(a) Privileged correspondence is defined as correspondence addressed by an [inmate] incarcerated individual to any of the following persons or entities at their official business address, or, except as noted in subdivision (b) of this section, received from such persons or entities:

(1) Governmental/public officials. Any American Federal, state, or local government official, department or agency; any official of a nation, state, or tribe of which the [inmate] incarcerated individual is a citizen; [or the correctional association of New York State;]

(2) Legal services. Any attorney, approved legal representative, representative employed or supervised by an attorney, or any legal services organization; or

(3) Medical services. Medical personnel such as physicians and dentists; or hospitals.

(b) The following shall not be defined as privileged correspondence but shall be processed as general incoming correspondence in accordance with Part 720 of this Title, "[Inmate] Incarcerated Individual Correspondence Program":

(1) mail which is not delivered in an envelope bearing the identity and official business return address of one of the above listed persons or entities;

(2) mail received from a board of elections;

(3) mail received from the Department of Motor Vehicles;

(4) mail received from the State Education Department, excluding materials sent to [inmates] incarcerated individual marked "legal mail" by the New York State Library's Prisoner Services Project;

(5) mail received from any county or local tax assessor or clerk, except for a clerk of a court (note: notwithstanding that a county clerk may also be a clerk of a court, mail from a county clerk shall be processed as general incoming correspondence); [and]

(6) mail received from the Secretary of State, Department of State, corporation division or uniform commercial code unit of any state; and[.]

(7) mail received from the correctional association of New York State.

(c) This regulation does not, in itself, establish a confidential relationship between the sender and recipient of correspondence identified herein as privileged (e.g., a central office official in receipt of privileged mail may share that mail, and any response to it, as deemed appropriate). The privileges which apply to correspondence defined in this section relate to processing controls, allowances of limited free postage and advances of [inmate] incarcerated individual funds for postage. These privileges are detailed in section 721.3 of this Part.

Statutory Authority:

Article 6, section 112, subdivision 1 of the Correction Law provides the commissioner of corrections and community supervision with the superintendence, management, and control of the correctional facilities in the department and of the incarcerated individuals confined therein, and of all matters relating to the government, discipline, policing, contracts and fiscal concerns thereof. In this regard, the Department of Corrections and Community Supervision (DOCCS) interprets this authority to extend to promulgation of rules and regulations governing mail processing within correctional facilities for general and privileged correspondence.

Legislative Objectives:

In proposing this rule, DOCCS seeks to further the legislative objective of orderly and efficient operation of New York State Correctional Facilities. This rule will reduce the administrative burden on facilities in processing incoming privileged correspondence, thereby facilitating the timely and accurate processing of important and/or time-sensitive pieces of privileged correspondence for incarcerated individuals.

Needs and Benefits:

Correctional facilities are required to process privileged mail in a very strict time frame under Part 721 of Title 7 of the New York State Code of Rules and Regulations. Assembly Bill 1249 of 2021 (S875), signed into law on February 16, 2021 is designed to increase the Correctional Association of New York’s (CANY) ability to access and inspect New York State Correctional Facilities. One component of the bill allows CANY to distribute surveys and questionnaires directly to Incarcerated Individuals. This change will dramatically increase the amount of incoming mail classified as privileged under 7 NYCRR § 721.2 received at DOCCS facilities. As this new incoming correspondence largely consists of surveys, questionnaires, etc., the change in the rule would reduce the administrative burden of processing this incoming mail, without denying privileged status to worthy items.

Costs:

Compliance with this rule imposes no cost on the Department’s personnel or the inmates required to follow the rule.

This rule imposes no additional costs on the State or on the Department.

This cost analysis is based on the Department’s own review of its procedures.

Paperwork:

This rule imposes no reporting requirements.

Local Government Mandates:

This rulemaking imposes no program, service, duty, or responsibility on any county, city, town, village, school district, or other special district. It applies only to DOCCS correctional facilities.

Duplication:

There is no overlap or contract with any other legal requirements of the State or Federal government.

Alternatives:

The alternative is to not promulgate this regulation. However, DOCCS is doing so to revise the definition of privileged correspondence in order to relieve the administrative burden on facilities.

Federal Standards:

No federal standards are applicable to the subject matter of this rule.

Compliance Schedule:

Department personnel can achieve compliance with the rule upon its adoption.

A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. This proposal will change the definition of privileged correspondence for Incarcerated Individuals to reclassify certain types of mail as non-privileged.

A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on rural areas. This proposal will change the definition of privileged correspondence for Incarcerated Individuals to reclassify certain types of mail as non-privileged.

A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal will change the definition of privileged correspondence for Incarcerated Individuals to reclassify certain types of mail as non-privileged.