N.Y. Social Services Law § 496: Confidentiality

§ 496. Confidentiality. 1. Unless an investigation of a report

conducted pursuant to this article has been substantiated, all

information, including information identifying the subject of the report

and other persons named in the report, shall be sealed forthwith by the

vulnerable persons' central register, the state oversight agency and the

facility or provider agency. Such reports may only be unsealed and made

available, consistent with any other applicable state or federal law,

to:

(a) the state agency operating, licensing or certifying a facility or

program for the purpose of monitoring or licensing such facility or

program;

(b) any state agency operating, licensing, or certifying a facility or

provider agency when investigating a report of suspected abuse or

neglect involving the subject of a previously sealed report accepted by

the vulnerable persons' central register;

(c) the subject of the report;

(d) a court of relevant jurisdiction or a law enforcement official

when such court or official verifies that the report is necessary to

conduct an active investigation or prosecution of a violation of

subdivision four of section 240.50 of the penal law;

(e) the justice center medical review board, for the purposes of

preparing a fatality report pursuant to section five hundred fifty-six

of the executive law;

(f) the independent agency designated pursuant to subdivision (b) of

section five hundred fifty-eight of the executive law, provided that

such information is relevant to a matter within the legal authority of

such agency; or

(g) other persons named in the report, as defined in subdivision

thirteen of section four hundred eighty-eight of this article which

includes, but is not limited to, the service recipient's parent,

guardian or other person legally responsible for such person; provided,

however, that the names and other personally identifying information of

custodians and other service recipients shall not be included unless

such custodians and service recipients authorize disclosure.

Notwithstanding the prohibitions on non-redisclosure set forth in the

closing sentence of this subdivision, the service recipient, and such

service recipient's parent, guardian or other person legally responsible

for such service recipient may disclose information and reports made

available pursuant to this paragraph to an attorney, who shall not

further disclose except as is necessary for use by such attorney in

rendering advice, assistance and representation.

When a report is unsealed, persons given access to it shall not

redisclose such reports except as necessary to conduct such appropriate

investigation or prosecution and shall request that the court redact any

copies of such reports produced in any court proceeding to remove the

names of those persons irrelevant to the proceeding such as the source

of the report, the name of the subject, and other persons named in the

reports; or that the court issue an order protecting the names of the

subjects and other persons named in the reports from public disclosure.

2. Reports made pursuant to this article and found to be substantiated

as well as any other information obtained, reports written or

photographs taken concerning such reports in the possession of the

justice center, a state oversight agency, a delegate investigatory

entity, facility or provider agency covered by this article shall be

confidential and shall not be disclosed to any other party unless

authorized pursuant to this section or any other applicable state or

federal law. In the event that other applicable state or federal law

provisions are more restrictive than the provisions of this section, the

provisions of such other state or federal law shall apply. In accordance

with this section, such information shall be made available only to:

(a) a person who is the subject of the report;

(b) other persons named in the report, which includes, but is not

limited to, the service recipient's parent, guardian or other person

legally responsible for such person. Notwithstanding the prohibitions on

non-redisclosure set forth in subdivision four of this section, the

service recipient, and such service recipient's parent, guardian or

other person legally responsible for such service recipient may disclose

information and reports made available pursuant to this paragraph to an

attorney, who shall not further disclose except as is necessary for use

by such attorney in rendering advice, assistance and representation;

(c) the justice center;

(d) the applicable state oversight agency, the director or operator of

the applicable facility or provider agency and, as appropriate, the

local social services commissioner, the commissioner of the office of

children and family services, or the school district placing the service

recipient, or an agency providing adult protective services to the

service recipient;

(e) a physician who has before him or her a service recipient whom he

or she reasonably suspects may be or may have been abused or neglected;

(f) a court, upon a finding that the information in the record is

relevant to the determination of an issue before the court;

(g) a grand jury, upon a finding that the information in the record is

necessary for the determination of charges before the grand jury;

(h) any appropriate state legislative committee responsible for

legislation affecting vulnerable persons, provided, however, that no

information identifying or tending to identify the subjects of the

report or other persons named in the report shall be made available;

