Let Inmate Lawyers See Records

1 Co-sponsor

• Kevin S. Parker

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 circum- stances in which all of the evidence considered by a DOCCS hearing offi- cer 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 attorneys 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 information 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.

Prior legislative history

Assembly bill reported to 3d reading in 2014, 2016 and 2018.

Fiscal implications

None

Local fiscal implications

None

Effective date

This act shall take effect immediately.