Permits access to conviction records maintained by the division of criminal justice services of volunteers and prospective volunteers by New York state chapters of Big Brothers/Big Sisters of America, Inc., upon the consent of such volunteers and prospective volunteers; requires confidentiality in handling such records and designates breach of confidentiality as a class E felony; requires notice to volunteers and prospective volunteers of procedures to have access to such division of criminal justice services records and to verify the accuracy thereof.
BILL NUMBER: S723
TITLE OF BILL : An act to amend the executive law and the social services law, in relation to permitting access to certain conviction records by chapters of Big Brothers/Big Sisters of America, Inc.
PURPOSE : To permit conditional and limited access to certain conviction records of volunteer applicants to chapters of the Big Brothers/Big Sisters of America, Inc.
SUMMARY OF PROVISIONS : Section 1 Legislative Findings
Section 2 amends subdivision 8-a of Section 837 of the Executive Law, to allow the Division of Criminal Justice Services to charge a fee of up to fourteen dollars for conviction report services provided to a Big Brothers/Big Sisters Chapter.
Section 3 adds a new section 378-b of the Social Services law to allow New York State Chapters of Big Brothers/Big sisters access to conviction records for prospective volunteers as long as:
* Chapters only obtain this information for prospective volunteers who have direct contact with children;
* Only one person in the chapter is designated to review the conviction information;
* The conviction record is kept confidential;
* Inform the prospective volunteer that he or she will be subject to a background check and they may withdraw from the process at any time without prejudice;
* Destroy the records after they are used;
* Require that a signed informed consent must be submitted when requesting a conviction record along with a copy of the volunteers fingerprints.
Section 4 establishes the effective date.
JUSTIFICATION : This bill represents an attempt to balance the rights of individuals against unwarranted invasion of privacy and the need for proper screening of persons who would work closely with children in the Big Brothers/Big Sisters program. since the purpose of Big Brothers/Big Sisters is to encourage and develop close one-to-one relationships between children and volunteer adults, precautions must be taken in order to ensure, protect and maintain the integrity of the program. The Big Brothers/Big Sisters organization has legitimate concerns about the safety of its young participants, and the legislation would enhance the group's present screening process and preventative training programs.
LEGISLATIVE HISTORY : Senate: 2007-08 - S.3862 Referred to Finance 2005-06 - S.2716 Referred to Finance 2004 - S.856-A Referred to Finance 2003 - S.856 Referred to Finance 2002 - S.4020 Referred to Finance 2001 - S.4020 Referred to Finance 2000 - S.7162 Referred to Finance Assembly: 2004 - A.11248 Referred to Governmental Operations
FISCAL IMPLICATIONS : None to the state.
EFFECTIVE DATE : This act shall take effect in 120 days.
STATE OF NEW YORK ________________________________________________________________________ 723 2009-2010 Regular Sessions IN SENATE January 14, 2009 ___________Introduced by Sens. C. JOHNSON, AUBERTINE, DIAZ, ONORATO, PARKER, SAMP- SON, VALESKY -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the executive law and the social services law, in relation to permitting access to certain conviction records by chap- ters of Big Brothers/Big Sisters of America, Inc. THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative findings and intent. The legislature finds and declares that the volunteers who are friends of and role-models for children through chapters of Big Brothers/Big Sisters of America, Inc. provide an important and necessary service to the children of New York state. The legislature further finds that it is vitally important for chapters