Use and Dissemination Agreement for Access to State DNA Databank; Right of Subjects to Access Records, and Expungement

Section 6193.1 Definitions.

(a) The term "commissioner" refers to the Commissioner of the New York State Division of Criminal Justice Services, or his or her designee.

(b) The term "Division" refers to the NYS Division of Criminal Justice Services.

6193.2 Use and dissemination agreements.

Access to the DNA Databank shall be granted to an agency authorized by Article 49-B of the Executive Law, to have such access, pursuant only to a written use and dissemination agreement. A copy of each current use and dissemination agreement shall be filed with the Commission and maintained in a Division file for each participant laboratory at all times. The form of the agreements shall be determined by the Division. The use and dissemination agreement shall specify:

(a) duties of the Division to provide the requested access and information to authorized parties;

(b) duties of the user agency to receive, store and use all information covered by the agreement in compliance with all applicable State and Federal laws and regulations;

(c) duties of the user agency to familiarize all personnel and adhere to all regulations governing the receipt, storage and use of all information covered in the agreement;

(d) duties of the user agency to maintain records that support and justify inquiries and requests for DNA Databank searches, and make these records available to the Division during periodic audits performed by the Division;

(e) prohibitions on the redisclosure by the user agency of any information obtained from the DNA Databank to any unauthorized agency or person;

(f) specific policy for suspension of access, cancellation of access and/or fines for any violations of the terms and conditions of the use and dissemination agreement by a user agency, its employees or agents, and a policy for reinstating access or service by the Division only after the Division is satisfied that the causes of all violations have been eliminated;

(g) specific instructions allowing termination by either party of the agreement for any reason, with 30 days' notice.

6193.3 Right of subjects to access and review records.

All requests for access to and review of records relating to a subject of the DNA Databank, by such subject, will be reviewed on a case-by-case basis by the Division. In reviewing and responding to the request, the following steps shall be followed:

(a) The subject must:

(1) provide in writing his/her name; any aliases used; date of birth; NYSID (if known); sex; race; date of sentence for the index offense (if known); the jurisdiction of the court which sentenced the subject (if known); imprints of the right and left fingerprints having sufficient clarity to allow for SAFIS processing; current address; and current phone number (if available). This information must be submitted under the subject's signature and seal of a registered notary with the following authentication statement: "False statements made herein are punishable as a class A misdemeanor pursuant to section 210.45 of the New York State Penal Law"; or

(2) provide another alternative method of identification deemed satisfactory by the commissioner.

(b) The Division will verify whether a DNA sample was ever collected from an individual corresponding to such information provided in subdivision (a) of this section. If needed, the Division shall use other computerized databases within the authority of the Division to assist in fulfilling the subject's request.

(c) If no record is found using this information, or if there is any discrepancy discovered in the information submitted by the subject in the request, no information related to the DNA Databank will be provided to the subject. The subject will be notified of this decision by the Director of Forensic Services in writing within 30 days, by certified or registered mail, return receipt requested.

(d) If a record is found for the identified subject in the DNA Databank and no discrepancies are identified in the submitted information, a photocopy of the DNA Databank submission form and the results of the DNA analysis for the subject will be made in a form prescribed by the Division. The Director of Forensic Services will forward these copies with a written letter of authentication within 30 days, by certified or registered mail, return receipt requested.

(e) If, due to discrepancies in the information submitted by the subject in the request, DNA records and related information are not provided to the subject by the Director of Forensic Services, the subject is allowed to appeal the decision. In order to appeal the Director's decision, the subject must provide, in writing and under signature and the seal of a registered Notary, the nature of the subject's disagreement with the Director's decision. This appeal document shall be submitted to the Commissioner within 30 days of the date of the determination by the Director of Forensic Services.

(f) Upon receipt of the appeal, the Director of Forensic Services shall promptly transmit to the Commissioner copies of all records concerning the individual along with all papers and documents filed by the person in support of the appeal. The appeal shall be determined upon the records, papers and documents submitted, except that the Commissioner may request the Director of Forensic Services, or the individual, to furnish such further data as he or she deems necessary for the determination of the appeal.

A written notice of appeal to the Commissioner shall be acted upon within a reasonable time after receipt of the written notice of appeal. The Commissioner shall notify both the individual and the Director of Forensic Services of his or her decision in writing and in the event such decision reverses or modifies that of the Director of Forensic Services, shall require that appropriate action be taken with respect to the person's record.