(i) any person engaged in a bona fide research purpose; provided,

however, that no information identifying or tending to identify the

subjects of the report or other persons named in the report shall be

made available to the researcher unless it is absolutely essential to

the research purpose and the justice center, after consultation with the

commissioner of the applicable state oversight agency, gives prior

approval;

(j) a facility or provider agency, other providers of services to

vulnerable persons in programs licensed or certified by any state

oversight agency, or any other provider agency as defined in subdivision

three of section four hundred twenty-four-a of this chapter or a

licensing agency as defined in subdivision four of section four hundred

twenty-four-a of this chapter, in accordance with the provisions of

subdivision two of section four hundred ninety-five of this article;

(k) a probation service regarding a person about whom it is conducting

an investigation pursuant to article three hundred ninety of the

criminal procedure law, or a probation service or the department of

corrections and community supervision regarding a person to whom the

service or department is providing supervision pursuant to article sixty

of the penal law or article eight of the correction law, where the

service or department requests the information upon a certification that

such information is necessary to conduct its investigation, that there

is reasonable cause to believe that the subject of an investigation is

the subject of a substantiated report and that there is reasonable cause

to believe that such records are necessary to the investigation by the

probation service or the department, provided, however, that only

substantiated reports shall be furnished pursuant to this subdivision;

(l) a district attorney, an assistant district attorney or

investigator employed by the office of a district attorney, a sworn

officer of the division of state police, of the regional state park

police, of a city police department, or of a county, town or village

police department or county sheriff's office or department upon written

verification that such information is necessary to conduct a criminal

investigation or criminal prosecution of a person, and that there is

reasonable cause to believe that such person is the subject of a report;

provided, however, that only substantiated reports shall be furnished

pursuant to this subdivision;

(m) the New York city department of investigation; provided, however,

that no information identifying the subjects of the report or other

persons named in the report shall be made available to the department of

investigation unless such information is essential to an investigation

within the legal authority of the department of investigation and the

justice center or the applicable state oversight agency gives prior

approval;

(n) a provider or coordinator of services to which a facility or

provider agency or social services district has referred a service

recipient or a service recipient's family or to whom the service

recipient or the recipient's family have referred themselves at the

request of such agency or social services district, when said service

recipient is reported to the vulnerable persons' central register as the

vulnerable person and when the records, reports or other information are

necessary to enable the provider or coordinator to establish and

implement a plan of service for the service recipient or the service

recipient's family, or to monitor the provision and coordination of

services and the circumstances of the service recipient and the service

recipient's family, or to directly provide services in accordance with

requirements established by the applicable state oversight agency to the

extent that the sharing of such information is not otherwise prohibited

by federal law; provided, however, a provider or coordinator of services

given access to information concerning a service recipient pursuant to

this paragraph shall be authorized to redisclose such information to

other persons or agencies which also provide services to the service

recipient or the service recipient's family only if an agreement has

been or will be reached between the provider or coordinator of service

and such facility or provider agency, operating state agency or local

district. An agreement entered into pursuant to this paragraph shall

include the specific agencies and categories of individuals to whom

redisclosure by the provider or coordinator of services is authorized.

Persons or agencies given access to information pursuant to this

paragraph may exchange such information in order to facilitate the

provision or coordination of services to the service recipient or the

service recipient's family;

(o) a disinterested person making an investigation pursuant to section

one hundred sixteen of the domestic relations law, provided that such

disinterested person shall only make this information available to the

judge before whom the adoption proceeding is pending;

(p) a criminal justice agency conducting an investigation of a missing

child or vulnerable adult where there is reason to suspect information

in a substantiated report under this article is needed to further such

investigation;

(q) the director or operator of the facility or provider agency and,

as appropriate, the local social services commissioner, commissioner of

the office of children and family services, or school district placing a

child in that program, the applicable executive agency, and, for any

report involving abuse or neglect of a child, any attorney appointed to

represent the child whose appointment has been continued by a family

court judge during the term of the placement and subject to the

limitations contained in section four hundred ninety-five of this

article;

(r) for any report alleging abuse or neglect of a child, a child

protective service of another state when such service certifies that the

records and reports are necessary in order to conduct a child abuse or

maltreatment investigation within its jurisdiction of the subject of the

report and shall only be used for purposes of conducting such

investigation and will not be redisclosed to any other person or agency;

