BILL NUMBER: S5824
SPONSOR: SEPULVEDA
 
TITLE OF BILL:
An act to amend the correction law, in relation to confidential hearing
records
 
PURPOSE:
To provide complete hearing records to attorneys representing inmates in
appeals of prison disciplinary hearings and other related legal
proceedings.
 
SUMMARY OF PROVISIONS:
Section 1 amends section 138 of the correction law to provide that
attorneys representing inmates in prison disciplinary hearings shall be
given the complete hearing record, but may not redisclose any confiden-
tial information to any person not otherwise authorized to obtain confi-
dential records.
Section 2 provides for an effective date.
 
JUSTIFICATION:
Inmates are not represented by counsel in prison disciplinary hearings
but may obtain counsel for the appeal of such hearings. Attorneys
representing inmates in such appeals obtain the administrative hearing
records through requests or through discovery if the proceeding is in
litigation. Attorneys are not given the parts of the administrative
hearing record that the department of corrections deems confidential,
including witness testimony by informants or any information that might
reveal the identity of such an informant.
Records that might be construed to show investigative techniques,
including statements by outside witnesses, such as visitors, who have
been interviewed by DOCCS investigators, are also sometimes denied. In
the most extreme of circumstances in which all of the evidence consid-
ered by a DOCCS hearing officer is provided by a confidential informant,
the attorney is often not permitted to know the substance of what was
said by the witness as well as who said it. It is difficult for attor-
neys to adequately represent inmates in prison disciplinary hearings
when they have to guess at the evidence against their clients. In many
cases, an attorney does not know the details of the allegations of a
client's misbehavior, cannot assess whether the hearing record actually
supports the finding of guilt against the client and cannot even assess
whether or not the client was correctly identified by the confidential
informant. In spite of the lack of information, the attorney has to
appeal hearings in which a client found guilty of violating the rules of
inmate conduct is sanctioned to time in solitary confinement that may
last for months or years.
Attorneys, as officers of the court, have ethical obligations and
responsibilities not shared by the general public. An attorney who diso-
beys the law or rules of ethics faces sanctions or disbarment. Further-
more, attorneys who represent inmates frequently deal with psychiatric
records that cannot be revealed to their clients so they are familiar
with the restrictions on sharing confidential information. Providing
confidential records to a New York State licensed attorney does not
represent the same kind of risk to the security of the prison system
that may exist in providing confidential records under FOIL to an inmate
or member of the public.
This bill specifically prohibits redisclosure of confidential informa-
tion so that any mention of such information would have to be sealed in
court or administrative proceedings and could not be revealed to the
inmate who is the subject of the disciplinary hearing. There is no risk
to the security of the prison system in providing attorneys with inmate
records in the context of an appeal of a disciplinary hearing where
redisclosure of the information in the records to persons not otherwise
authorized to obtain such records is prohibited.
 
LEGISLATIVE HISTORY:
S.5170 of 2023-2024: Referred to Crime Victims, Crime and Correction;
S. 2910 of 2021-22: Referred to Crime Victims, Crime and Correction;
S. 2674-A of 2019-20: Referred to Crime Victims, Crime and
Correction; 2014-2020: Assembly bill Reported to Third Reading
 
FISCAL IMPLICATIONS:
None.
 
LOCAL FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately.

Statutes affected:
S5824: 138 correction law