Use and Dissemination Agreement for Access to State DNA Databank; Right of Subject to Access Records; and Expungement
- 6193.1 Definitions
- 6193.2 Use and dissemination agreements.
- 6193.3 Right of subjects to access and review records.
- 6193.4 Expungement of DNA records.
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 main-
tained 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 infor-
mation to authorized parties;
(b) duties of the user agency to receive, store and use all informa-
tion 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 infor-
mation 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 infor-
mation 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 follow-
ing authentication statement: "False statements made herein are punisha-
ble 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 satis-
factory by the commissioner.
(b) The Division will verify whether a DNA sample was ever collected
from an individual corresponding to such information provided in subdi-
vision (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 Data-
bank 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 Divi-
sion. The Director of Forensic Services will forward these copies with a
written letter of authentication within 30 days, by certified or regis-
tered 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 Direc-
tor's decision, the subject must provide, in writing and under signature
and the seal of a registered Notary, the nature of the subject's disa-
greement with the Director's decision. This appeal document shall be
submitted to the Commissioner within 30 days of the date of the determi-
nation 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 Commission-
er may request the Director of Forensic Services, or the individual, to
furnish such further data as he or she deems necessary for the determi-
nation 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; and
(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 insuring 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; and
(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; and
(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.