(s) an attorney for a child, appointed pursuant to section one

thousand sixteen of the family court act, at any time such appointment

is in effect, in relation to any report in which the respondent in the

proceeding in which the attorney for the child is appointed is the

subject or another person named in the report, pursuant to sections one

thousand thirty-nine-a and one thousand fifty-two-a of the family court

act;

(t) officers and employees of the state comptroller, for purposes of a

duly authorized performance audit, provided that such comptroller shall

have certified to the keeper of such records that he or she has

instituted procedures developed in consultation with the justice center

to limit access to service recipient-identifiable information to persons

requiring such information for purposes of the audit and that

appropriate controls and prohibitions are imposed on the dissemination

of service recipient-identifiable information contained in the conduct

of the audit.

(i) Information pertaining to the substance or content of any

psychological, psychiatric, therapeutic, clinical or medical reports,

evaluations or like materials or information pertaining to such

vulnerable person or such person's family shall not be made available to

such officers and employees unless disclosure of such information is

absolutely essential to the specific audit activity and the justice

center gives prior written approval.

(ii) Any failure to maintain the confidentiality of service

recipient-identifiable information shall subject such comptroller or

officer to denial of any further access to records until such time as

the audit agency has reviewed its procedures concerning controls and

prohibitions imposed on the dissemination of such information and has

taken all reasonable and appropriate steps to eliminate such lapses in

maintaining confidentiality to the satisfaction of the justice center.

Such justice center shall establish the grounds for denial of access to

records contained under this section and shall recommend as necessary a

plan of remediation to the audit agency. Except as provided in this

section, nothing in this subparagraph shall be construed as limiting the

powers of such comptroller or officer to access records which he or she

is otherwise authorized to audit or obtain under any other applicable

provision of law;

(u) an entity with appropriate legal authority in another state to

license, certify or otherwise approve prospective foster and adoptive

parents where disclosure of information regarding the prospective foster

or adoptive parents and other persons over the age of eighteen residing

in the home of such prospective parents is required by paragraph twenty

of subdivision (a) of section six hundred seventy-one of title forty-two

of the United States Code;

(v) a social services official who is investigating whether an adult

is in need of protective services in accordance with the provisions of

section four hundred seventy-three of this chapter or a child is in need

of child protective services pursuant to the provisions of title six of

article six of this chapter, when such official has reasonable cause to

believe that such reports and information are needed to further the

present investigation;

(w) for reports alleging abuse or neglect of children, members of a

citizen review panel as established pursuant to section three hundred

seventy-one-b of this chapter; provided, however, such members shall not

disclose to any person or governmental official any identifying

information which the panel has been provided and shall not make public

other information unless otherwise authorized by statute;

(x) officers and employees of the education department and, where

applicable, the department of health, for the purpose of investigating

charges and maintaining professional discipline proceedings against the

professional license of the subject of the report pursuant to Title VIII

of the education law, and to employees of the education department for

the purpose of investigating charges and maintaining good moral

character proceedings against the teaching, school administrator or

school leader certificate or license of the subject of the report; and

(y) the independent agency designated pursuant to subdivision (b) of

section five hundred fifty-eight of the executive law, provided that

such information is relevant to a matter within the legal authority of

such agency.

3. (a) The executive director, in consultation with the applicable

state oversight agency may disclose information regarding the abuse or

neglect of a vulnerable person as set forth in this subdivision, and the

investigation thereof and any services related thereto, to persons other

than those authorized to receive records under subdivision two of this

section if otherwise permitted by applicable federal law and if he or

she determines that such disclosure shall not be contrary to the best

interests of the vulnerable person and any one of the following factors

are present:

(i) the subject of the report has been charged in an accusatory

instrument with committing a crime related to a report maintained in the

vulnerable persons' central register; or

(ii) the investigation of the abuse or neglect of the vulnerable

person or the provision of services by the facility or provider agency

has been publicly disclosed in a report required to be disclosed in the

course of their official duties, by a law enforcement agency or

official, a district attorney, any other state or local investigative

agency or official, or by judge of the unified court system; or

(iii) there has been a prior knowing, voluntary, public disclosure by

an individual concerning a report of abuse or neglect in which such

individual is named as the subject of the report; or

(iv) the vulnerable person named in the report has died or the report

involves the near fatality of a vulnerable person. For the purposes of

this section, "near fatality" means an act that results in the

vulnerable person being placed, as certified by a physician, in serious

or critical condition.

