TITLE OF BILL: An act to amend the family court act, in relation to the confidentiality and expungement of records in juvenile delinquency cases in the family court
PURPOSE: This bill makes several changes to the Family Court Act to clarify and protect the record-related rights of children arrested as juvenile delinquents or those arrested as juvenile offenders and adolescent offenders whose cases are subsequently removed to family court. Protecting children from collateral consequences related to juvenile records is consistent with the rehabilitative purpose of the Family Court Act. The bill requires confidentiality for all records created as a result of juvenile arrests and family court cases. The bill further defines which specific records would be considered juvenile delinquency records and how such records should be maintained or expunged by the court and other government entities.
SUMMARY OF PROVISIONS: Section one amends the Family Court Act (FCA) by adding a new section, 301.5, to make clear that juvenile delinquency records shall be confi- dential and shall not be released to any "person, department, agency, or entity." The section defines "juvenile delinquency records" and enumer- ates specific categories of records, such as: juvenile legal files, law enforcement records, state criminal justice system records, and personal social records. The section includes a mechanism for requesting access to confidential records through notice and hearing. The section also creates a civil cause of action for those aggrieved by a violation of the outlined protections. Section two amends FCA § 354.1(1) and (2) to account for recent legisla- tive changes that raised the age of criminal prosecution ("Raise the Age" law) and raised the minimum age of juvenile delinquency jurisdic- tion ("Raise the Lower Age" law). The current statute governs the retention and destruction of fingerprints and photographs of young people arrested as delinquents or whose cases initiate as juvenile offenders but are subsequently removed to family court pursuant to arti- cle 735 or 722 of the criminal procedure law. The bill would extend those provisions to cases that start as adolescent offenders but are removed to family court. The bill also removes the age "eleven" from both subsections (1) and (2). Section two also adds subdivision (8) to FCA § 354.1. This section requires the destruction of all fingerprints, palmprints, photographs, and related information obtained pursuant to section 306.1 upon the expungement of a juvenile delinquency adjudication pursuant to section 375.1 or 375.2. Section two also adds subdivision (9) to FCA § 354.1. This amendment prohibits retention of any juvenile DNA or other genetic material in any database maintained by a government entity other than those used for parentage, juvenile offender, or adolescent offender proceedings. Section three amends FCA § 375.1 to require automatic expungement, not merely sealing, for cases terminated in favor of the accused young person, as well as for adjudications based upon the now-repealed mari- juana and loitering for the purposes of prostitution crimes under former sections 221.15, 221.20, 221.35, 221.40, 240.36, and 240.37 of the penal law. This section also applies to individuals who were previously adju- dicated delinquent for an act committed while under the age of twelve, other than the acts enumerated in section 301.2. An agreement to forgo the expungement may not be a condition of an adjournment in contem- plation of dismissal. Section Three instructs those entities maintaining records and those who are the subjects of juvenile records of the effects of expungement. Recognizing that local probation departments must check prior records of adjusted cases under Family Court Act § 308.1(4), local probation departments would be permitted to seal their records from public view and access them solely for that purpose. The proposal calls for automatic vacatur, dismissal, and expungement for those previously adjudicated delinquent for acts that are no longer considered crimes and automatic expungement for juvenile records of respondents in whose favor delinquency proceedings were terminated prior to the enactment of the bill. Section four amends FCA § 375.2 to replace sealing with expungement, clarify expungement by motion, and create automatic expungement for juvenile delinquency adjudications. This section expands eligibility for expungement to all delinquency adjudications, regardless of the offense. It also amends the jurisdictional timing for filing a motion to expunge from the age of eighteen to any time after the conclusion of the dispo- sition. An agreement to forgo expungement may not be a condition of a plea or admission to a reduced charge. This section adds explicit factors that the court must weigh when deciding a motion for expunge- ment, including, but not limited to, the best interest of the person, nature of offense, and adverse consequences resulting from retention of the record. Once a youth reaches the age of 21, all records relating to a juvenile delinquency adjudication must automatically be expunged. The section further requires all agencies involved in the adjudication of the case, from arrest to disposition, to affirm to the court that all paper and electronic copies of such records have been destroyed. Section five amends FCA § 381.2 to replace sealing with expungement in regard to the use of records in other courts. Section six amends FCA § 381.3 to replace "police" with "law enforce- ment" and defines law enforcement records. Subdivision 2 provides great- er protection of juvenile delinquency records maintained by law enforce- ment by requiring the destruction of records under specified circumstances consistent with the provisions of sections 375.1 and 375.2. The section clarifies the prohibition against law enforcement's use of its internal, confidential records without a court order pursuant to the new § 306.1. The section creates a civil cause of action for those aggrieved by violations of the outlined protections.