6193.4 Expungement of DNA records.

(a) An individual whose DNA record has been included in the convicted offender index of the DNA databank or an individual whose DNA record has been included in the subject index of the DNA databank pursuant to a plea agreement may request expungement on the grounds that the conviction which formed the basis for such inclusion in the DNA databank was reversed or vacated or a pardon was granted. An individual shall provide the request in writing to the division along with a certified copy of the final court order reversing or vacating the conviction or a certified copy of the pardon. Upon receipt of such request for expungement:

(1) The division shall verify whether a DNA sample was ever collected from an individual with personal identifying data which corresponds with information provided in this subdivision. If needed, the division shall use other computerized databases within the authority of the division to assist in fulfilling the subject's request.

(2) If no record is found using this information, or if there is any discrepancy discovered in the information submitted by the subject or his or her representative in the request, the division shall notify the subject in writing within 30 business days, setting forth reasons why documents were not returned and requesting additional information, if appropriate, by certified or registered mail, return receipt requested. For purposes of this section, DNA record shall refer to the DNA record relating to the subject's conviction which has been reversed or vacated or which a pardon has been granted and for which expungement has been requested. Only the DNA records relating to the conviction that has been reversed or for which a pardon was granted shall be subject to these expungement procedures.

(3) If a record is found for the identified subject in the DNA databank and no discrepancies are identified in the submitted information, the division shall determine the location and extent of all documents related to the subject's DNA record. The list of documents identified in this search will be communicated by the division to the subject in writing within 30 days of the notification of need for expungement, by return receipt requested mail. In this same letter, the division shall define for the subject the expected time needed to obtain all copies of all documents to be returned to the subject. The time to obtain and return these records to the subject shall not exceed 120 days from the date of notification of the need for expungement.

(4) The division shall thereafter obtain all documents related to the subject's DNA databank record. After insuring that all documents, and all copies thereof, have been obtained, these records shall be catalogued and any DNA sample(s) obtained in connection with the subject conviction shall be destroyed. These documents, including a certification of destruction of the subject's DNA sample, if applicable, shall be forwarded to the subject of the expungement using return receipt requested mail.

(5) The catalogue of the documents returned to the subject or the subject's representative shall be maintained, with documentation of notification of the need for expungement and all related correspondence between the division and the subject, in a file at the division. After completion of all activities by the division related to this expungement, this file shall be sealed and maintained by the division for a period of three years and shall not be opened except pursuant to an order of a court of competent jurisdiction.

(6) At the end of this three-year period, the sealed file shall be disposed in accordance with the requirements of the State Archives and Records Administration (SARA) procedures.

(b) An individual whose DNA record has been included in the subject index of the DNA databank as a condition for participation in a temporary release, CASAT, or shock incarceration program; or as a condition of release on parole, post-release supervision, presumptive release, or conditional release on a definite or indeterminate sentence; or as a condition of probation or interim probation supervision may request expungement on the grounds that he or she no longer participates in a temporary release, CASAT, or shock incarceration program; or is no longer under the jurisdiction of the division of parole; or under probation supervision. An individual shall provide the request in writing to the division along with documentation sufficient to substantiate the request for expungement. Upon receipt of such request for expungement:

(1) The division shall verify that the subject is no longer participating in a temporary release program, CASAT, or shock incarceration program; is no longer under the jurisdiction of the division of parole; or no longer under probation supervision, as applicable. If needed, the division shall use computerized databases within the authority of the division to assist in fulfilling the subject's request. If the division verifies that the subject is no longer participating in a temporary release, CASAT, or shock incarceration program; under the jurisdiction of the division of parole; or under probation supervision, it shall obtain all documents related to the subject's DNA databank record. After ensuring that all documents, and all copies thereof, have been obtained, these records shall be catalogued and any DNA sample obtained in connection with the subject conviction shall be destroyed. These documents, including a certification of destruction of the subject's DNA sample shall be forwarded to the subject of the expungement using return receipt requested mail.

(2) The catalogue of the documents returned to the subject or the subject's representative shall be maintained, with documentation of notification of the need for expungement and all related correspondence between the division and the subject, in a file at the division. After completion of all activities by the division related to this expungement, this file shall be sealed and maintained by the division for a period of three years and shall not be opened except pursuant to an order of a court of competent jurisdiction.

(3) At the end of this three-year period, the sealed file shall be disposed in accordance with the requirements of the State Archives and Records Administration (SARA) procedures.