(b) For the purposes of this subdivision, only the following

information may be disclosed:

(i) the name of the abused or neglected vulnerable person;

(ii) the determination by the justice center and the findings upon

which such determination was based;

(iii) identification of services provided or actions, if any, taken

regarding the vulnerable person named in the report and his or her

family as a result of any such report or reports;

(iv) whether any report of abuse or neglect regarding such vulnerable

person has been "substantiated" as maintained by the vulnerable persons'

central register;

(v) any actions taken by the state oversight agency or the facility or

provider agency in response to reports of abuse or neglect of the

vulnerable person to the vulnerable persons' central register, including

but not limited to actions taken after each and every report of abuse or

neglect of such person and the dates of such reports; and

(vi) any extraordinary or pertinent information concerning the

circumstances of the abuse or neglect of the vulnerable person and the

investigation thereof, where the executive director, in consultation

with the commissioner of the applicable state oversight agency

determines such disclosure is consistent with the public interest.

(c) Information may be disclosed pursuant to this subdivision as

follows:

(i) information released prior to the completion of the investigation

of a report shall be limited to a statement that a report is "under

investigation";

(ii) when there has been a prior disclosure pursuant to paragraph (a)

of this subdivision, information released in a case in which the

investigation of the report has been completed but not substantiated,

information shall be limited to the statement that "the investigation

has been completed and the report has been unsubstantiated";

(iii) if the report has been "substantiated" then information may be

released pursuant to paragraph (a) of this subdivision.

(d) Any disclosure of information pursuant to this subdivision shall

be consistent with the provisions of paragraph (b) of this subdivision.

Such disclosure shall not identify or provide an identifying description

of the source of the report, and shall not identify the name of the

abused or neglected vulnerable person's siblings or children, the parent

or other person legally responsible for such person or any other members

of such person's household.

(e) In determining, pursuant to paragraph (a) of this subdivision,

whether disclosure will be contrary to the best interests of the

vulnerable person, the executive director shall consider the interest in

privacy of the vulnerable person and such person's siblings or children,

the parent or other person legally responsible for such person or any

other members of such person's household.

(f) Except as it applies directly to the cause of the abuse or neglect

of the vulnerable person, nothing in this subdivision shall be deemed to

authorize the release or disclosure of the substance or content of any

psychological, psychiatric, therapeutic, clinical or medical reports,

evaluations or like materials or information pertaining to such person

or such person's family. Any such information that applies directly to

the cause of the abuse or neglect of the vulnerable person may be

disclosed only if disclosure is not otherwise restricted by applicable

federal or state laws.

4. A person given access to the names or other information identifying

the subject of the report or other persons named in the report shall not

divulge or make public such identifying information unless he or she is

a district attorney or other law enforcement official and the purpose is

to initiate court action or the disclosure is necessary in connection

with the investigation or prosecution of the subject of the report for a

crime alleged to have been committed by the subject against another

person named in the report. Nothing in this section shall be construed

to permit any release, disclosure or identification of the names or

identifying descriptions of persons who have reported suspected abuse or

neglect to the vulnerable persons' central register or the state

oversight agency, facility or provider agency or other entity where such

persons are employed or with which they are associated without such

persons' written permission except to persons, officials, and agencies

enumerated in paragraphs (f), (g), (l), (m) and (v) of subdivision two

of this section. To the extent that persons or agencies are given access

to information pursuant to paragraphs (c), (d), (e), (k), (l), (m), (n)

and (p) of subdivision two of this section, such persons or agencies may

give and receive such information to each other in order to facilitate

an investigation conducted, or the provision of services, by such

persons or agencies.

5. Notwithstanding any contrary provision of this section, mental

hygiene legal service shall have access to all information, books,

records and data as provided for in subdivision (d) of section 47.03 of

the mental hygiene law.