EXISTING LAW: FCA Article 3 governs juvenile delinquency proceedings in New York State. Article 3 provides for the automatic sealing of juvenile delin- quency records whenever the case results in a termination that is favor- able to the respondent, including cases that are dismissed or withdrawn. See § 375.1. The automatic sealing of "favorable" records is purely statutory and parallels similar criminal procedure law provisions. When the respondent has been adjudicated delinquent, the court may, in its discretion, order that the records be sealed after a motion has been made. Such motion may not be made until after the respondent's eigh- teenth birthday and so long as the adjudication was not for a designated felony. See § 375.2. Last, the court may exercise its inherent power to expunge a court record, though it arguably lacks the authority to order the expungement of non-court files, including of law enforcement records. See § 375.3. Discretionary sealing and expungement provisions codify Court of Appeals case law; ergo, the court would possess the power in the absence of a sealing statute. If a record is not sealed or expunged, the relevant documents are protected solely by the weak privacy provision found in FCA Section 166, to wit, they "shall not be open to indiscriminate public inspection." Section 166 applies indefinitely to cases which have yet to be dismissed or withdrawn, even though many dispositions are "favorable" to the respondent and will hence be ultimately sealed. The Section dates from 1922 and has not been significantly amended for close to a century. FCA Article 3 also governs the retention of juvenile fingerprints, photographs, and palmprints initially taken as a result of law enforce- ment action. See § 306.1. This provision currently applies to only juve- nile delinquencies and juvenile offender cases removed to family court. Such fingerprints are forwarded to and maintained by the Division of Criminal Justice Services (DCJS). If a case is disposed of in any manner other than an adjudication of juvenile delinquency for a felony, all fingerprints or information relating to the allegations obtained by DCJS shall be destroyed upon notification by the terminating entity (family court, department of probation, or presentment agency). See § 354.1. The family court shall notify DJCS of felony adjudications of juvenile delinquency, in which case the fingerprint profile will be maintained. See § 354.1(1). If the young person has no criminal convictions or pend- ing criminal actions, DCJS shall destroy all fingerprints upon their 21st birthday.
LEGISLATIVE HISTORY: 2021-22: 5.9228
JUSTIFICATION:
INTRODUCTION Records are created the instant a child comes into contact with law enforcement and the juvenile legal system. While records serve an impor- tant and functional role in aiding the court during the pendency of a case, this utility diminishes and is replaced with a prejudicial effect over time. Despite misconceptions that existing state confidentiality and sealing provisions provide adequate protections, young people face continuing stigma and are excluded from housing, educational, employment and other opportunities. See generally, J. Radice, "The Juvenile Record Myth," 106 Geo. L.J. 365 (2018). In New York, juvenile arrest, probation, prosecutorial, and court records follow youth into adulthood. The collateral consequences of those juvenile records significantly affect young people throughout their lives by impeding their ability to achieve gainful employment, serve in the military, enroll in higher education, obtain occupational licensing, or acquire citizenship. See, e.g., U.S. Dept. of Justice Office of Juvenile Justice and Delinquency Prevention, Expunging Juvenile Records: Misconceptions, Collateral Consequences, and Emerging Practices (Dec. 2020); Juvenile Law Center, Failed Policies, Forfeited Futures: Revisiting a Nationwide Scorecard on Juvenile Records (July 2020); M. Sobie, "A Life Sentence for Children: NY's Antiquated Prejudicial Juvenile Justice Record Provisions," N.Y.L.J. (Dec. 16, 2021). It is well-settled that it would be "antithetical to the purpose of the Family Court Act to maintain records which would not benefit society and would result in bringing unwarranted discrimination to a child's future." Dorothy D. v. New York City Prob. Dep't, 49 N.Y.2d 212, 215 (1980). The New York Court of Appeals clearly recognizes the myriad of negative consequences that encumber youth for whom records are kept. "That the very existence of (Family Court delinquency) records, despite provisions for confidentiality, may constitute a substantial impediment to entry into institutions of higher learning, government or private employment, the armed services, or the professions, cannot be seriously questioned." Id. at 213. The Court has repeatedly expressed that "(t)he overriding intent of the juvenile delinquency article is to empower the Family Court to intervene and positively impact the lives of troubled young people" and "to extinguish the causes of juvenile delinquency through rehabilitation" rather than to punish. Matter of Robert J. 2 N.Y.3d 339, 346 (2004); Matter of Quinton A., 49 N.Y.2d 328, 335 (1980). See also Matter of Emily P., 63 Misc. 3d 755, 833-34 (N.Y. Fain. Ct. 2019). Notwithstanding the rehabilitative intention of the Family Court Act, the current record -related provisions hann, rather than protect, young people long after the conclusion of their cases. In 2015, the American Bar Association issued the "Model Act Governing the Confidentiality and Expungement of Juvenile Delinquency Records." The "Model Act" calls for comprehensive protection of juvenile records by prioritizing confidentiality and the automatic expungement of all records generated by juvenile system involvement, expanding beyond just court files. Many states follow the Model Act by prioritizing expunge- ment and ensuring confidentiality for all juvenile records. See, e.g., West's Colorado Revised Statutes § 19-1306; Illinois