources they
may contact regarding domestic violence, dating violence, stalking or
sexual assault;

b. Information about counselors and advocates they may contact
regarding domestic violence, dating violence, stalking, or sexual

c. A plain language explanation of confidentiality which shall, at a
minimum, include the following provision: "Even {Institution} offices
and employees who cannot guarantee confidentiality will maintain your
privacy to the greatest extent possible. The information you provide to
a non-confidential resource will be relayed only as necessary for the
Title IX Coordinator to investigate and/or seek a resolution.";

d. Information about how the institution shall weigh a request for
confidentiality and respond to such a request. Such information shall,
at a minimum, include that if a reporting individual discloses an
incident to an institution employee who is responsible for responding to
or reporting domestic violence, dating violence, stalking, or sexual
assault but wishes to maintain confidentiality or does not consent to
the institution's request to initiate an investigation, the Title IX
Coordinator must weigh the request against the institution's obligation
to provide a safe, non-discriminatory environment for all members of its
community. The institution shall assist with academic, housing,
transportation, employment, and other reasonable and available
accommodations regardless of reporting choices;

e. Information about public awareness and advocacy events, including
guarantees that if an individual discloses information through a public
awareness event such as candlelight vigils, protests, or other public
event, the institution is not obligated to begin an investigation based
on such information. The institution may use the information provided at
such an event to inform its efforts for additional education and
prevention efforts;

f. Information about existing and available methods to anonymously
disclose including, but not limited to information on relevant
confidential hotlines provided by New York state agencies and
not-for-profit entities;

g. Information regarding institutional crime reporting including, but
not limited to: reports of certain crimes occurring in specific
geographic locations that shall be included in the institution's annual
security report pursuant to the Clery Act, 20 U.S.C. 1092(f), in an
anonymized manner that identifies neither the specifics of the crime nor
the identity of the reporting individual; that the institution is
obligated to issue timely warnings of crimes enumerated in the Clery Act
occurring within relevant geography that represent a serious or
continuing threat to students and employees, except in those
circumstances where issuing such a warning may compromise current law
enforcement efforts or when the warning itself could potentially
identify the reporting individual; that a reporting individual shall not
be identified in a timely warning; that the Family Educational Rights
and Privacy Act, 20 U.S.C. 1232g, allows institutions to share
information with parents when i. there is a health or safety emergency,
or ii. when the student is a dependent on either parent's prior year
federal income tax return; and that generally, the institution shall not
share information about a report of domestic violence, dating violence,
stalking, or sexual assault with parents without the permission of the
reporting individual.

2. The institution may take proactive steps, such as training or
awareness efforts, to combat domestic violence, dating violence,
stalking or sexual assault in a general way that does not identify those
who disclose or the information disclosed.

3. If the institution determines that an investigation is required, it
shall notify the reporting individuals and take immediate action as
necessary to protect and assist them.

4. The institution should seek consent from reporting individuals
prior to conducting an investigation. Declining to consent to an
investigation shall be honored unless the institution determines in good
faith that failure to investigate does not adequately mitigate a
potential risk of harm to the reporting individual or other members of
the community. Honoring such a request may limit the institution's
ability to meaningfully investigate and pursue conduct action against an
accused individual. Factors used to determine whether to honor such a
request include, but are not limited to:

a. Whether the accused has a history of violent behavior or is a
repeat offender;

b. Whether the incident represents escalation in unlawful conduct on
behalf of the accused from previously noted behavior;

c. The increased risk that the accused will commit additional acts of

d. Whether the accused used a weapon or force;

e. Whether the reporting individual is a minor; and

f. Whether the institution possesses other means to obtain evidence
such as security footage, and whether available information reveals a
pattern of perpetration at a given location or by a particular group.