of Big Brothers/Big Sisters of America, Inc., to screen volun- teers in order to determine whether prospective or current volunteers have been convicted of any crimes involving children. In this manner, the risk should be diminished of having persons in volunteer positions directly interacting with children who are also persons with a history of abusing children, either physically or sexually. It is the intent of the legislature to support the already extensive volunteer screening process employed by chapters of Big Brothers/Big Sisters of America, Inc., by making available, upon request, to such chapters the conviction records of all volunteers and prospective volunteers who have or will have any contact with children through such chapters. It is also the intent of the legislature that in providing for access to the conviction records of volunteers or prospective volunteers who have or will have any contact with children through such chapters, the legislature will demonstrate its support for the provisions of the National Child Protection Act of 1993 allowing background checks for individuals with responsibility for the safety and well-being of children.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05834-01-9 S. 723 2
S 2. Subdivision 8-a of section 837 of the executive law, as amended by chapter 561 of the laws of 2006, is amended to read as follows: 8-a. Charge a fee when, pursuant to statute or the regulations of the division, it conducts a search of its criminal history records and returns a report thereon in connection with an application for employ- ment or for a license or permit OR RETURNS A NEW YORK STATE CONVICTION REPORT AND/OR A FEDERAL BUREAU OF INVESTIGATION CONVICTION REPORT THERE- ON AS REQUIRED BY SECTION THREE HUNDRED SEVENTY-EIGHT-B OF THE SOCIAL SERVICES LAW. The division shall adopt and may, from time to time, amend a schedule of such fees which shall be in amounts determined by the division to be reasonably related to the cost of conducting such searches and returning reports thereon but, in no event, shall any such fee exceed twenty-five dollars and an additional surcharge of fifty dollars. The comptroller is hereby authorized to deposit such fees into the general fund, provided, however, that the monies received by the division of criminal justice services for payment of the additional surcharge shall be deposited in equal amounts to the general fund and to the fingerprint identification and technology account. Notwithstanding the foregoing, the division shall not request or accept any fee for searching its records and supplying a criminal history report pursuant to section two hundred fifty-one-b of the general business law relating to participating in flight instruction at any aeronautical facility, flight school or institution of higher learning. S 3. The social services law is amended by adding a new section 378-b to read as follows: S 378-B. ACCESS TO CONVICTION RECORDS BY NEW YORK STATE CHAPTERS OF BIG BROTHERS/BIG SISTERS OF AMERICA, INC. 1. ANY NEW YORK CHAPTER OF BIG BROTHERS/BIG SISTERS OF AMERICA, INC., WHICH IS A VOLUNTARY ORGAN- IZATION ORGANIZED UNDER THE NOT-FOR-PROFIT CORPORATION LAW, MAY OBTAIN FROM THE DIVISION OF CRIMINAL JUSTICE SERVICES, THE NEW YORK STATE CONVICTION RECORD OR THE FEDERAL BUREAU OF INVESTIGATION CONVICTION RECORD FOR A VOLUNTEER OR PROSPECTIVE VOLUNTEER, SUBJECT TO THE FOLLOW- ING RESTRICTIONS: A. SUCH CHAPTERS SHALL OBTAIN SUCH CONVICTION RECORD ONLY FOR VOLUN- TEERS OR PROSPECTIVE VOLUNTEERS WHO HAVE DIRECT CONTACT WITH CHILDREN SERVED BY SUCH CHAPTER; B. SUCH CHAPTER SHALL DESIGNATE ONE INDIVIDUAL TO REQUEST, RECEIVE AND REVIEW SUCH CONVICTION RECORD, AND ONLY SUCH DESIGNATED PERSON SHALL HAVE ACCESS TO SUCH RECORD. SUCH CHAPTER SHALL REGISTER SUCH DESIGNATED INDIVIDUAL WITH THE DIVISION OF CRIMINAL JUSTICE SERVICES; C. SUCH DESIGNATED AND REGISTERED INDIVIDUAL IN EACH SUCH CHAPTER SHALL MARK SUCH CONVICTION RECORD "CONFIDENTIAL" UPON RECEIPT, AND SHALL MAINTAIN AT ALL TIMES SUCH CONVICTION RECORD IN A SECURE PLACE IN ORDER TO INSURE CONFIDENTIALITY. A PERSON WHO VIOLATES THE CONFIDENTIALITY REQUIRED BY THIS SUBDIVISION SHALL BE GUILTY OF A CLASS E FELONY; AND D. SUCH CHAPTER SHALL PAY THE FEE DETERMINED PURSUANT TO SUBDIVISION EIGHT-A OF SECTION EIGHT HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW FOR THE RECEIPT OF A NEW YORK STATE CONVICTION RECORD AND/OR THE FEE DETER- MINED PURSUANT TO THE CHILD PROTECTION ACT OF 1993 FOR THE RECEIPT OF A FEDERAL BUREAU OF INVESTIGATION CONVICTION RECORD. 