Compiled Statutes § 405/5-915; Ohio Revised Code §§ 2151.355, 2151.356, 2151.358; Revised Code of Washington § 13.50.050; Delaware Code §§ 1014-1018; North Caro- lina General Statutes §§ 7B3200, 3201; Arizona Revised Statutes § 13-921; Arkansas Code §§ 927-309(b)(1)(A), (b)(2); West's California Code, Div. 2, C. 2, Art. 22, § 826(a); Connecticut General Statutes §§ 46b133a,46b-146; West's Florida Statutes § 943.0582; Minnesota Statutes § 260B.235(9); Pennsylvania Consolidated Statutes § 9123; West's Code of Virginia § 16-1-306. This proposal adopts many of the provisions set forth in the "Model Act" and is consistent with state and national trends to protect criminal records through "ban the box" and "clean slate" reforms. Too often, young people affected by the juvenile delinquency system are excluded from such movements and may have fewer legal protections than adults and "Youthful Offenders" in criminal court. This outcome runs counter to the purpose of Family Court and modern developmental science. Youth have the capacity for change and research confirms a significant majority of arrested children are never again charged with criminal activity, before or after attaining majority. See S. Shah, "Future Interrupted: The Collateral Damage Caused by Proliferation of Juvenile Records," Juvenile Law Center (Feb. 2016). As such, legislatures should consider measures that "equalize the wide disparity between the Family Courts and the criminal courts." M. Sobie, "A Life Sentence for Children: NY's Anti- quated Prejudicial Juvenile Justice Record Provisions," supra. This proposal aims to extend to New York's young people measures to alleviate the collateral consequences and lifelong stigma resulting from system involvement.
CONFIDENTIALITY Expungement, sealing, and confidentiality are three legally distinct record protections. Expungement requires permanent destruction of records, sealing requires courts to make records available to specific agencies but unavailable to the public, and confidentiality prevents dissemination, access, or use of records. This proposal incorporates a new confidentiality section, proposed Fami- ly Court Act § 301.6, to address the significant weaknesses in current law. See Schwawl v. Grant (2 Dept. 2008) 47 A.D.3d 698. In the absence of sealing, FCA § 166 is the only provision governing access to juvenile delinquency records. However, it does not ensure the confidentiality of those records. Indeed, as explained in the Practice Commentary of McKinney's Family Court Act: "A common assumption is that Family Court records are confidential. For better or for worse, that assumption is erroneous. The vague incomplete confidentiality provision of Section 166, which dates from the Family Court Act's predecessor code, the 1922 Children's Court Act, stops well short of full confidentiality. Using the phrase 'shall not be open to indiscriminate public inspection,' the section suggests that public discriminate or discriminating inspection is permitted... Perhaps more surprisingly, the section addresses "public" inspection, but is silent concerning non-public access, although records are often sought by employers, the government, or the respondent herself." Prof. Merril Sobie, Practice Commentary, McKinney's Family Ct. Act § 166. Section 166 leaves the door open to the dissemination of juvenile records by prosecution and police personnel, regardless of the case's ultimate outcome. Ironically, the records of Youthful Offenders who are prosecuted in the criminal courts are afforded a greater degree of confidentiality. See Criminal Procedure Law Section 720.35. Presently, young adults with juvenile records are unable to move about the world freely, without fear of their records being shared. Confiden- tiality should be a baseline protection for all juvenile delinquency records. Section One of this proposal accomplishes that. Unlike the current iteration of Family Court privacy provisions, "confidentiality" is explicit in § 301.6. The proposal mirrors the ABA "Model Act" Section IV(a), outlining the specific records that fall under the confidentiali- ty umbrella, and requires that records "shall not be open to inspection nor released to any person, department, agency, or entity." With the understanding that records are useful for certain court or government purposes, this proposal includes a mechanism for requesting access to confidential information through notice and hearing. This creates transparency regarding who is requesting access to what records and curtails surreptitious sharing of information by agencies to both internal and external parties. Finally, this proposal creates a civil cause of action for the violation of confidentiality requirements. Sanc- tions are necessary for enforcement, accountability and to redress potential harm. As of 2020, 34 states impose either civil or criminal sanctions for individual or agency failure to comply with confidentiali- ty protections. Juvenile Law Center, Failed Policies, Forfeited Futures: Revisiting a Nationwide Scorecard on Juvenile Records, supra.
DNA OR OTHER GENETIC MATERIAL Law enforcement officers often obtain DNA samples by consent or surrep- titiously, by offering arrested juveniles bottles of water, bubble gum, or cigarettes for inclusion in a local DNA index indefinitely. This practice has drawn significant concern from local and state legislators, community groups and citizens throughout the state. This proposal addresses the issue by prohibiting the retention of any juvenile DNA or other genetic material in any database maintained by a government enti- ty, other than those used for parentage, juvenile offender or adolescent offender proceedings.
EXPUNGEMENT Expungement is the only adequate and complete remedy to protect against the lasting consequences and future stigma of a juvenile record. In the twenty-first century, juvenile records are electronically stored, cata- logued, and widely available. While sealed records cannot ordinarily be obtained or reviewed, the