2. BEFORE REQUESTING SUCH CONVICTION RECORD FROM THE DIVISION OF CRIM- INAL JUSTICE SERVICES, SUCH CHAPTER SHALL: A. INFORM ANY VOLUNTEER OR PROSPECTIVE VOLUNTEER THAT A REQUEST FOR A CONVICTION RECORD AND A REVIEW THEREOF IS REQUIRED IN ORDER FOR SUCH VOLUNTEER TO CONTINUE IN THE SAME VOLUNTEER CAPACITY OR FOR SUCH PROSPECTIVE VOLUNTEER TO BE ACCEPTED BY SUCH CHAPTER;S. 723 3
B. INFORM SUCH VOLUNTEER OR PROSPECTIVE VOLUNTEER THAT BEFORE SUCH CHAPTER MAKES A REQUEST FOR CONVICTION RECORDS, SUCH VOLUNTEER OR PROSPECTIVE VOLUNTEER HAS THE RIGHT TO OBTAIN AND REVIEW HIS OR HER OWN CONVICTION RECORD, PURSUANT TO THE PROCEDURES OF THE DIVISION OF CRIMI- NAL JUSTICE SERVICES; C. OBTAIN THE INFORMED SIGNATURE OF SUCH VOLUNTEER OR PROSPECTIVE VOLUNTEER ON A FORM PROVIDED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES WHICH INDICATES THAT SUCH VOLUNTEER OR PROSPECTIVE VOLUNTEER HAS: I. BEEN INFORMED OF THE RIGHT TO REVIEW HIS OR HER OWN RECORDS; II. EXERCISED OR WAIVED SUCH RIGHT TO REVIEW HIS OR HER OWN RECORDS; III. BEEN INFORMED OF THE REASON FOR SUCH REQUEST FOR HIS OR HER CONVICTION RECORD; AND IV. CONSENTED TO SUCH REQUEST; AND D. OBTAIN FINGERPRINTS FROM SUCH VOLUNTEER OR PROSPECTIVE VOLUNTEER, PURSUANT TO THE PROCEDURES OF THE DIVISION OF CRIMINAL JUSTICE SERVICES. 3. A PROSPECTIVE VOLUNTEER MAY WITHDRAW FROM THE APPLICATION PROCESS, WHETHER OR NOT HE OR SHE HAS HAD ACCESS TO HIS OR HER CONVICTION RECORD AND WHETHER OR NOT SUCH RECORD HAS BEEN RECEIVED BY SUCH CHAPTER, WITH- OUT PREJUDICE. IF THE CONVICTION RECORD OF SUCH PROSPECTIVE VOLUNTEER HAS BEEN RECEIVED BY SUCH CHAPTER, THE PERSON DESIGNATED BY SUCH CHAPTER TO HAVE ACCESS TO CONVICTION RECORDS SHALL DESTROY SUCH RECORD. 4. THE CONVICTION RECORD OF A VOLUNTEER SHALL BE DESTROYED BY THE PERSON DESIGNATED BY SUCH CHAPTER TO HAVE ACCESS TO CONVICTION RECORDS WHEN SUCH VOLUNTEER NO LONGER HAS DIRECT CONTACT WITH CHILDREN SERVED BY SUCH CHAPTER. 5. THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL PROVIDE A RESPONSE TO A NEW YORK STATE CHAPTER OF BIG BROTHERS/BIG SISTERS WITHIN FIFTEEN BUSINESS DAYS OF THE RECEIPT OF ANY REQUEST BY SUCH CHAPTER FOR A NEW YORK STATE CONVICTION RECORD AND/OR FEDERAL BUREAU OF INVESTIGATION CONVICTION RECORD IF: A. SUCH REQUEST IS MADE BY SUCH CHAPTER'S DESIGNATED INDIVIDUAL WHO IS REGISTERED WITH THE DIVISION OF CRIMINAL JUSTICE SERVICES; B. SUCH REQUEST IS ACCOMPANIED BY A FORM SIGNED BY THE VOLUNTEER OR PROSPECTIVE VOLUNTEER, WHO IS THE SUBJECT OF SUCH REQUEST, CONSENTING TO THE PROVISION OF SUCH RECORD; AND C. SUCH REQUEST IS ACCOMPANIED BY THE VOLUNTEER'S OR PROSPECTIVE VOLUNTEER'S FINGERPRINTS, OBTAINED PURSUANT TO THE PROCEDURES OF THE DIVISION OF CRIMINAL JUSTICE SERVICES. 6. THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL PROMULGATE THE RULES AND REGULATIONS NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION INCLUDING, BUT NOT LIMITED TO, RULES AND REGULATIONS PROVIDING FOR A HEARING FOR A VOLUNTEER OR PROSPECTIVE VOLUNTEER BEFORE REPRESENTATIVES OF SUCH DIVISION AND THE OFFICE OF CHILDREN AND FAMILY SERVICES FOR PURPOSES OF VERIFYING THE ACCURACY OF HIS OR HER CONVICTION RECORD AND FOR ACCESS BY SUCH PERSONS TO PERTINENT DOCUMENTS RELATED THERETO. 7. FOR PURPOSES OF THIS SECTION, "CONVICTION RECORD" SHALL MEAN ANY RECORD MAINTAINED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION OF CONVICTIONS OF A CRIME IN VIOLATION OF THE PENAL LAW OF THIS OR ANY OTHER STATE. S 4. This act shall take effect on the one hundred twentieth day after it shall have become a law.